The Supreme Court's Civil Rights Jurisprudence and Competing Narratives

Peggy Cooper Davis, New York University Law School, Aderson Bellegarde Francois, Howard University School of Law, and Colin P. Starger, University of Baltimore School of Law, have published Beyond the Confederate Narrative. Here is the abstract.

A Confederate narrative haunts Supreme Court doctrine and unnecessarily weakens the Court’s civil rights jurisprudence. This narrative has several sources, but it is most significantly the creature of an embarrassed wish to preserve the right to engage in human chattel slavery. The Confederate narrative protected slave power, survived Reconstruction, and then protected Jim Crow and other forms of human subordination. Although its influence waned during the civil rights movements of the last century, the Confederate narrative survived in doctrine and has reemerged to help defeat claims that certain fundamental human rights are federally guaranteed and federally enforceable. According to what we term the People’s narrative, Reconstruction and the ratification of the 13th, 14th, and 15th amendments changed the constitutional balance of Federal, State, and People power, such that basic civil rights became the People’s privileges and the United States government became the ultimate protector of those rights. We attribute the Court’s failure to recognize important human rights to a failure to take appropriate account of the People’s narrative. This Article identifies and analyzes the dialectic between the Confederate and People’s narratives that has shaped the Supreme Court’s federalism and civil rights doctrine. Through careful exegesis of critical lines of Court opinions – attending especially to overlooked dissents and concurrences embracing the People’s narrative – we demonstrate how the Confederate narrative has subverted post-bellum ideals of human dignity and equal respect for all people. This demonstration is visually represented in an innovative, online series of doctrinal “maps” with links to significant judicial opinions.

Download the article from SSRN at the link.