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Spring 2002




University of Connecticut School of Law




Seldom, if ever, have the power and the purposes of legislation been rendered so impotent.... All that is left today are afew scattered remnants of a once grandiose scheme to nationalize the fundamental rights of the individual.

These words were written fifty years ago by Eugene Gressman, now William Rand Kenan, Jr. Professor Emeritus, University of North Carolina School of Law, as a description of what the courts, primarily the Supreme Court of the United States, had done with the civil rights legislation passed by Congress in the wake of the Civil War. Professor Gressman's article, The Unhappy History of Civil Rights Legislation,2 provides a detailed and comprehensive picture of the mischief wrought by the Supreme Court in the civil rights area, beginning with decisions dating to the Reconstruction Era, when slavery and the Civil War that ended it were still recent events.

Professor Gressman could not have known in 1952 that he was writing just before the dawn of what has been called the Second Reconstruction, when a civil rights movement would grip the country, resulting in numerous new civil rights statutes and many Supreme Court rulings favorable to the enforcement of civil rights, including racial equality. Racial injustice, discrimination and prejudice remain high on the social and political agenda fifty years after Professor Gressman's observations-despite the civil rights movement, the enactment of numerous civil rights statutes (including the Civil Rights Act of 1964 and the Voting Rights Act of 1965), and the reinvigoration of many important provisions of the civil rights statutes of the 1860s and 1870s. Ongoing controversies include racial issues such as affirmative action, racial profiling and environmental racism, and other non-racial questions concerning the rights of women, the disabled, homosexuals and religious minorities, among others.

In this Article, I address the last fifty years of the Supreme Court's treatment of civil rights legislation. I do not address broad normative questions of racial and social justice, but rather look, as did Professor Gressman, at the treatment of civil rights legislation by the federal courts, particularly the Supreme Court of the United States.

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