New York University Public Law and Legal Theory Working Papers

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Ever since the United States was reconstituted after the Civil War, a Confederate narrative of states’ rights has undermined the Reconstruction Amendments’ design for the protection of civil rights. The Confederate narrative’s diminishment of civil rights has been regularly challenged, but it stubbornly persists. Today the narrative survives in imprecise and unquestioning odes to state sovereignty. That appreciation of the doctrines of federalism and separation of powers should govern adjudication of the Constitution’s meaning is unarguable. That it should preclude national responsibility for the protection of human rights is, however, unacceptable.

We analyze the relationship, over time, between assertions of civil rights and calls for the protection of local autonomy and control. This analysis reveals a troubling sequence: The Confederate narrative was shamefully intertwined with the defense of American chattel slavery. It survived profound challenges raised by post-Reconstruction civil rights claimants, and by mid-Twentieth century civil rights movements, and it reemerges regularly to pose questionable but unanswered challenges to calls for national protection of civil rights. Our close examination of the Confederate narrative’s jurisprudential effects exposes an urgent need to address the consequential but under-recognized tension between human and civil rights in the United States on the one hand and local autonomy on the other.

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reconstruction, narrative, slavery, constitutional law, civil rights, federalism, 14th amendment, 13th amendment