34923_hlc 49-2 Sheet No. 50 Side A 06/09/2014 15:03:23 — — and espe- , first ex- Washing- , narrowed played a cru- Cruikshank City of Boerne , and Cruikshank , not the far more famous , not the canonical * United States v. States United Davis , Slaughter-House Cases City of Boerne v. Flores or Cruikshank , the legal profession’s chosen focus for Cruikshank (1876) is an unacknowledged landmark of (1876) is an unacknowledged Slaughter-House , James Gray Pope Harvard Civil Rights-Civil Liberties Law Review , not the notorious (1876) Belongs at the Heart of the Heart Belongs at (1876) Civil Rights Cases Plessy v. Ferguson , limited the Fourteenth Amendment to protect only against , limited the Fourteenth Cruikshank , announced that the Fourteenth Amendment’s Equal Protection , announced that the has been omitted from the mainstream narrative and pedagogical has been omitted from the mainstream narrative lays bare the true origin of those principles in affirmative judicial lays bare the true origin of those principles , not the Civil Rights Cases the American Constitutional Canon Constitutional the American United States v. Cruikshank United States v. Cruikshank Despite its enormous jurisprudential and historical importance, however, Despite its enormous jurisprudential and historical American constitutional jurisprudence. American constitutional Civil Rights Cases state action; Cruikshank against effective law enforce- intervention immunizing overtly racist terrorism ment. By contrast, the Privileges or Immunities Clause of the Fourteenth Amendment to exclude Clause of the Fourteenth Amendment the Privileges or Immunities Bill of Rights; rights enumerated in the and against provably intentional race discrimination; Clause protected only Cruikshank ton v. Davis cepted the Fourteenth Amendment from the general principle that Congress en- Amendment from the general principle that Congress cepted the Fourteenth powers. the means of implementing its constitutional joys discretion to select of this Article holds true, Historically, if the argument launching the one-party, segrega- cial role in terminating Reconstruction and in the South until the 1960s.tionist regime of “Jim Crow” that prevailed The unleashed the second and deci- circuit court opinion of Justice Joseph Bradley while the ruling of the full Court sive phase of Reconstruction-era terrorism, of the black-majority ensured its successful culmination in the “redemption” states. Cruikshank canon of constitutional law. The results have been obfuscation and distortion. Unlike the announced in from which students learn the principles actually Snubbed Landmark: Why Landmark: Snubbed Cruikshank * Professor of Law and Sidney Reitman Scholar, Rutgers University School of Law. My intellectual debts on this project go back to my dissertation defense, when Hendrik Hartog, intellectual debts on this project go back to forcefully steered me toward the problem seconded by Daniel Rodgers and Keith Whittington, of race and class. Peter Kellman provided essential advice on the overall approach. Jim Atle- Alan Hyde, John Leubsdorf, Ken Matheny, son, Bill Fletcher Jr., Eric Foner, Barry Friedman, E. Roberts, Ahmed White, Rick Valelly, Richard Davies Parker, Richard H. Pildes, Dorothy criticisms and suggestions on previous drafts. and Rebecca Zietlow provided invaluable far beyond the call of duty to point out numer- Pamela Brandwein and Michael Klarman went ous weaknesses in the argument. The Article also benefitted from critical comments at the at the College of New Jersey in 2011, the 2011 second annual Alan Dawley Memorial Lecture Rutgers-Newark Law Faculty Colloquium, the Cornell Law Faculty Colloquium, the 2013 the ClassCrits V Conference at the University of 2011 West Virginia Law Faculty Colloquium, the Wisconsin Law School, the 2012 How Class Works Conference at SUNY Stony Brook, 2009 LatCrit XIV Conference at American University in Washington, D.C., and the 2013 Law and Society Association International Meeting in Boston.and Lyons, Susan Axel-Lute, Paul Caroline Young of the Rutgers-Newark Law Library provided indispensible assistance navi- gating the rapidly changing research landscape to find sources. Last but by no means least, many thanks to the editors of the cially to Ethan Prall for contributions ranging from meticulous cite checking to big-picture substantive suggestions. \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 1 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 50 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 50 34923_hlc 34923_hlc 49-2 Sheet No. 50 Side B 06/09/2014 15:03:23 R R R R R R R R R R R R R R R 1 IVI- , D . 412 .... 395 EGIONS http://perma.cc/ , R Cruikshank AW AND ...... 401 , and the entire TATES With L Cruikshank . 407 ...... 428 S AND THE , BOUT archived at NITED A U Cruikshank ERROR Cruikshank. T Add BROGATION OF HITE ONTENTS A ...... 398 , http://www.census.gov/population/www/docu ACE FOR THE C ...... 394 , W A-18]. Cruikshank. 1873 NTRODUCTION ABLE I – OUNTERARGUMENTS T A-18. R ABLE OF ...... 405 ...... 423 ...... 434 available at C T , ABLE ENSUS OURT AND THE starring the Supreme Court as the primary protector of Supreme Court as the starring the , 1865 ’s Constraints on Enforcement of ’s Causal Contribution to the Demise C , T 1877 C ...... 427 – ...... 441 ...... 415 OURTS UREAU Brown ONSTITUTIONALISM a role that, ironically, the Court carved out for itself by truncating ironically, the Court carved a role that, : 1870 (2002) B ...... 386 C to , 1874 C — UPREME ...... 445 Reconstruction Cruikshank Cruikshank Reconstruction Court Labor S TATES ENSUS Plessy RDER ONTROVERSY AND RUIKSHANK LACK OWER HE S SIONS D. The Supreme Court and the Betrayal of C A. B. C. Assessing the Performance of Bradley and the Full L A.Expensive Aid from Military Forces We Ask for No B. of Terror A Fearful Reign C. Enforcement in the Lower Courts Anti-Klan O A. in Justice Bradley’s Circuit Court Opinion B. on the Ground The Impact of Justice Bradley’s Ruling C. Justice Bradley and the “Normal Condition” of Southern AND confession and atonement, merely let stand the legal product of a white suprem- product of the legal let stand merely and atonement, confession to owed its existence that government acist state in the dimensions of time-honored notions in ways that upset narrative shifts and class. popular constitutionalism, separation of powers, federalism, safely off stage, American law students are treated to a happy tale of progress are treated to a American law students safely off stage, from civil rights Congress’s civil rights powers in Congress’s Between 1867 and 1876, white supremacists waged a bloody campaign Between 1867 and 1876, white supremacists U.S. C I. B , II. T 1 III. C ONCLUSION NTRODUCTION mentation/twps0056/tabA-18.pdf (last visited Apr. 2, 2014), N2UM-5WMU [hereinafter to nullify the constitutional rights of black Americans and their allies in the to nullify the constitutional rights of states of the former Confederacy. The stakes were high. African Americans in Mississippi, South Carolina, and made up a majority of the population Louisiana; more than 40% in Alabama, Florida, Georgia, and Virginia; and more than a quarter in Arkansas, North Carolina, Tennessee, and Texas. C I 386 Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 2 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 50 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 50 34923_hlc 34923_hlc 49-2 Sheet No. 51 Side A 06/09/2014 15:03:23 R R HE ISE AS- , at At R : T 8 ECON- M OLFAX R 1877 – C TRUGGLES . S 103 (2008). OLFAX HE – C : T , 1863 96 EATH OF HE U.S. Attorney IED D , T 7 OLITICAL ATTLES AND THE Some hours later, ECONSTRUCTIONS D P 6 EITH B R K EVOLUTION 198, 205 (2003) LACK WO AND THE United States v. Cruik- , R T TREET NNA REEDOM : B A ECONSTRUCTION HE S F EET EE R , T ERROR AY F IGRATION L T UR Congress responded vigorously Congress responded M D NFINISHED RLEANS 3 O HITE HE O ALELLY U S ’ REAT EW , W , T NDER ETRAYAL OF 12 (2006); G – N M. V B U 96 (2004). ANE IVE OWER MERICA 109 L P : F ATION : A ICHARD AR R AND THE Snubbed LandmarkSnubbed 387 grew out of a pitched battle between black grew out of a pitched battle between If black Americans were permitted to exercise permitted were Americans If black LACK , W 2 HARLES , A N B C LAVERY TO THE OURT S AHN NCIVIL C H NFRANCHISEMENT ECONSTRUCTION , U TORY OF E R ECONSTRUCTION S Cruikshank TEVEN note 2, at 289; note 6, at 266. , R UPREME OGUE S 03 (2008); LACK OUTH FROM – S 4 ADICAL B NTOLD S supra ONER supra R THE K. H , U , AND SACRE , 101 F STRUCTION IN THE HE URAL (1876). AHN ANE RIC 5 AMES R : T During this period, the Supreme Court pronounced judgment on the the Supreme Court pronounced judgment During this period, ALL OF H 141 (1870); Enforcement (Ku Klux Klan) Enforcement Act of 1870, ch. 114, 16 Stat. 92 U.S. 542 (1876). J L Enforcement Act of 1870, ch. 114, 16 Stat. 141. E 3 4 5 6 7 8 2 F ASSACRE TRUGGLE FOR each stage of the proceedings, the government was met with determined re- each stage of the proceedings, the government of potential witnesses and a con- sistance, including beatings and murders James Beckwith brought charges under the Enforcement Act of 1870. James Beckwith brought charges under a contingent of whites led by William Cruikshank murdered most of the a contingent of whites led by William and thirty-eight. prisoners, probably between twenty-eight with enforcement legislation making it a crime for any person to join a con- making it a crime for any with enforcement legislation the U.S. Constitu- any citizen of rights guaranteed under spiracy to deprive tion or laws. their new constitutional rights to speak, assemble, and vote, they would en- and vote, they to speak, assemble, constitutional rights their new and locali- a swath of counties states as well as control in three joy majority ties across the rural south. its various successors, Klux Klan and The Ku outcome by to prevent this rifle clubs, sought White Leagues and including rights and to exercise their African Americans the capacity of destroying defend their communities.all forms of black power, including They targeted entrepreneurs), in- laborers and successful farmers and economic (assertive and asserted their and individuals who knew formational (schoolteachers societies, as (leaders of militias and self-defense rights), and paramilitary who stood up to intimidation).well as armed individuals In this context, opinion as the re- not so much the balances of public elections “registered battles for position.” sults of paramilitary 291, 314 (1988); merits of one case involving paramilitary conflict, merits of one case involving paramilitary shank Act of 1871, ch. 22, 17 Stat. 13 (1871). Republicans and white supremacist Democrats.Republicans and white supremacist After a dispute over the Grant Parish, Louisiana, armed 1872 election results in majority-black at Colfax.Republicans occupied the Parish courthouse By Easter Sunday, positioned behind an arc of shallow 1873, about 150 black defenders were earthworks.white Democrats, about twice as numerous and far A force of positions.better armed, surrounded the Republican After a three-hour battle, of prisoners. the Democrats prevailed and took a number S M Under peaceful conditions, it was not uncommon for black voter turnout to voter turnout for black not uncommon it was conditions, peaceful Under even 90%. 