Reconstruction – America's second revolution – was dead by 1877, and the fatal blow was inflicted by the Supreme Court. This has been the common wisdom since the dawn of the civil rights era, when a story about the Court's dismantling of Reconstruction spread across law, history, and political science. In this story, the Court stands accused of crippling the national government and forsaking the former slaves. The end of Reconstruction meant “the abandonment of the freed slaves to the prejudices of their former owners,” and the vehicle for abandonment was a legal rule known as “state action” doctrine. Elaborated by the Court in a series of decisions from 1876 to 1883, this rule is said to have put Klan violence and intimidation beyond the reach of the Fourteenth and Fifteenth Amendments, rendering those amendments largely useless in the federal effort to protect the physical safety and voting rights of blacks.

In this book, I elaborate an alternative account of the judicial settlement of Reconstruction. State action doctrine, I argue, was not a definitive abandonment. Indeed, an entire jurisprudence of rights and rights enforcement has been lost to twentieth-century observers. This jurisprudence included a Fourteenth Amendment concept of “state neglect” and a voting rights theory built from the Fifteenth Amendment and Article 1, Section 4. Constructed from legal categories that have long since disappeared, this jurisprudence contained broad possibilities as well as constraints and ambiguities, and modern observers have perceived its contours in only partial and inchoate ways.