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Blyew v. United States 80 U.S. 581 (1872)

BLYEW v. UNITED STATES 80 U.S. 581 (1872)

The Supreme Court first interpreted the civil rights act of 1866 in April 1872 in Blyew v. United States. That case narrowly construed a jurisdictional provision, in the act's Section 3, that granted jurisdiction to federal trial courts over criminal and civil "causes" that "affect[ed]" persons who "are denied or cannot enforce" in state court the rights of equality secured by the act's Section 1.

The case arose following the ax murder of a black family in rural Kentucky. Because a state statute precluded the testimony by a black person against a white defendant, it appeared probable that a state court would have excluded the dying declaration of the family's teenage son identifying the perpetrators as John Blyew and George Kennard. The federal attorney for Kentucky, Benjamin Bristow (who would soon argue this case as the first solicitor general of the United States), obtained a federal indictment for the state-law crime of murder against Blyew and Kennard and prosecuted them in federal court. To establish jurisdiction under the 1866 act, the indictment asserted that the defendants' victims were denied or could not enforce the same right to testify in state court as white persons enjoy. This was only one among many criminal and civil cases brought in the Kentucky federal court on such a theory.

Convicted and sentenced to death, the defendants appealed. Exercised by this federal interference with its state courts, Kentucky hired (and the Supreme Court permitted) Judge Jeremiah Black to represent Kentucky at oral argument.

The Court, through Justice william strong, held that in a criminal trial only the government and the defendant, but not the victim, are persons "affected" within the meaning of the 1866 act. Because neither of these parties had been denied rights under Section 1, the federal court lacked jurisdiction.

With its narrow construction of the "affecting" jurisdiction, the Court avoided the constitutional question of whether Congress can enforce the fourteenth amendment by granting federal court jurisdiction over state-law causes of action to avoid the risk of a biased state forum. The Court partially resolved this question in Strauder v. West Virginia (1880), which upheld the 1866 act's removal jurisdiction. But by then Congress had eliminated the narrowly interpreted "affecting" jurisdiction in its 1874 codification of United States statutes.

By its holding, the Court eliminated the important civil rights remedial tool of providing a nondiscriminatory federal forum to enforce the common law of crimes and torts (including common law duties of nondiscrimination). Since Blyew, the model for federal civil rights criminal enforcement has primarily involved the adoption of a substantive federal criminal statute, with the attendant constitutional and practical difficulties of defining federal rights under both the slaughterhouse cases (1873) and the civil rights cases (1883). Effective civil rights enforcement has been hobbled by this limitation, among others, ever since. Moreover, without the counterexample of the "affecting" jurisdiction, the Court has more plausibly developed doctrines restraining federal court intrusion on discriminatory state enforcement of state law.

The Blyew decision permits identifying the Supreme Court's hostility to federal civil rights enactments as early as the end of the first administration of ulysses s. grant. It also suggests that by the time the Court rendered the Slaughterhouse decision, it understood the implications that decision would have for federal civil rights enforcement. This precludes treating the Court's subsequent decisions limiting civil rights legislation as merely expressing a consensus of the political branches reached in the waning days of reconstruction.

Blyew is also noteworthy because Justice joseph p. bradley, in dissent, first put forward a theory of a group right to the adequate protection of the law and the "badges and incidents" theory of the thirteenth amendment found in the Civil Rights Cases.

The Court's failure to appreciate a class's cognizable interest in the effective protection of the law continues to the present. Blyew, for example, anticipated Linda R. S. v. Richard D. (1973) a century later, in which the Court held that a crime victim lacked standing to challenge a prosecutorial decision, because it directly affected only the state and defendant.

Robert D. Goldstein
(1992)

Bibliography

Goldstein, Robert D. 1989 Blyew: Variations on a Jurisdictional Theme. Stanford Law Review 41:469–566.

Kazcorowski, Robert 1985 The Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866–1876. New York: Oceana.

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