University of Chicago Law Review

Start Page



This Article interrogates the conventional understanding of United States v. Klein, a Reconstruction Era decision that concerned Congress’s effort to remove appellate jurisdiction from the Supreme Court in a lawsuit seeking compensation for abandoned property confiscated by the United States during the Civil War. Scholars often celebrate the decision for protecting judicial independence; so, too, they applaud the decision for shielding property rights against arbitrary legislative action and for preserving executive clemency from legislative encroachment. Absent from all contemporary accounts of Klein is its racialized context: The decision allowed an unelected judiciary to disable Congress from blocking the president’s promiscuous use of the pardon power to obstruct policies aimed at racial equality. These policies included land distribution to emancipated slaves—the proverbial “forty acres and a mule.” Klein, we show, was one of a number of Supreme Court decisions that helped to restore a white supremacist, aristocratic power base in the South. In particular, the decision is a coda to a tragic story in which property, central to the political reconstruction of the South on a multiracial basis, was returned to former enslavers and those who did commerce with them.

This Article makes three contributions. First, it augments the traditional narrative about Klein by highlighting the land dreams of Black freedom seekers and the Union’s broken commitments to Blacks about land acquisition and the promise of full citizenship, rather than exclusively focusing on the compensation claims of Confederate rebels and their allies. Second, it explores the erasure of racial politics from scholarly discussion of Klein, and the ways in which a purportedly neutral jurisdictional rule achieved extreme racialized effects. We argue that the Court’s assertion of interpretive supremacy was partner to partisan efforts to defeat Reconstruction that worked to maintain Black people in a subordinate class subject to legalized violence and economic exploitation. In particular, we bring the decision into dialogue with Reconstruction Era constitutional decisions, and examine how the Court’s reasoning and its implicit valorization of a “Lost Cause” ideology set the foundation for a hollowed-out construction of the Fourteenth Amendment that equates Black citizenship with emancipation only, without regard to the material conditions that make freedom and equality possible. Finally, we raise questions whether acknowledging Klein’s racialized context might motivate reassessing as well as reorienting the notion of jurisdictional neutrality and jurisdictional doctrines involving federalism, separation of powers, and federal judicial power.

Included in

Law Commons