80% and reach 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 3 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 51 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 51 34923_hlc 34923_hlc 49-2 Sheet No. 51 Side B 06/09/2014 15:03:23 R R R , , 18 , Cruik- Many Compare 31, 138. – 19 The jury, , there had 11 that first lim- Slaughter-House 25, 128 15 – , 14 , 83 U.S. at 80. As Justice Bradley 16 739, 762 (1984). Prosecutors, grand ju- Prosecutors, despite the use of an the use despite . 9 EV Slaughter-House Cases — 15, 119, 124 – . L. R only nine of the ninety-eight nine of only The Grant Parish Case: Fourth Day LL — Black witnesses, corroborated by corroborated Black witnesses, Civil Rights Cases U. I The Civil Rights Cases 10 note 6, at 114 23 (2000); , 1984 The Lost Compromise: Reassessing the Early Un- – may well have been the single most im- may well have been supra , not the notorious , with The Slaughter-House Cases also announced the principle that the Fourteenth also announced the principle that the 54, EITH – , May 22, 1874, at 8 (reporting that “Justice Bradley thought K 1051, 1116 , 109 U.S. at 12. Cruikshank to hold that although the Fourteenth Amendment did to hold that although the Fourteenth The Parameters of Constitutional Reconstruction: Cruikshank . L.J. T ICAYUNE 53, 188; note 6, at 126, 153, 159. P S – Cruikshank , not the far more famous , not the far more famous note 6, at 112. HIO Supreme Court intervention came early, as Justice Joseph P. came early, as Justice Joseph Supreme Court intervention , 92 U.S. at 554. Two years later, the full Court upheld Bradley’s ruling, em- the full Court upheld Bradley’s ruling, Two years later, AILY supra 20 O 12 , 13 D supra at 186, 194, 203. , ANE , 61 , 92 U.S. at 552, 553 , and the Fourteenth Amendment And it was L at 136, 147 ANE 17 RLEANS . United States v. Cruikshank, 92 U.S. 542, 559 (1876). United States v. Cruikshank, 92 U.S. 542, 559 109 U.S. 3, 13, 19 (1883). Cruikshank The Civil Rights Cases 83 U.S. 36, 80 (1873). Robert C. Palmer, United States v. Cruikshank, 25 F. Cas. 707, 714 (Bradley, Circuit Justice, C.C.D. La. Id. L See id. 708 (Bradley, Circuit Justice, C.C.D. La. United States v. Cruikshank, 25 F. Cas. 707, Slaughter-House Jurisprudentially, See Cruikshank O 14 15 16 17 18 19 20 9 10 11 12 13 EW influential leaders, including Bradley and various members of Congress, influential leaders, including Bradley read it did include “rights mentioned in the not incorporate unenumerated rights, constitution.” which included nine whites, one person of color, and two persons of uncer- whites, one person of color, and two which included nine the remain- acquitted six of the defendants but convicted tain racial identity, rights of two black to interfere with the constitutional ing three of conspiracy Republicans. ited the Fourteenth Amendment to protect only against specifically identified ited the Fourteenth Amendment to protect private action. state violations, and not directly against observed, writing for the full Court in observed, writing for the full Court rors, and petit jurors all risked their lives to participate, and one witness was and one their lives to participate, petit jurors all risked rors, and knife attack. in a retaliatory nearly killed already been a “quite full discussion” of the state action issue in already been a “quite full discussion” shank an undercover white Secret Service agent who had gathered accounts from had gathered accounts Service agent who white Secret an undercover victims had taunted their that the perpetrators testified white participants, to death. while cutting and shooting them with racial epithets Bradley, riding circuit, issued an opinion in June of 1874 overturning the issued an opinion in June of Bradley, riding circuit, convictions. bracing his reasoning on all but one of the central points. bracing his reasoning N Cruikshank ironclad riverboat and a force of soldiers soldiers a force of and riverboat ironclad Supreme Court. ruling ever issued by the United States portant civil rights It was men initially indicted could be located and arrested. indicted could men initially 1874) (No. 14,897); Bryan H. Wildenthal, 1874) (No. 14,897). derstanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment Cruikshank that resolved whether the Privileges or Immunities Clause of the Fourteenth that resolved whether the Privileges in the Bill of Rights. Amendment protected the rights enumerated 388 that so effective suspects shield effort to certed Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 4 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 51 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 51 34923_hlc 34923_hlc 49-2 Sheet No. 52 Side A 06/09/2014 15:03:23 R R , , S ’ C- P. — & The not ALVIN HILIP C EIDMAN W. M Justice ASES AND (11th ed. AMISAR 25 (2010) (not first ex- . & P : C M. S K R ONSTITUTION Cruikshank ICHAEL Giles v. Harris AW , J C ALE OUIS L TATES UESTIONS , M Jamal Greene, , L Democracy, Anti-De- ., Y S Q R See (3d ed. 2009) (not ex- SKRIDGE — , J TONE Cruikshank NITED ALABRESI Judged by its jurispru- Judged by N. E ’s impact on the ground. (3d ed. 2009) ( U R. S HEMES FOR THE 23 ALLON IBERTIES ONSTITUTIONAL G. C : T AW L OMMENTS . 963 (1998). Although the full case a dramatic demonstration of a dramatic demonstration C ILLIAM L C AW EV H. F Finally, — EOFFREY , W L — TEVEN G 21 ODERN , S Cruikshank . L. R 295 (2000) (proposing that should be relegated to the “anticanon,” the . ICHARD ASES ARBER , M OWERS AND ARV : C , R : P H A. F AULSEN AW ONSTITUTION OF THE ONSTITUTIONAL belongs at the center of our pedagogical at the center of our belongs AW note 239. P OMMENT OTUNDA L ONSTITUTIONAL , 111 C L HOPER , C Cruikshank ANIEL . C C HE D Snubbed LandmarkSnubbed 389 infra TOKES D. R that Congress enjoys discretion to select the to select enjoys discretion that Congress , T S H. C 22 ONST , . 379 (2011). The present Article, then, may be situated in an C RAY EV 31 and accompanying text. ESSE Cruikshank ONALD – J HEMERINSKY R , 17 ICHAEL ONSTITUTIONAL ATERIALS ON C ONSTITUTIONAL 55. 57. M L. B 90 (4th ed. 2009) (mentioned in note on Second Amendment); . L. R – – receives sparse attention in mainstream constitutional law receives sparse attention in mainstream – M , C C RWIN ARV E 189 H notes 329 AMUEL , HIFFRIN MERICAN ASES AND , 125 not enough to prevent white supremacists from regaining control of not enough to prevent white supremacists & S Students learn about the Reconstruction Amendments through a va- Students learn about the Reconstruction ENTURY , C , A 24 H. S (10th ed. 2012) (not excerpted or discussed); Cruikshank See infra See, e.g. 92 U.S. at 554 17 U.S. 316, 357 (1819). 92 U.S. at 551 see Jack M. Balkin & Sanford Levin- On the pedagogical canon of constitutional law, 26 — Despite its enormous jurisprudential and historical importance, how- Despite its enormous jurisprudential The same conclusion follows from The same conclusion C The Canons of Constitutional Law 25 26 21 22 23 24 ASSEY OTES ONNELL HIRD TEVEN RICKEY the black-majority states. ever, texts. Bradley’s circuit court opinion disrupted the federal enforcement effort and opinion disrupted the federal enforcement Bradley’s circuit court that ousted nu- campaign of paramilitary terrorism unleashed a coordinated the “redemp- Republican officials and made possible merous county-level tion” of Alabama and Mississippi. The full Court’s ruling rendered civil rights enforce- permanent, terminated day-to-day Bradley’s judgment rights at election only the possibility of enforcing voting ment, and left open time dential impact, then, dential impact, canon. cepted the Fourteenth Amendment from the general principle, announced in principle, announced from the general Fourteenth Amendment cepted the v. Maryland McCulloch excerpted or discussed); means of implementing its constitutional powers. implementing its means of Anticanon 2011) (not excerpted or discussed); cerpted or discussed); subset of canonical decisions that are treated as negative precedents. subset of canonical decisions that are treated F S is not made here, it is possible that excerpted or discussed); mocracy, and the Canon emerging literature challenging the current makeup of the canon and proposing changes.emerging literature challenging the current makeup a For see Richard H. Pildes, pioneering example that influenced this Article, the judiciary’s capacity to alter the course of political development. the judiciary’s capacity son, T M C N that the decision of the Supreme Court in the Slaughter-House case merely meant that the that the decision of the Supreme Court in the in the constitution, and that the only rights claimed in that case were not rights mentioned were those therein mentioned.”).rights that the fourteenth amendment affected additional For discussion and documentation, see 189 U.S. 475 (1903), belongs in the canon). Amendment’s Equal Protection Clause and the Fifteenth Amendment’s ban Amendment’s the Fifteenth Clause and Equal Protection Amendment’s against only Americans African protected voting from exclusions on racial discrimination. intentional race provably 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 5 29-MAY-14 11:59 rulings provide the circuit court and Supreme Court Considered together, if the argument presented below holds true if the argument presented 34923_hlc 49-2 Sheet No. 52 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 52 34923_hlc 34923_hlc 49-2 Sheet No. 52 Side B 06/09/2014 15:03:23 , , 31 08 , IL- M. – City 548, , W Wash- 707 ONSTITU- EVINSON 454 (6th AVISON L ARAT EGULATION , C , and AW , D L ATERIALS : R ONSTITUTIONAL ONTEXT gets somewhat D. V the legal pro- M C C Davis six years after six years ANFORD 32 UNTHER ASES , ARKER , , S — G C P AW IN , in which the Four- , in which L ONATHAN REST J Cruikshank ASES AND ILSON , introduces students to , introduces students ERALD B ). ONSTITUTIONAL : C ROCESSES OF City of Boerne v. Flores , C AUL , J. W & G AW 72, 81 (1873). , P 47, 97 (abr. ed. 2005). P – – L or By that time, the country was By that time, the MAR See 46 LAUGHTERHOUSE URTIS ARLAN 30 S A C ONSTITUTIONAL 68, 71 ULLIVAN Cruikshank – Plessy v. Ferguson HE S. K , C EED ENT 35 (5th ed. 2006) (discussed in lengthy para- , decided in 1883 , decided Slaughter-House thus leaving students to wonder what thus leaving students – , T lays bare the true origin of those doc- K R OSS M. S 28 Slaughter-House Cases MENDMENT , AMELA URIE 334 ONSTITUTIONAL KHIL A G. R L ICHAEL , C & P M ATHLEEN & A K MAR The Slaughter-House Cases The Slaughter-House ILLIAM ATERIALS ); 1 A Cruikshank ONATHAN USHNET M IEGEL OURTEENTH The Civil Rights Cases & W F — AVID & J V. T D B. S ARK decided a century after decided a century ABBE ASES AND EVA 29 The Civil Rights Cases The Civil AND THE , , M IKRAM INKELMAN , , R : C from which law students learn the principles actually con- from which law students learn the Slaughter-House F The Civil Rights Cases M. L — at 241. 