STUDYING THE CAREERS OF KNOWLEDGE CLAIMS 239(Bourdieu 1977, 169). Indeed, there was textual support for much of his argument. Frantz’s
claim, however, was ignored.
The distinction between Frantz’s “state failure” reading and the conventional “state action”
reading should be highlighted. As scholars understand “state action,” for example, if state au-
thorities systematically fail to punish the race-based violence of the Ku Klux Klan, there is no
violation of the Fourteenth Amendment and the federal government may not prosecute the
Klansmen. Under the state-failure reading advanced by Frantz, the neglect of state authorities
does count as a violation, and the federal government may bring prosecutions. Thus, Frantz’s
state failure reading offers a less restrictive interpretation of Congressional power to enforce the
Fourteenth Amendment.
The validity of Frantz’s claim that the Civil Rights Cases has been misread can be demon-
strated (again) using the Cambridge School methods of Pocock and Skinner, though it is impos-
sible here to summarize the intricacies of this analysis (see Brandwein 2006). In brief, Cambridge
School methods permit recovery of the nineteenth-century legal categories used by the Waite
Court to articulate the concept I call “state neglect.” With the recovery of the old, nineteenth-
century legal paradigm, it becomes clear that the conventional view of Congress’s Section 5
power is a product of an anachronistic reading of the Civil Rights Cases.
Frantz’s claim is no less heterodox than Crosskey’s, so how can we explain why Frantz was
initially ignored while Crosskey was initially condemned? To answer this question, we need to
ask a series of questions: What practical impact would Frantz’s claims have had? What were the
institutional commitments of powerful communities of law professors? Was Frantz part of any
interpretive community that would have cited his work? Which social groups had an interest in
Frantz’s claims and were they powerful enough to be heard?
In order to identify the practical stakes attached to Frantz’s claims, we must examine Supreme
Court decisions at the time. What we find are Court decisions that dramatically lowered the prac-
tical stakes attached to Frantz’s claims. Frantz’s argument that the Waite Court’s Fourteenth
Amendment decisions permitted Congress to regulate private action carried little practical sig-
nificance after the Warren Court approved congressional regulation of private action under the
Commerce Clause and the Thirteenth Amendment.^32 Social groups that were interested in pro-
tecting black rights got the outcomes they wanted from the Court. They no longer needed to
search out legal arguments (like Frantz’s) that could help them.
The practical stakes for Frantz’s claim were low, then, while the practical stakes for
Crosskey’s claim were much higher.^33 Something else helps explain why Frantz was ignored:
reputation. It was not that Frantz’s reputation was tarnished by poor reviews of prior work. It
was that Frantz was not even a law professor. He was an editor at Bancroft-Whitney Law
Publishers in San Francisco, and his acknowledgments mentioned only one person, the late
Professor Douglas B. Maggs of Duke University Law School (Frantz 1964, 1353). Frantz was
not a part of a vibrant scholarly network, which prevented his article from gaining currency
(through citations, for example).
Although reputation is significant, we must also look to the institutional commitments among
law professors to complete an explanation of why Frantz was ignored. Frantz wrote at a time
when a new wave of scholarship was sweeping the legal academy. This new literature, written
during the 1950s and 1960s, condemned the Court of the 1870s and 1880s for dismantling Re-
construction and abandoning blacks to their former masters (Gressman 1952; Harris 1960; Wood-
ward 1966 [1951]). State action doctrine was identified in this literature as a central vehicle of the
Court’s subversion of Reconstruction. This scholarship, in short, demonized the Court of the
1870s and 1880s. In Frantz’s article, the Court looked far less demonic.