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 property confiscated 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 the enforcement of policies aimed at racial equality, including 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 to 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 multi-racial basis, was returned to former enslavers and those who did commerce with them.

This Article makes three contributions. First, it decenters the traditional narrative about Klein by focusing on the land-dreams of Black freedom seekers, rather than on the compensation claims of Confederate rebels and their allies, and on the Union’s broken commitments to Blacks about land acquisition and the promise of full citizenship. 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 and to maintain Black people in a subordinate class subject to legalized violence and economic exploitation. Finally, we bring the decision into dialogue with Reconstruction Era constitutional decisions, and examine how the Court’s reasoning in Klein, and its 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, disregarding the material conditions that make freedom and equality possible.