370 (17th ed. 2010) (mentioned in single sentence); 370 (17th ed. 2010) (mentioned in single sentence); & V Cruikshank AUL ALKIN LIAM TIONAL UNSTEIN , P AW ONALD This case is an odd choice to serve as the leading teaching vehicle on choice to serve as the leading teaching This case is an odd OHEN L R The Slaughter-House Cases, 83 U.S. 36, 67 426 U.S. 229 (1976). See id. 521 U.S. 507 (1997). 163 U.S. 537 (1896). Unlike R. S 27 C M. B 27 28 29 30 31 32 ECISIONMAKING OUGLAS ECONSTRUCTION ASS ACK fession’s chosen focus for confession and atonement, merely let stand the fession’s chosen focus for confession state government, a government that legal product of a white supremacist in the midst of a Second Reconstruction, made necessary by the failure of Reconstruction, made necessary in the midst of a Second the first. Finally, either the Court would have done in a case that did implicate that purpose. done in a case that did implicate the Court would have ington v. Davis 1253, 1264 (13th ed. 2009) (briefly mentioned in three notes). 1253, 1264 (13th ed. 2009) (briefly mentioned more attention in two historically oriented casebooks. (2011) (two-page discussion in note following ed. 2009) (one paragraph in note); J D graph following R the requirement of proving racial intention. the requirement of the issue not only because it did not resolve the crucial question of incorpo- because it did not resolve the crucial the issue not only that the case did not the Court repeatedly stressed ration, but also because Amendments, to purpose” of the Reconstruction involve the “one pervading enslaved people, protect the formerly D white supremacists had regained control of the Deep South including all the Deep South including control of had regained white supremacists states.three black-majority of the Privileges learn about the narrowing They Clause from or Immunities their allies, Americans or not by African was invoked teenth Amendment challenging a health a whites-only fraternity of butchers but by members of legislature of Louisi- racially integrated Reconstruction law enacted by the ana. C involving a Catholic Bishop’s religious freedom challenge to a local zoning involving a Catholic Bishop’s religious back on Congress’s discretion to ordinance, appear as the first cases cutting Amendments. choose the means of enforcing the Reconstruction 390 arose of which none cases, scattered and factually of chronologically riety conflict. paramilitary the decisive out of action state the encounter They Review Rights-Civil Liberties Law Civil Harvard in requirement [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 6 29-MAY-14 11:59 of Boerne ceived in trines in judicial intervention immunizing overtly racist terrorism against trines in judicial intervention immunizing effective law enforcement. By contrast, 34923_hlc 49-2 Sheet No. 52 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 52 34923_hlc 34923_hlc 49-2 Sheet No. 53 Side A 06/09/2014 15:03:23 R 38 E- R The Civil ROTEC- – P and 1622 (1986) . EV AND THE , Brown v. Board Brown rulings protected to . L. R safely off stage, stu- off stage, safely OLUM Race Relations Law and the C , 92 U.S. 542, 544 (1876), both Plessy Plessy ONSTITUTION Strauder v. West Virginia No wonder that, as Barry No wonder C , 86 35 Cruikshank . THE , Cruikshank state governments struggling for sur- state governments The Slaughter-House Cases The Slaughter-House ONGRESS , and those decisions slide to the periph- , and those decisions With With With regard to the three majority-black 1201, 1207 (2009). Cruikshank placed center stage, the jurisprudence of placed center stage, the jurisprudence : C 33 37 . . L. ONST United States v. Cruikshank Snubbed LandmarkSnubbed 391 QUALITY 36 E Cruikshank . J. C in support of A (2006); see also Randall Kennedy, into the story, and the entire narrative shifts in ways into the story, and Cruikshank Cruikshank 60 and accompanying text. – Reconstructing Reconstruction: Some Problems for Originalists (And U. P IGHTS . Add NFORCING national power in national power in R , 5 , E starring the Supreme Court as the primary protector of civil as the primary protector the Supreme Court starring 34 notes 58 Cruikshank , 163 U.S. at 538, and against IETLOW BECCA a role that, ironically, the Court carved out for itself by truncating carved out for ironically, the Court a role that, TION OF NDIVIDUAL — I Plessy 347 U.S. 483 (1954). roles of Congress and the courts, see For a more realistic analysis of the relative Barry Friedman, See infra 100 U.S. 303 (1879). E. Z In the dimension of separation of powers, our received narrative spot- In the dimension of separation of powers, Insert 33 34 35 36 37 38 Friedman has suggested, present-day “[c]onstitutional doctrine poorly un- doctrine “[c]onstitutional has suggested, present-day Friedman Reconstruction.” derstands the Reconstruction-era Court appears less remarkable for its particular stance the Reconstruction-era Court appears wholehearted embrace of the white su- on issues of federalism than for its not the very existence of legally con- premacist claim that states’ rights, and central constitutional question at stake stituted state governments, posed the during Reconstruction. of civil rights against the elected lights the Supreme Court as protector shines ( branches, a role in which it sometimes states, this reality was painfully apparent and could not have been over- states, this reality was painfully apparent of the issues.looked in the Justices’ consideration Far from protecting the states, the Court blocked the national rights of constitutionally sanctioned governments in the preservation of government from assisting official state law and order. With of Education dents are treated to a happy tale of progress from of progress tale to a happy are treated dents rights in civil rights powers Congress’s Tradition of Celebration: The Case of Professor Schmidt (critiquing celebratory narrative). arose out of events in Louisiana. Everyone Else, Too) that confound time-honored notions.that confound time-honored dimension of federalism, for ex- In the between national story has long featured the conflict ample, our mainstream rights.states’ and power of state Supreme Court appears as a protector The authority Civil Rights Cases owed its existence to its existence owed 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 7 29-MAY-14 11:59 vival against paramilitary insurrection.vival against paramilitary The ery. interpretive issues raised by turns out that four of the most important It involving the exer- Amendments were resolved in a case the Reconstruction cise of national power “state” jurisdiction only in the sense that, as argued by former Confederates only in the sense that, as argued by “state” jurisdiction authority was properly grounded not on and President Andrew Johnson, state Amendment, but on the pre the citizenry defined in the Fourteenth War (white) “people” of the state. 34923_hlc 49-2 Sheet No. 53 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 53 34923_hlc 34923_hlc 49-2 Sheet No. 53 Side B 06/09/2014 15:03:23 R R R , ). 39 The ROM supra : F , ALELLY Cruikshank V 2313, 2336 (1997). ECONSTRUCTION L.J. R ALE Y ORK OF , the system of Jim Crow , the system , at 169 (1994); , 106 W justified their actions by in- Korematsu v. United States v. Korematsu HE 1870 — – , T and 1860 Cruikshank , on the other hand, we see apparently AVILLE in turn S might never have existed. might never Plessy — AROLINA ULIE J rights against the elected branches, but by the elected rights against C Brown Subsequent cases continue this pattern, featur- Subsequent cases continue this pattern, Especially in black-majority areas, these orga- Especially in black-majority 34; – 43 41 The Constitution of Status OUTH S and , we see white butchers asserting the right to practice , we see white butchers asserting the protecting and casting African Americans in the middle-class and casting African Americans in 44 note 6, at 86. Plessy , however, and these cases fade in relative importance. in relative fade these cases and , however, It note 2, at 230 ABORER IN The Civil Rights Cases L Cases involving black laborers are ignored or marginal- Cases involving black laborers supra , Jack M. Balkin, , Lochner v. New York, 198 U.S. 45 (1905) (bakers); NLRB v. Jones & Laugh- 41. supra , ) and sometimes fails ( sometimes ) and 45 AGE – , United States marshals, prosecutors, courts, and troops were es- United States marshals, prosecutors, rights of legislative and executive protection.legislative and executive rights of Bradley and the Had Once freed from slavery, black Americans speedily organized a slavery, black Americans speedily Once freed from 42 W AHN OGUE 40 323 U.S. 214 (1944). See, e.g. H H The Civil Rights Cases, 109 U.S. 3, 4 (1883). See, e.g. Brown v. Bd. of Educ., 347 U.S. 483 (1954) (pupil); Sweatt v. Painter, 339 U.S. 629 Cruikshank Further, in the dimension of popular constitutionalism, most of the of popular constitutionalism, Further, in the dimension Finally, along the dimensions of race and class, our mainstream narra- Finally, along the dimensions of race Brown 39 40 41 42 43 44 45 LAVE TO race-related cases in our pedagogical canon and mainstream narrative feature our pedagogical canon and mainstream race-related cases in protection against victims petitioning courts for official people of color as race discrimination. rights, it would seem, hinged The enforcement of civil of (white) judges and officials.primarily on the actions Add like other subju- the reality that African Americans, and we begin to glimpse defending their own the main burden of asserting and gated groups, carried rights. Add on constitu- greatest influence have exerted its that the Court might turns out not by tional rights stripping in upheld the convictions full Court that gave rise to that gave voking a popular constitutionalist vision of (white) popular sovereignty.voking a popular constitutionalist vision In in a land torn by constitutional effect, federal forces acted as peacekeepers conflict. note 3, at 36 ing white workers nizations, not federal law enforcers, provided the first line of defense against law enforcers, provided the first line nizations, not federal white supremacist terrorists who or nonclassed roles of juror, railroad passenger, home buyer, law student, or nonclassed roles of juror, railroad and pupil. prosperous African Americans seeking equal access to public accommoda- prosperous African Americans seeking of New York and the “dress circle” tions including the Grand Opera House of a San Francisco theater. sential to the enforcement effort, but mainly to provide the modicum of law sential to the enforcement effort, but and their allies to exercise basic and order necessary for African Americans or death. rights without risking assault, torture, and declasses the black race.tive races the working