Vol. 10 No. 10 (October 2000) pp. 541-543.

THE SUPREME COURT'S RETREAT FROM RECONSTRUCTION: A DISTORTION OF CONSTITUTIONAL JURISPRUDENCE by Frank J. Scaturro. Westport, Connecticut: Greenwood Press, 2000. 320 pp. Cloth $69.50. ISBN 0-313-31105-6.

Reviewed by Kenneth M. Mash, Department of Political Science, East Stroudsburg University.

The Supreme Court's invalidating of the Religious Freedom Restoration Act in CITY OF BOERNE v. FLORES (1997) based on nineteenth-century precedents and the Supreme Court's recent holdings restricting congressional use of the Commerce Clause provide good cause to stop to ponder the future of civil rights. How broad is congressional power under Section 5 of the Fourteenth Amendment? Are civil rights laws that depend on the Warren Court's broad interpretation of the Commerce Clause now in a precarious position? Of course, there would be no point to contemplating these questions if the Court had, from the beginning, adopted the Radical Republicans' expansive view of the Reconstruction Amendments. However, the 19th century Court narrowly construed these amendments and congress's power to enforce them. Following precedent, the Warren Court believed it was necessary to seek other avenues to help justify the constitutionality of civil rights statutes and to strike down segregation. Frank Scaturro argues that this was an unnecessary exercise made necessary because the Court never adopted the Radical Republican position, i.e., it has never been faithful to the "original meaning" of the framers of the Reconstruction Amendments, but in most cases adopted the arguments of those who opposed the measures.

Scaturro explains that he chooses the term "original meaning" to concentrate attention on the framers' "general principles." This can be differentiated from "original intent," which suggests that correct interpretation is dependent on "the extent to which the consequences of a constitutional provision were contemplated in the minds of its framers" (p. xi). While one may quibble with his distinction, he primarily means to emphasize that when searching for "meaning" one may go beyond the text of the Constitution. Having offered this distinction and emphasizing his concern for history, it is somewhat surprising that the journey beyond the text does not stray far. At the end of the first chapter, he explains that the study hopes to discern this meaning from "the constructions of legislators in Congress" (p. 6). Thus it is clear that the author's intention is to join in the long running, sometimes heated, ongoing debate over what were the intentions of the framers of the Reconstruction Amendments. Like the vast majority of the works that precede it, that intention is sought through analysis of legislative history. The new twist that Scatturo offers is that the meaning can be deciphered not only from the discussions and votes leading up to the passage of these amendments, but that also from the debates and votes on subsequent civil rights legislation.

Page 542 begins here

Since the text focuses so heavily on the Radical Republicans, the first chapter is appropriately devoted to explaining how, until recently, historians and the Court have been unfair to the protagonists and their aspirations. The second chapter provides a concise overview of the events leading up to the passage of the civil rights legislation and the Reconstruction Amendments. The chapter also begins to explain how the Court began to undermine federal efforts. Chapter three, which discusses the Court's "retreat", comprises the vast bulk of the book. After chronicling the Court's initial cases concerned with Reconstruction measures, the second section turns to the Courts decisions in the 1870s. Here the author tackles in independent subsections BLYLEW v. UNITED STATES (1872), the SLAUGHTER- HOUSE CASES (1873), RAILROAD CO. v. BROWN (1874), etc. The case analyses (including relevant dissents) are intermingled with legislative history related to the appropriate amendments and statutes as well as legislative history, from subsequent statutes that the author believes illuminate the original meaning. Throughout, there is reference to and quotations from the appropriate legislative debates and the results of the various votes. This process is repeated in other sections involving jury discrimination cases, state action, segregation and the Fifteenth Amendment. Although these sections demonstrate the author's grasp of the material, the reader is often left wandering through a jungle of various ideas confused as by switches in subject matter, chronology, and cases. However, one can appreciate Scaturro's organizational dilemma as his fundamental argument required him to cover the breadth of the Reconstruction era, to interweave the meaning deciphered from various different but related legislative acts, while introducing the appropriate evidence. Nevertheless, this work would be a very difficult read for one not already somewhat familiar with the relevant subject matter. Consequently, I do not believe that this work is appropriate for students, except perhaps for graduate students in an advanced providing the proper preparation.

Furthermore, given the vast amount of material that has been written on this subject, it is somewhat surprising to see only infrequent reference made to the works of Alexander Bickel, Charles Fairman, Raoul Berger, Howard N. Meyer, Michael Kent Curtis, etc. It is not that there is no mention of these scholars in the text or that they are not cited of the notes. On the contrary, there are ample citations. However, missing from the work is the sense that it is part of the bigger project of accurate interpretation. Although it does sporadically mention opposing perspectives, there are points where one feels that amid the endless barrage of evidence, there should be a pause for a contrast. This was especially evident in Chapter Four, which brings a familiar methodology to the discussion of civil rights in the twentieth century. In the course of arguing that school desegregation is consistent with the original meaning of the Fourteenth Amendment School, he only mentions what he considers to be Bickel and Berger's "most direct evidence," i.e., a direct quotation from one legislator in opposition to the prospect. The point is not that Scaturro does not make a convincing argument; it is that the work seems to demand a greater scholarly context. Perhaps it is a measure of the quality of the ultimate argument that one is left wishing that the author would take on those who would undoubtedly be opposed to his perspective.

These criticisms aside, this book is worth reading. Given the correct amount of diligence and preparation the reader is

Page 543 begins here

rewarded with new evidence and an interesting perspective that support conclusions that while, not novel, are supported by the force of an excellent argument and by "connecting the dots" in a new way. For example, the author's discussion how the votes and arguments surrounding the passage of the Ku Klux Klan Act in 1871 provide evidence that the Framers of the Fourteenth Amendment meant to punish private action is first rate. The same can be said about the author's discussion of segregation in education in Chapter Four. He also convincingly argues (in spite of the aforementioned criticism) through the use of votes and debates on later bills how tolerance for segregation in education late in Reconstruction was due to political expediency, but was not necessarily inconsistent with the Framer's "original meaning." If one has the proper background, the various pieces start to come together quickly about halfway through the third chapter. One is further rewarded with Scaturro's very interesting argument in Chapter Four about how the Warren Court, by refusing to correct the record was forced to rely on grounds that continued to twist the original meaning further. The consequence is that now we are now faced pondering those questions posed at the beginning of this review. This book is worth reading by academics and lawyers with the appropriate background in legal history, the Fourteenth Amendment or Reconstruction.

CASE REFERENCES:

BLYLEW v. UNITED STATES, 80 U.S. 581 (1872).

CITY OF BOERNE v. FLORES, 117 S. Ct. 2157 (1997).

SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1873).

RAILROAD CO. v. BROWN, 84 U.S. 445 (1874).