Trump v. Barbara · ¶221

Although the Civil Rights Act by its terms overruled Dred Scott, the Reconstruction Congress could not be sure that it would endure. Some questioned whether Congress had the constitutional power to enact the Civil Rights Act and thus feared that a hostile court might neuter it. See Vaello Madero, 596 U. S., at 175 (THOMAS, J., concurring). Others worried that “as soon as the Democrats came into power,” they would repeal the Act. H. Flack, The Adoption of the Fourteenth Amendment 95 (1908); accord, Foner, The Second Founding, at 68–71. Thus, when it passed the Civil Rights Act, the Reconstruction Congress was already drafting the Fourteenth Amendment. See id., at 55–92; K. Lash, The Origins of the Privileges or Immunities Clause, Part II, 99 Geo. L. J. 329, 349 (2011). Two months later, Congress would formally propose the Citizenship Clause of the Fourteenth Amendment to the States. See…

slip opinion, revised 7/01/26
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