class white In Slaughter-House Cases their trade. In “parallel politics” grounded on newly created political, labor, religious, and grounded on newly created political, “parallel politics” paramilitary organizations. lin Steel Corp., 301 U.S. 1 (1937) (steel workers). (1950) (law student); Shelley v. Kraemer, 334 U.S. 1 (1948) (home buyer); Plessy v. Ferguson, S 392and Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 8 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 53 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 53 34923_hlc 34923_hlc 49-2 Sheet No. 54 Side A 06/09/2014 15:03:23 R R R R R : 49 U. 70 In – AND , 112 IGHTS supra , NITED 50 , R 268 , 138 U LEXANDER ABOR IVIL A 1, 7 (1999). as one of a . OUTH AVILLE MANCIPATION , L C S EV S 10; E – ACE . L. R : R 101 (2006) (quoting OTTON Cruikshank AR ICH C ROMISE OF M P W EMOCRACY IN THE note 2, at 9 ONFEDERATE D OST , 98 IVIL , C L C supra REE IN THE HE , “It is impossible to separate “It is impossible ECONSTRUCTION F EVINE , T 48 R AHN L 97 (documenting widespread contempo- ISTORY OF note 48, at 268 (reporting that Georgia – H H URING THE James Ashley’s Thirteenth Amendment 1901, at 82, 113, 224 (2001); RUCE – ECOMING B OLUBOFF supra D xxvii; EATH OF , 18, 195 , B – G – D , 1865 ISA ONTESTED LAVES HE R The Labor Vision of the Thirteenth Amendment S see also C , T ONOVAN ORTH ONOVAN HE RM Snubbed LandmarkSnubbed 393 N O’D A : T O’D AR see also note 2, at xxv VA OTE W Caste, Class, and Equal Citizenship note 48, at 113 E ICHARDSON V IVIL supra REE AND , on the other hand, exemplifies the reality that through- the reality hand, exemplifies the other , on R , C . at 51; Nowhere is this clearer than in the period of Reconstruc- in the period of is this clearer than Nowhere F supra – and that the labor [is] all performed by the negroes.” and that the labor USAN Id note 2, at xxvi; OX , 47 S — OST ONER C IGHT TO F . 1697 (2012). P ; Lea S. VanderVelde, , Pollock v. Williams, 322 U.S. 4 (1944) (agricultural laborers); Bailey v. Ala- , Pollock v. Williams, 322 U.S. 4 (1944) (agricultural , R supra 4 437 (1989); Rebecca E. Zietlow, EV , LANS TO – HE . P EATHER EV Cruikshank , T ICHARDSON H ONER 85 (2009); . L. R R F Letter from Joseph P. Bradley to Carry Bradley (Apr. 30, 1867) (on file with the New See, e.g. William E. Forbath, See, e.g. Part I of this Article covers the period from 1865 to 1873.Part I of this Article covers the period It argues that 46 49 50 46 47 48 . L. R EYSSAR OLUM A OUTHERN TATES OLITICS IN THE such a context, the race question could not be separated from issues of class race question could not be separated such a context, the and labor control. a daunting but not impossible task, the proponents of Reconstruction faced of law and order to enable formerly namely preserving a sufficient level and defend their rights in the politi- enslaved African Americans to exercise the question of color from the question of labor,” explained one contempo- from the question of labor,” explained the question of color “for the reason highlighted by historian Eric Foner, rary newspaper account Southern States are of the laborers . . . throughout the that the majority present laborers.” nearly all the colored people are at colored people, and (2007); Confederate intellectual’s observation that after emancipation, negroes “having no land, [had to] labor for the landowner”); tion. have presented numerous historians past several decades, Over the was Amendments enforce the Reconstruction that the struggle to evidence of race and class. decided at the intersection note 41, at 2 Forbath, whose account centers on the twentieth century, mentions Forbath, whose account centers on the twentieth “lent its sanction to the reconstituted caste sys- number of cases in which the Supreme Court tem of the South.” C out American history, the overwhelming majority of African Americans of African majority the overwhelming history, out American memorable classes. to the laboring have belonged Forbath’s William In our consti- . . . at the heart” of and class lies “tangled knot of race phrase, a tutional history. Jersey Historical Society, MG 26, box 3, Joseph P. Bradley Papers, New Jersey Historical Society, Newark, N.J.). bama, 219 U.S. 219 (1911) (agricultural laborers); Hodges v. United States, 203 U.S. 1 (1906) bama, 219 U.S. 219 (1911) (agricultural laborers); (sawmill workers). P S la- planters “bluntly and repeatedly” described their goal as restoring “capital’s reign over bor”); rary perceptions that Reconstruction involved overlapping issues of race and class). 163 U.S. 537 (1896) (railroad passenger); Strauder v. West Virginia, 100 U.S. 303 (1880) 163 U.S. 537 (1896) (railroad passenger); Strauder (juror). for civil rights in the dimension of class as (2007) (recounting the twentieth-century struggle well as race). K S P ized. expressed a similar central legal figure in our story, Joseph Bradley, the to the whites, and remembered that the lands all belong view: “It must be buildings and sugar capital to improve them and put up they alone have the mills on them 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 9 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 54 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 54 34923_hlc 34923_hlc 49-2 Sheet No. 54 Side B 06/09/2014 15:03:23 R R Cruik- Cruik- They provided AND THE 52 , , which imposed strict , which imposed ERROR T 1873 – HITE Cruikshank Like the more familiar civil rights , W , 1865 51 note 1. OURTS supra , C 82. – A-18 OWER L ABLE ONSTITUTIONALISM T C note 2, at 77 ENSUS C LACK supra , I. B at 127; ONER has long been a subject of debate among historians.has long been a subject Part III addresses ’s constraints on enforcement, the extent of its causal contribution to the extent of its causal ’s constraints on enforcement, F Id. Between 1861 and 1865, more than four million black Americans Between 1861 and 1865, more than Though largely missing from the professional culture of law, from the professional culture Though largely missing 51 52 the main southern constituency for the Republican Party, which had emerged the main southern constituency for the dominant political party.from the Civil War as the United States’ Accord- (detailed in section I.A below) far ingly, their movement adopted a strategy the dimensions of both separation of different from that of its successor in powers and federalism. Where the more recent movement turned to the judi- the earlier one relied primarily on the ciary for relief from hostile legislation, elected branches.where the twentieth-century movement called upon And authority in the field of civil rights, the federal government to displace state the nineteenth-century movement sought more limited federal intervention to establish rights sufficient to enable black Americans to protect themselves in state politics. White supremacists responded with terror (recounted in movement of the twentieth century, the movement that they created claimed movement of the twentieth century, the vote, serve on juries, and enjoy equal basic freedoms including the rights to access to public accommodations. Unlike the twentieth-century movement, did not fit the model of an “insular however, the nineteenth-century version protection.minority” in need of counter-majoritarian black contrary, the To the population in three southern states Americans constituted a majority of Virginia to Texas. and a string of counties stretching from shank of counterarguments concerning the seriousness controversies and shank Court’s performance. and the merits of the the demise of Reconstruction, on implica- a brief summary and some speculations The Conclusion offers jurisprudence. tions for present-day willingly or not, into a struggle emerged from chattel slavery and plunged, over the practical meaning of freedom. 394cal process. terrorism of campaign a ferocious launched supremacists White prose- federal Congress, state governments, southern but this period, during Review Rights-Civil Liberties Law Civil Harvard responded effectively. southern juries cutors, and this Lower courts made [Vol. broadly. Amendments the Reconstruction by interpreting success possible 49 then the full Bradley and in Part II, first Justice as recounted Unfortunately, dynamic in Court disrupted this Supreme \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 10 29-MAY-14 11:59 when rights at a moment of civil and political on the enforcement limitations struggle hung in the balance.the political and paramilitary the from Judging of class and, in writings of Justice Bradley, considerations private and public the outcome. control were important in shaping particular, of labor 34923_hlc 49-2 Sheet No. 54 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 54 34923_hlc 34923_hlc 49-2 Sheet No. 55 Side A 06/09/2014 15:03:23 — RO- P Philip TO THE Equal 1 ., A 103 ( – , V 54 83 ]. , at reprinted in ORFOLK ], 1900 N – ONVENTIONS DDRESS C , 1865 A ITIZENS OF LACK C B ORFOLK N ONVENTIONS OLORED C C proposed a strategy for Reconstruction hereinafter TATE S Address , 1986) [ Snubbed LandmarkSnubbed 395 (1865) [hereinafter DDRESS FROM THE Where today we tend to think of civil rights conflict- Where today we tend to think of civil ATIONAL AND TATES 53 N . A . S LACK they have performed with dispatch: assisting in the preserva- assisting in performed with dispatch: they have , interpreted and applied the Reconstruction Amendments , interpreted and NITED B — UFFRAGE U S A. Military Forces We Ask for No Expensive Aid from CEEDINGS OF THE . at 85. QUAL E Id [W]e ask for no expensive aid from military forces, stationed [W]e ask for no expensive aid from action, and rendering our throughout the South, overbearing State give us the suffrage, and you government republican only in name; for ourselves, and all Union may rely upon us to secure justice the Union. . . .men, and to keep the State forever in It cannot be a prolonged military occu- that you contemplate with satisfaction without the existence of a pation of the southern States, and yet, exists in these States, a larger loyal constituency than, at present, necessary, to protect the military occupation will be absolutely as ourselves . . . . white Union men of the South, as well Instead of displacing state authority, the federal government would re- Instead of displacing state authority, In June of 1865, about two months after General Robert E. Lee surren- two months after General Robert In June of 1865, about 53 54 Cruikshank EOPLE OF THE that placed the former in service to the latter: that placed the former in service to ing with “states’ rights,” the S. Foner & George E. Walker eds. constitute state electorates so that the state governments themselves could constitute state electorates so that the South, as well as ourselves.”protect “the white Union men of the This on the relation between federal approach centered attention not primarily of state authority.and state authority, but on the nature before weeks Two President Andrew Johnson had the colored citizens of Norfolk assembled, issued a proclamation on that issue.gover- provisional a appointed Johnson nor for the formerly rebel state of North Carolina and directed that, in order P section I.B), bringing on a conflict not primarily between state and federal state and between not primarily a conflict on I.B), bringing section insur- white paramilitary between but century, the twentieth as in authority, power. backed by federal state governments Republican-controlled gents and that to serve a function asked the courts black Americans In this struggle, 2014] in other eras law and order.tion of official federal I.C, the lower As related in section courts rose to the occasion. and the full Court Justice Bradley They, unlike in broadly. a combination of black self-de- Their rulings made it possible for and limited fed- militia campaigns, federal prosecutions, fense efforts, state first campaign to terminate the white supremacists’ eral military intervention of terror. entitled field army, a pamphlet appeared dered the main Confederate Suffrage. the Colored Citizens of Norfolk, Va., to the People Address from of the United States \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 11 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 55 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 55 34923_hlc 34923_hlc 49-2 Sheet No. 55 Side B 06/09/2014 15:03:23 R R R R , See TLANTIC ATIONAL LAUSE OF A , N C ISTORY AND ONVENTIONS H C HE To the colored LACK : T 83 (Alexander Tsesis 55 one in which taxation UARANTEE B – — G HE IBERTY , T 78, 80 L ROCEEDINGS OF THE P reprinted in IECEK MENDMENT note 2, at 118 (recounting 1866 call of M. W ROMISES OF (1869), A P supra HE T , ILLIAM With slavery abolished, people of color With slavery abolished, W which set the pattern for all of the rebel the pattern for all which set MERICA in 56 , ONER A — HIRTEENTH F T note 53, at 214. EN OF see also 57 note 53, at 86.at 53, note Men” A national convention of “Colored note 53, at 87. On the roots of this view, see William M. M 29; 98 (1972). supra see also – – , supra supra , , 194 OLORED C DDRESS DDRESS ELEVANCE OF THE Our Domestic Relations: Power of Congress over the Rebel States R A A ONVENTIONS C Chairman Downing pointedly suggested that Johnson apply his Chairman Downing pointedly suggested ONSTITUTION Oct. 1863, at 507 violated the Constitution: “all the State laws imposing disabilities the State laws the Constitution: “all violated 59 THE , Emancipation and Civic Status . at 217. Johnson responded with a theoretical justification for his policy of Johnson responded with a theoretical ORFOLK ORFOLK LACK — B Id Proclamation No. 38, 13 Stat. 760 (May 29, 1865). Proclamation No. 38, 13 Stat. 760 (May 29, N N note 53, at 344, 376; 58 The clash between black constitutionalists and President Johnson deep- black constitutionalists and President The clash between 58 59 55 56 57 U.S. C ONTHLY ONVENTION OF THE ONTEMPORARY upon colored people on the ground of color, ‘being but a creation of slavery, on the ground of color, ‘being but upon colored people and parcel of the maintenance and perpetuation, are part and passed for its its fate.’”system and must follow states citizens of Norfolk, this policy Norfolk, this policy citizens of were “entitled to a full participation in all the benefits that the Constitution full participation in all the benefits were “entitled to a of ‘a republi- including “the inestimable blessings was ordained to confer” can form of government.’” supra ed., 2010). theory of consent “to South Carolina, for instance, where a majority of the theory of consent “to South Carolina, inhabitants are colored.” Johnson was unfazed: “Suppose you go to But South Carolina; suppose you go to Ohio.principle the change doesn’t That exclusion. power was “derived from the people,” he argued. Government could not be altered in composition Once constituted, a political community except by its own consent. With regard to a community that had chosen to to force upon this community, without exclude people of color, “is it proper without regard to color, making it uni- their consent, the elective franchise, versal?” ened ominously in February 1866, when Johnson received a delegation from February 1866, when Johnson received ened ominously in Convention then under way in Washington.the Colored National Delega- that the Thirteenth Downing opened by requesting tion Chair George with appropriate two months previously, be “enforced Amendment, ratified of voting rights to African Ameri- legislation,” specifically an extension cans. is the correlative of the right to be represented therein.” is the correlative of the right to be represented later elaborated: “[W]e should determine and insist upon it that a ‘republican form of govern- later elaborated: “[W]e should determine and consent of the governed ment’ is one deriving its just powers from the C of Tennessee black convention for a “republican form of government” including the rights blacks to vote, bear arms, and educate their children).concep- expansive delegates’ black The tion of the republican government clause built on the ideas of Senator Charles Sumner. M Wiecek, C Charles Sumner, 396 IV, by Article mandated as of government” form republican “a to establish con- a state constitutional organize should he Constitution, 4 of the Section Review Rights-Civil Liberties Law Civil Harvard loyal to the Union. of delegates vention composed Johnson delegates, These [Vol. qualifica- the state’s prewar by voters meeting would be selected specified, 49 franchise. of color from the excluded people tions, which \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 12 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 55 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 55 34923_hlc 34923_hlc 49-2 Sheet No. 56 Side A 06/09/2014 15:03:23 R R R R R R R R 24 86; – W. – NITED GRICUL- 121 ACE AND U A ICHAEL : R M ENTURY C OLITICS note 2, at 174 P 41. see also OLITICS AND – ORKERS IN THE : P supra 82; – , W INETEENTH OLOR OF N OUTH Initially created for elec- AHN C S H 66 HE note 3, at 38 EEP , T D In the space of a year, Congress In the space of a year, URING THE note 2, at 181 62 XPERIENCE OF supra 60 D , E 22 (1997); 63 OLDFIELD – HE supra G ARKET , 21 14 (1989) (“Within a matter of weeks, the Union They wasted no time demonstrating that, They wasted no time demonstrating : T ALELLY 88. M V whether it constituted a majority or minor- it constituted a majority whether 64 – AHN ICHAEL H OVEMENT IN THE REE — 84; OLITICS ORKER M – F Snubbed LandmarkSnubbed 397 note 1. M P W might defend its privileges. might defend to purporting While supra — EAGUE , ECONSTRUCTION note 66; The resulting conventions decreed manhood suffrage The resulting conventions ITIZEN L MERICAN R 61 note 41, at 179 note 48, at 73. note 3, at 73. , C A A-18 note 2, at 283; note 2, at 281 NION supra , URING supra U supra supra ABLE , , , D EMOCRACY AND THE HE supra supra T , , D , T Within a matter of months, the freed people developed a full- Within a matter of months, the freed TURAL The response was so enthusiastic that, by the end of 1867, it The response was so enthusiastic ONTGOMERY AVILLE HANGE 67 EYSSAR ENSUS ALELLY S ITZGERALD ONER ONER 65 AINSPRINGS OF K V C F F F Id. Act of Mar. 2, 1867, ch. 153, § 5, 14 Stat. 428, 429. M C The fate of this noble experiment would hinge, first and foremost, on experiment would hinge, first and The fate of this noble Thirteen months later, Congress enacted the Military Reconstruction Congress enacted the Military Thirteen months later, 62 63 64 65 66 67 60 61 M AVID TATES WITH ITZGERALD toral purposes, these organizations quickly adapted to the reality of a day-to- toral purposes, these organizations quickly in all spheres of life.day struggle against planter domination mobil- They self-defense, conducted rituals to ized for political action, drilled for laborers in contract bargaining and strengthen solidarity, and led or assisted strikes. and the state constitutional conventions had created “the first biracial demo- conventions had created “the and the state constitutional in world history.” cratic public sphere under peaceful conditions, they could protect their interests through the po- under peaceful conditions, they could litical process. had black suffrage arrived than the Union League, No sooner organizing center, launched a a wartime loyalist association and Republican and form League branches across the vigorous campaign to register voters South. (1993); without regard to race or economic status. without regard to race League had become the organizational nucleus of a massive movement.”). seemed that most black men had not only registered to vote, but also en- seemed that most black men had not association. rolled in a League branch or similar ity of the inhabitants ity of the whites would provoke that black suffrage prospect, he predicted regret the you force this the case when that “especially is war and observed into a race their consent.” it upon a people without the preservation of law and order.the preservation of North the in weak numerically Though an enormous voting 2%), black Americans constituted and West (less than outright majorities in Louisiana, bloc in the South (about 36%), including Mississippi, and South Carolina. Act over Johnson’s veto, repudiating his state governments and calling upon veto, repudiating his state governments Act over Johnson’s to state constitu- electorate of all races to elect delegates the southern male tional conventions. F THE D S at all.” of a definition the initial that either believed Johnson Evidently, of color people excluding or that question beyond was community political legitimacy.of criterion some met clear the ultimate case, he made In either which a “people” method by 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 13 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 56 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 56 34923_hlc 34923_hlc 49-2 Sheet No. 56 Side B 06/09/2014 15:03:23 R R R R 52 HE See . : T note 3, ONG AROLINAS 06 (1980); – L REEDOM C , while high- supra O 11 (2006). , F S like those of AR 104 — AR W TORM ALELLY Of the five hun- W IVIL V S MERICAN Cruikshank 70 C IVIL A C The Civil Rights Cases IRGINIA AND THE V and Consistent with President with Consistent EEN IN THE 73 68 , B Louisiana and Texas were the GE OF THE note 41, at 169; ATTLE OF THE 72 A B IOLENCE IN and its progeny “cast a long shadow” over MENDMENT AND ITWACK supra AST V , A L L HE EON L : T AVILLE AW AND 39. This undoubtedly reflects the fact that, as Kenneth S – : L 23; HIRTEENTH DEOLOGY IN THE – After an extensive investigation, General Philip After an extensive investigation, General 34; Strauder v. West Virginia I – T 71 In the rural counties that were home to most Afri- In the rural counties 80 (1979). HE – 69 on race discrimination in access to government and on race discrimination EDEMPTION ATROLS Rethinking Civil Rights Lawyering and Politics in the Era Before Rethinking Civil Rights Lawyering and Politics B. of Terror A Fearful Reign P , T –– , R 274 The freed slaves’ “feeling of security and independence,” The freed slaves’ “feeling of security SESIS LAVE OLITICS AND Brown v. Board of Education note 2, at 119 note 2, at 120 (quoting Freedmen’s Bureau records). note 2, at 230 74 EMANN , S T , P L.J. 256, 258 (2005). LAVERY L S supra supra ALE supra ONER , , , Y ADDEN F LEXANDER ICHOLAS AHN RIC ONER ONER F A N F E H treatment to As noted above, casebooks ignore or give cursory , 115 . Kenneth W. Mack, E. H 41. Judging from present-day constitutional law casebooks, the main civil constitutional law casebooks, Judging from present-day Former slave owners channeled racial violence to serve class interests. Former slave owners channeled racial text accompanying notes 26, 38 – 70 71 72 73 74 68 69 FTERMATH OF ALLY dred whites charged with murdering blacks in that state between 1865 and dred whites charged with murdering 1866, none was convicted. Johnson’s thinly veiled threat of race war, however, white supremacists were white supremacists of race war, however, thinly veiled threat Johnson’s intimida- and white allies for their families, black leaders, already targeting and death. tion, torture, the 1950s and 1960s the 1950s and 1960s rights issues of the decades following the Civil War centered decades following the Civil War centered rights issues of the worst states, but reports of routine, unprovoked white-on-black violence worst states, but reports of routine, poured in from across the former Confederacy. public accommodations. (2004). S Sheridan concluded that between the end of the war and 1875, some 2141 Sheridan concluded that between the whites in Louisiana, with the perpe- African Americans had been killed by case. trators escaping punishment in every can Americans, however, the very existence of official law and order was at the very existence of official can Americans, however, were matters of life and death.stake, and civil rights Black men and women proper respect, defy- and death for failing to show risked beatings, flogging, who felt an urge to or simply being near a white man ing white commands, demonstrate dominance. listed as “reasons” The Texas Freedmen’s Bureau insolent language,” by whites such offenses as “using for murders of blacks to call the perpetrator “master,” and failing “to remove his hat,” refusing his mother. “crying” after the perpetrator had whipped Brown They accepted the abolition of chattel slavery, narrowly defined as a formal They accepted the abolition of chattel to regain mastery over their newly as- legal relation, but moved decisively sertive laborers. the legal history of civil rights, distorting earlier developments to fit the liberal legal model of the legal history of civil rights, distorting earlier Brown lighting discrimination cases like supra Mack has observed, A at 36 398 of networks reinforcing mutually on grounded politics” “parallel fledged organizations. and religious labor, political, Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 14 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 56 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 56 34923_hlc 34923_hlc 49-2 Sheet No. 57 Side A 06/09/2014 15:03:23 R R R R R R R R , , ] IS- 87 L. 36 – REE- OCU- ORK- H LAN ECON- OUTH- 84 F D OLE OF AMELIA K W AMES S R note 77, ONOVAN J Slaves note 6, at R note 3, at C IRST ITIZENSHIP 81 LUX HE OUTH 99; LACK O’D , F : C K – HITE S supra B U supra supra : T , note 77, at 35, AR AND 80; , , W – reprinted in ECONSTRUCTION W , OLCHIN EACE ANE REEDOM R L supra K , P IVIL F at 34, 393 ONSPIRACY AND Although yeoman Although RELEASE ALELLY O * * * [K , T V C 69; 349, 349, 352 (Walter L. EAGUE C 77 – N ETER Like the old slave pa- Like the old slave L P Thousands of veterans Thousands ENESIS OF THE AS LAN 80 RELEASE 76 EART OF note 2, at 275 T : G HITE K W NIGHTS OF THE OSTEMANCIPATION note 73 ONSTITUTIONALISM AND THE H The planters’ effort to reest- effort to planters’ The P W K : C LUX 75 RDER OF THE OOTS supra HERE ITY supra , K O R , T note 6, at 14; MANCIPATION AND U C note 2, at 303; note 2, at 268 ECONSTRUCTION LANTERS IN THE UT E K AHN R P 97 (2007); H at 358. HE , RADITION supra , B supra ITHOUT supra ACE IN THE , ERROR IN THE ITWACK , T , : T 29; L RESCENT 78 1882, at 314 (1986); R ITUAL OF THE W – , T – ABLE supra C AHN AHN OGUE R LACKS TO , OUTHERN H H H White supremacists condemned civil rights White supremacists ISTORY OF ERROR OSEN B RESCRIPT OF THE S A Spirit of Lawlessness: White Violence; Texas Blacks, : S ’ T 79 , 1862 C. R H R NCERTAIN 33; 34; P 69; Snubbed LandmarkSnubbed 399 RANCHES – – – U EANING OF ECONSTRUCTION HITE N , B 35, 237 (Kermit L. Hall & James W. Ely, Jr. eds., 1989). OUTH LAVES – R The Problem of Constitutionalism and Constitutional Liberty in The Problem of Constitutionalism and Constitutional EORGE A M ANNAH S , W LABAMA S . 217, 222 (1984). For a review of documentary evidence on the MENDED G in H A , IST AYNES ECONSTRUCTION A note 2, at 121, 428 18; note 73, at 434. ONSTITUTION AND note 49, at 160, 162; OCUMENTARY – R , at xlv, xlvii (1971). . H ONSTITUTION OF THE C ITHOUT D 225, 234 D. J AND THE note 2, at 432 MERICAN RELEASE note 2, at 431 C note 2, at 268 OLITICS OF OC , supra W A P supra , supra 42 (1977); , J. S OUTH , – supra supra W. T ERALD supra , , S EVISED AND ESPONSES OF , G ONER ISTORY OF see also TORY OF THE , 18 F ASTERS DOM MENTARY ING 141 R STRUCTION ERN IOLENCE R EVINE H LLEN AHN ITWACK HE reprinted in ONER ONER L V A HE , M Michael Les Benedict, See L H F F T ECONSTRUCTION 1868 Beginning in 1867, these societies conducted a campaign of terror these societies conducted a campaign Beginning in 1867, LASS IN THE note 48, at 217 – 80 81 75 76 77 78 79 : T R 92. 40; C – – IOLENCE IN THE OARK EXUAL farmers and laborers filled the ranks, the “very best citizens” selected the best citizens” the ranks, the “very laborers filled farmers and on the raids. targets and often rode trols, the societies enforced norms of black subordination that traced back to enforced norms of black subordination trols, the societies colonial statutes. Slaves had been required to provide labor on the master’s blacks who dared to resist planter terms; the societies whipped or murdered with whites in the economy. authority or to compete successfully joined the Ku Klux Klan and other secret societies, which modeled their which modeled other secret societies, Ku Klux Klan and joined the patrols. the prewar slave and activities on structure ablish labor control intersected with a cross-class movement of whites, of movement cross-class with a intersected labor control ablish was deter- veterans, that of Confederate on a core constituency grounded of white supremacy. preserve the order mined to laws, public education, and other measures intended to benefit blacks and and other measures intended laws, public education, “class legislation.” poor whites as unconstitutional (2009). (2008); S Fleming ed., 1906); 19 (1868); use of violence and threats of violence in the labor contracting process, see Motion for Leave against all sources of black power.against all sources critics tarred this campaign as Although fact inspired and shaped by law.“lawless,” it was in people, freed the Like for them- masters read and interpreted the Constitution the former slave selves. the White Camelia, and the White The Ku Klux Klan, the Knights of and the “consti- their stand for “constitutional liberty” Leagues proclaimed South.” tutional rights of the the Reconstruction South 1865 (1869), supra V 101, 275, 288, 360; Barry Crouch, 205 (2003); R 91 39 243, 266, 296, 332. at 77, 83, 96, 98, 108, 130, 140, 189, 201, 234, explained one planter, “has to be eradicated.” “has to be planter, one explained 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 15 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 57 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 57 34923_hlc 34923_hlc 49-2 Sheet No. 57 Side B 06/09/2014 15:03:23 R R R R R R R R R R R R R R R R 04, – note REAT note supra supra 9; and , , – G 50, 154, – HE supra AHN supra , , ONER following NFORCEMENT H , T F 95, 316, 319, Unlike the – E note 81, at 88, — 87 note 2, at 175; HE note 77, at 29, 35, RELEASE : T Slaves and free Slaves RELEASE ILLIAMS supra T T note 74, at 8 , 82 supra W LAN , supra , K ABLE supra note 41, at 172. , AHN R LUX note 74, at 106; H ALKNER 53 (1987); 28; K . F – OSEN – supra U RELEASE 54; , R T supra OU – K 14, CBOCS West, Inc. v. Humphries, , L note 81, at 119; – 16; 12; – – AVILLE They confiscated African Ameri- They confiscated Through this “quasi-militarization supra S 1872, at 29 (1996). ADDEN 68, 153 , 86 – 90 – H 1877, at 252 – Slaves had been prohibited from gath- been prohibited Slaves had 59; 07, 211 note 2, at 426 – ABLE 29, 239, 241, 302, 321. On terrorism directed at – 07; 83 – 1871 – attacked and assassinated Republican of- and assassinated Republican attacked R UPPRESSING THE 1870 32, 235, 239, 243, 245, 252, 262, 271, 277, 303 32, 235, 239, 243, 245, 252, 262, 271, 277, 09, 211. supra — 73 and accompanying text. On rape, see – – , S , – 29, 178, 289, 292, 302 RIALS 29, 258 – note 74, at 215 – 124, 131, 261, 265, 293, 307, 313, 329, 341, 365. 124, 131, 261, 265, 293, 307, 313, 329, 341, T 76, 228 – 36. ONER – F LAN 51, 251, 263, 282, 337; 23. WINNEY supra It had been a crime for slaves to lift a hand in self- It had been a crime – – S notes 70 , K MENDMENTS note 66, at 38, 66 85 Slaves had been permitted to conduct religious ser- Slaves had been note 66, at 106 A note 77, at 35, 55, 76, 83, 95, 102, 116, 122, 128, 141, 149 note 77, at 35, 55, 76, 83, 95, 102, 116, 122, 34, 38, 128 LUX 84 note 77, at – note 82, at 39. note 74, at 108 note 74, at 106, 206 supra ADDEN K supra 04, 205, 213, 231 38, 150, 175 U supra VERETTE H 29, 138, 177, 185, 202, 206, 228, 238, 252, 261, 276, 293 29, 138, 177, 185, 202, 206, 228, 238, 252, – note 48, at 228 – , , E supra – supra K , supra note 87, at 35 supra supra , , 31; , , 83; – 89 supra – , Such actions would have violated the property rights of white have violated the property rights Such actions would 31, 137 supra – , 88 at 25, 31, 32 ECONSTRUCTION RELEASE AROLINA ADDEN ADDEN WINNEY T ITZGERALD ITZGERALD RELEASE R H T Id. H On murder, see S F F permeate the sources.Reports of voter intimidation and punishment White C To counter this pervasive violence, black southerners organized for self- To counter this pervasive violence, black 84 85 86 87 88 89 90 82 83 ONOVAN ILLIAMS OUTH patrols, however, the societies did not refrain from exercising the de facto the societies did not refrain from exercising patrols, however, and killing their enjoyed only by slave owners, of raping privileges, formerly victims. fice holders and grassroots leaders. and grassroots fice holders the lead of John Wilkes Booth John Wilkes Booth the lead of blacks had been excluded from the franchise; the societies blocked blacks the societies blocked the franchise; been excluded from blacks had succeeded, and who nevertheless punished those from voting, cans’ guns and ransacked their homes for weapons and booty. their homes for weapons and cans’ guns and ransacked ering without permission; the societies broke up unauthorized assemblies up unauthorized the societies broke permission; ering without whenever possible. defense; the societies were particularly outraged when blacks dared to de- were particularly outraged when defense; the societies white abuses. fend themselves against vices only under white pastors; the societies burned black churches and at- pastors; the societies burned black vices only under white tacked their ministers. 77, at 84, 86, 128 slave owners under slavery, but not white employers under the system of slavery, but not white employers slave owners under wage labor. defense. branches, labor associations, political clubs, and Union League and posted sentinels.other organizations drilled, marched, people Freed and “lieutenants,” a number of formed unofficial militias led by “captains” whom had served in the Union Army. supremacists often attempted to force blacks to vote Democratic, sometimes issuing formal supremacists often attempted to force blacks protection papers to those who complied. 306, 310, 311, 312, 319, 321 118, 122, 129, 139, 149, 150 S note 2, at 430 W O’D to File Amicus Curiae Brief & Brief of Historians at 7 to File Amicus Curiae Brief & Brief of Historians 128 S. Ct. 1951 (2008) (No. 06-1431). note 2, at 282 OF THE 321, 329, 337. 77, at 130 Republican office holders, see 96; and 177, 190, 194, 203 400 the burned the societies and write; to read learning from prohibited had been their teachers. terrorized and new schools people’s freed Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 16 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 57 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 57 34923_hlc 34923_hlc 49-2 Sheet No. 58 Side A 06/09/2014 15:03:23 R R R R R R R 96 , at 39 97 1973 – Consistent 94 98 , 1619 83. – 41. – numerical weakness ORKER — , southern state govern- W LACK U.S. attorneys aggressively note 2, at 282 99 B supra 74. – elsewhere , 6, 16 Stat. 140, 140 They proceeded on the assumption They proceeded – — 91 AHN H Norfolk Address ABOR AND THE 39. – Outside the cities, according to historian Outside the cities, L note 6, at 68. 75. 93 Snubbed LandmarkSnubbed 401 – note 41, at 173 supra , supra In most cities, Union League branches and other Re- In most cities, Union RGANIZED , note 66, at 194; O 92 , OGUE note 77, at 38 H note 6, at 89. supra note 2, at 174 note 2, at 282. AVILLE , ONER S 85; supra – C. in the Lower Courts Anti-Klan Enforcement , supra supra supra , S. F , , In Louisiana, hundreds of Confederate veterans swore an oath to In Louisiana, hundreds of Confederate at 205; at 283 AHN AHN OGUE HILIP ITZGERALD RELEASE 95 H Id. F H Id. H T P Enforcement Act of 1870, ch. 114, §§ 2 Congress responded with the Enforcement Act of 1870, which made it Congress responded with the Enforcement In much of the rural South, however, violence went unchecked.In much of the rural South, however, By 91 92 93 94 95 96 97 98 99 ments intervened to defend blacks and their white allies.ments intervened to Republican gover- with militias Arkansas, and Texas responded effectively nors in Tennessee, from mountain of African Americans and white loyalists composed mostly areas. with the strategy advanced in the with the strategy advanced prosecuted violators in a number of states and, despite widespread intimida- prosecuted violators in a number of states that any exercise of black rights might be construed by whites as a provoca- by whites as might be construed of black rights that any exercise violence. warranting tion “black voters for example, On Election Day 1867, in groups, at at the polls in advance and arrived preparations well made their fashion, marching in military armed or hour, sometimes a predetermined their numbers, soli- white and black onlookers with always ready to impress darity, and resolve.” could be offset by “political experience and armed strength.” could be offset by Steven Hahn, white violence was rare in areas where blacks outnumbered violence was rare in areas where Steven Hahn, white one or more, and whites by two to publican organizations, sometimes backed by federal troops, neutralized the sometimes backed by federal troops, publican organizations, societies. white supremacist (1974). a crime for any person to join in a conspiracy to deprive any person of rights a crime for any person to join in a conspiracy or laws. “secured” by the U.S. Constitution respect the civil rights of all men regardless of color and joined the biracial respect the civil rights of all men regardless General James Longstreet. state militia commanded by former Confederate 1871, outgoing President Isaac Myers of the Colored National Labor Union 1871, outgoing President Isaac Myers impossible to reach the colored labor- reported that “in some localities, it is the Ku-Klux bullets” and despaired of ers except you are steel-plated against “fearful reign of terror.” organizing black workers under this of organizational and work life,” black southerners “reminded each other of each “reminded black southerners life,” and work of organizational sys- warning numbers, in their protection offering faced while they the risks weapons of self-defense.” tems, and where large plantations were few In some of the hardscrabble rural counties, habit of deferring to planters, a criti- and poor white farmers were not in the to maintain law and order. cal mass of whites joined with blacks 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 17 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 58 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 58 34923_hlc 34923_hlc 49-2 Sheet No. 58 Side B 06/09/2014 15:03:23 R R R ED- The WIN- note F MERI- S A HE Presi- supra : T 102 amend. XV, , . EACHING T ONST , ILLIAMS , 106 U.S. 629, 640 , at 99 (1985); W U.S. C McCulloch v. Mary- 1876 NTERPRETATION 413; – I – The term “appropriate,” , 1866 UDICIAL 104 100 11 n.34 (2010). note 35, at 54; Jack M. Balkin, . J – IGHTS http://perma.cc/9RMX-UPQQ.Johnson R supra amend. XIV, § 5; . United States v. Harris note 77, at 399 , IVIL C OLITICS OF ONST supra Id. P . 1801, 1810 , IETLOW archived at Z HE EV Congress promptly overturned Johnson’s U.S. C By the time of the Klan cases, this question By the time of the , T 103 101 RELEASE USTICE AND , Chief Justice Marshall had written that it would , Chief Justice Marshall had written T unlike those of Bradley and the full Court in the full Court of Bradley and unlike those J — 94 (Swayne, Circuit Justice, C.C.D. Ky. 1866) (No. 16,151).This N.Y.U. L. R – United States v. Rhodes ACZOROWSKI , 85 amend. XIII, § 2; McCulloch J. K . permitted effective enforcement to go forward. effective enforcement permitted key The , http://teachingamericanhistory.org/library/document/veto-of-the-civil- EPARTMENT OF — 23. Furthermore, continued Swayne, now quoting Justice Joseph Furthermore, continued Swayne, now , 27 F. Cas. at 791, 793; , 27 F. Cas. at 791 (quoting McCulloch v. Maryland, 17 U.S. 316 (1819)). – ONST , D OBERT ORG . R 106 ERAL note 82, at 235, 263; NEY CAN And in Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27. March 27, 1866 Veto of the Civil Rights Bill, Andrew Johnson, 27 F. Cas. 785, 791 Rhodes Rhodes See U.S. C OURTS 105 Lower federal courts upheld most of these prosecutions. courts upheld Lower federal In the process, ISTORY . supra C 102 103 104 105 106 100 101 H , dent Andrew Johnson had vetoed the Act, reasoning that it was not “appro- had vetoed the Act, reasoning that dent Andrew Johnson to enforce the Thirteenth Amendment.priate” legislation view, Johnson’s In imminent violation only in response to an actual or Congress could legislate clause.prohibitory Amendment’s the of “been abol- Because slavery had be any attempts to revive it,” Con- ished” and it was not “likely there will gress had acted prematurely. Swayne accurately recounted, had been drawn from Swayne accurately recounted, had been land had been addressed extensively in disputes over the Civil Rights Act of extensively in disputes over the had been addressed were to enjoy a that citizens “of every race and color” 1866, which provided citizens.” rights on the same basis as “white broad range of civil veto by an overwhelming margin, and Justice Noah Swayne, riding circuit, veto by an overwhelming margin, and upheld the Act in §2. Story’s influential treatise, Congress continued: “If, however, any such attempt shall be made, it will then become the duty of the continued: “If, however, any such attempt shall General Government to exercise any and all incidental powers necessary and proper to main- tain inviolate this great law of freedom.” (1882) (dictum). holdings centered less on the merits of the state action issue (on which most action issue (on merits of the state centered less on the holdings relevance to present- perhaps because of the issue’s scholarship has focused, Congress concerning than on the question of deference to day controversies) Amend- legislation under the Reconstruction what constituted “appropriate” clauses. ments’ enforcement rights-bill/ (last visited Mar. 8, 2014), “tread upon legislative ground” for the judiciary to inquire into the “degree “tread upon legislative ground” for the by Congress to carry out constitutional of necessity” of legislation enacted purposes. holding was later approved by the full Court in they developed solutions to the doctrinal problems posed by the Reconstruc- posed by the the doctrinal problems solutions to they developed that tion Amendments Cruikshank Reconstruction Powers 87, at 38, 122 402 compositions racial of varying juries southern and jurors, of witnesses tion of defendants. number a substantial convicted Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 18 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 58 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 58 34923_hlc 34923_hlc 49-2 Sheet No. 59 Side A 06/09/2014 15:03:23 R R In 113 Crosby 108 ECONSTRUC- R Like Woods fell within the 115 ONSTITUTION OF THE — C ETTLEMENT OF Political Terrorism in the Black S 99. It is sometimes said that – UDICIAL J the first reported decision to apply the first reported decision 109 OMMENTARIES ON THE , 107 48 (1980). , C the denial of specified civil rights en- the denial of specified – — note 100, at 98 TORY S ETHINKING THE . 35, 44 supra Snubbed LandmarkSnubbed 403 , EV another circuit court upheld the indictments of another circuit court upheld the indictments , R OSEPH Circuit Judge and future Supreme Court Justice Circuit Judge and 114 . R J , 05 (C.C.S.C. 1871) (No. 14,893). LA – 110 Woods did not require any allegations of state inac- Woods did not require any allegations A 112 RANDWEIN United States v. Hall ACZOROWSKI , 33 B K § 432 (1833)). Furthermore, the Amendment prohibited states from denying to Furthermore, the Amendment prohibited at 82. The opinion did not mention the Klan or the race of the victims; for the note 2, at 427; and Melinda Meek Hennessey, note 2, at 427; and Melinda Meek Hennessey, AMELA 111 P , 26 F. Cas. at 81. , 26 F. Cas. at 81. Here again, the opinion did not mention the Klan or the race of the victim; for the ; TION TATES . at 792 (quoting 1 . at 794. supra See id. Hall Id. Hall 25 F. Cas. 701, 704 Id. Id Id 26 F. Cas. 79 (C.C.S.D. Ala. 1871) (No. 15,282). S , Applying this approach, federal circuit and district courts gave Con- federal circuit and district courts Applying this approach, must have a wide discretion as to the choice of means; and the means; and of to the choice as discretion have a wide must the to be that seem would discretion upon the limitation only admit of consider- end; and this must appropriate to the means are as and the end, between the action for the relation able latitude, to and palpable as not always so direct justly remarked, is has been eye of every observer. strike the 48 (2011). 110 111 112 113 114 115 107 108 109 NITED ONER United States v. Crosby the Enforcement Act of 1870, the circuit court upheld the indictments of of 1870, the circuit court upheld the Enforcement Act men to freedom of violating the rights of four black Klan members for speech and assembly. Klan members for violating the right of a black man to vote. Klan members for violating the right William B. Woods felt “safe” in including the freedoms of speech and as- William B. Woods felt “safe” in including protected by the Fourteenth sembly among the “privileges or immunities” secured to the people” in the Bill Amendment because they were “expressly of Rights. tion in the particular case. Instead, he announced a broad rule of deference shall exercise this power must to Congress: “The extent to which congress the circumstances of each case.” depend on its discretion in view of any person equal protection of the laws, and “[d]enying includes inaction as any person equal protection of the laws, well as action.” In the event of “state inaction” in protecting fundamental laws that would “operate directly” on rights, Congress had the power to pass private individuals. F factual context, an armed attack on a Republican campaign rally in Eutaw, Alabama, see factual context, an armed attack on a Republican definition of slavery or involuntary servitude, but because, without the Act’s or involuntary servitude, but because, definition of slavery follow.” effects of slavery might speedily protections, “the worst gress wide latitude to reach private action under the Fourteenth and Fifteenth to reach private action under the Fourteenth gress wide latitude Amendments. In factual context, see Belt: The Eutaw Riot rejected the claim that the Privileges or Immunities Clause incorporated the Bill of Rights. free However, the indictment charged only one violation of an enumerated right, the right to be U 2014] power not the Civil Rights Act fell within Congress’s Under this principle, practices because the prohibited such as the right to testify in court joyed by white people \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 19 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 59 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 59 34923_hlc 34923_hlc 49-2 Sheet No. 59 Side B 06/09/2014 15:03:23 R , RIAL TATES 117 T S LAN K NITED 68. U note 82, at 235, – Although the dis- supra IN THE , 120 , for example, the first , for example, the . at 263, 267 , S.C., McCulloch v. Maryland McCulloch WINNEY Id S 07; Crosby – OLUMBIA C , 25 F. Cas at 704. Given that there was no Echoing Echoing 116 Circuit Judge Bond explained in a later Circuit Judge Bond , at 826, 833 (1872) [hereinafter Crosby RIALS AT 119 T , 1871 LUX 04. – K ERM U T note 100, at 56, 99, 106 K supra , . at 507. OVEMBER Id , N , 25 F. Cas. at 704. , 25 F. Cas. at 703 McCulloch v. Maryland, 17 U.S. 316, 421 (1819). McCulloch v. Maryland, 17 U.S. 316, 421 ]. 121 cf. OURT ; Klan attorneys Senator Reverdy Johnson and former U.S. Attorney Reverdy Johnson and former U.S. Klan attorneys Senator ACZOROWSKI , Circuit Judge Hugh L. Bond did not require allegations of state require allegations did not L. Bond Hugh Judge , Circuit ROCEEDINGS IN THE C P Crosby 27 F. Cas. 506, 509 (C.C.E.D. Va. United States v. Petersburg Judges of Election, K Crosby Id. 118 Lower courts also refrained from requiring proof of racial motivation in refrained from requiring proof of racial Lower courts also 118 119 120 121 116 117 Hall IRCUIT ROCEEDINGS trict court judges were more closely integrated with local elites, all but two trict court judges were more closely cases upheld the constitutionality of of the eleven involved in enforcement circuit judges in presiding over numer- the Enforcement Acts and joined the Carolina, 154 in South Carolina, and ous convictions including 49 in North centers of Klan activity between 1868 597 in northern Mississippi, the main and 1871. case that the prosecution need not charge racial motivation under the Four- need not charge racial motivation case that the prosecution has shown the Amendments because “where experience teenth or Fifteenth and color cannot be, in the judgment obstruction of voters on account of race is appropriate legislation to provide by of congress, otherwise prevented, it take place at all.” statute that no such obstruction shall Bond explained: “If the act be within the scope of the amendment, and in the of the amendment, be within the scope “If the act Bond explained: of its appropriateness.” is the sole judge purpose, congress line of its General Henry Stanbery, among the most eminent lawyers of their time, among the most eminent lawyers General Henry Stanbery, challenge the fail- on six separate grounds but did not objected to this count motivation. ure to allege a racial count alleged simply that the defendants had conspired to violate the En- that the defendants had conspired count alleged simply descent” who by hindering male citizens “of African forcement Act of 1870 and privilege of vot- vote . . . , from exercising the right were “qualified to ing.” cases involving civil rights violations.cases involving civil In 1874) (No. 16,036).voters might seem to limit the statement to the Fifteenth The reference to Amendment, but Bonds stated the issue as follows: “The question then is whether or not there the is constitutional power in congress to protect a citizen of the United States, qua citizen, in of exercise of the elective franchise, either by force of the fourteenth or fifteenth amendment the constitution.” allegation of state action, this conclusion could have reflected either an understanding that the allegation of state action, this conclusion could and seizures” conducted by government and not Fourth Amendment covered only “searches was not rejecting incorporation), or that the by private individuals (in which case the court the Bill of Rights. Privileges or Immunities Clause did not incorporate C P 263. Judge Robert A. Hill’s policy of lenient punish- The larger figure for Mississippi reflected ment, which made possible numerous in-court confessions. from unreasonable searches and seizures. 404in case at bar. in the or inaction action which to Congress, Instead, he deferred Review Rights-Civil Liberties Law Civil Harvard end in view to secure the most likely thought that legislation “may have [Vol. state law or by virtue of a citizen who acted the individual which punished 49 individual responsibility.” upon his \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 20 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 59 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 59 34923_hlc 34923_hlc 49-2 Sheet No. 60 Side A 06/09/2014 15:03:23 R R R R R UF- 19 S LAN note 82, Justice K Prigg v. LACK note 87, at 126 : B LUX supra Despite the Despite , K supra U , 122 The clause did K 127 WINNEY 128 EMOCRACY S ILLIAMS D W BROGATION OF 1877 RIAL OF ISTORY OF THE A – T H HE HE note 2, at 286; , T : T , 1874 supra ANG The election of 1872, the most peace- of 1872, the most The election , W 1910, at 100 (1997); I RDER 123 – AHN X H O OURT AND THE MERICANISM C , 1860 59; A – Snubbed LandmarkSnubbed 405 AW AND OODED L UPREME , H EPUBLICANS S note 77, at 415; R HE note 2, at 458 note 2, at 508. The Act was grounded on the so-called Fugitive Slave The Act was grounded on the so-called note 6, at 5. art. IV, §2, cl. 3. . supra , 125 HALMERS . supra supra supra ONST , C , II. T ORTHERN , 41 U.S. at 612. , N . AVID After the election, it appeared that African Americans might be able it appeared that African Americans After the election, ONER ANE RELEASE ONER F T L D F 41 U.S. 539, 626 (1842). U.S. C Prigg Id If by one mode of interpretation the right must become shadowy If by one mode of interpretation the power adequate to the and unsubstantial, and without any remedial its just end and secure its end; and by another mode it will attain principles of reasoning, ab- manifest purpose; it would seem, upon to prevail. solutely irresistible, that the latter ought Before the Civil War, the Supreme Court had embraced a broad, purpo- the Supreme Court had embraced Before the Civil War, By 1872, Frederick Douglass could observe with satisfaction that the that satisfaction with observe could Douglass Frederick By 1872, 124 122 123 124 125 126 127 128 Joseph Story, writing for the Court, determined that this clause “manifestly Joseph Story, writing for the Court, unqualified right on the part of the contemplates the existence of a positive, his human property. owner of the slave” to the return of tiny proportion of perpetrators actually imprisoned, the federal government, the federal actually imprisoned, of perpetrators tiny proportion a degree of had reestablished and juries, southern witnesses together with South. in most of the law and order not, however, mention Congress or governmental powers, and it was located not, however, mention Congress or governmental of Congress were listed.outside Article I, where the powers Nevertheless, the Court implied a power to legislate.in result this defended Story Justice purposive terms. ful of the Reconstruction era, saw Republican victories across the South, victories across saw Republican Reconstruction era, ful of the that de- the only time Alabama governorship, the recovery of the including by the Democ- in a state that had been “redeemed” mocracy was restored racy. (1987); Clause, which provided that fugitives from labor “shall be delivered up on Clause, which provided that fugitives or Labour may be due.” Claim of the Party to whom such Service to exercise their constitutional rights without risking torture and death. rights without risking torture to exercise their constitutional At Supreme Court the Justices of the United States this juncture, however, intervened. sive approach toward Congress’s power to enforce individual rights.sive approach toward Congress’s power The of 1793 in the leading case of Court upheld the Fugitive Slave Act Pennsylvania at 235; FRAGE AND 112. 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 21 29-MAY-14 11:59 “scourging and slaughter of our people have so far ceased.” so far people have of our slaughter and “scourging 34923_hlc 49-2 Sheet No. 60 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 60 34923_hlc 34923_hlc 49-2 Sheet No. 60 Side B 06/09/2014 15:03:23 R who Prigg — , had rested for the pro- had implied Prigg Prigg Prigg 132 58 (1964) (suggesting that, – 09. For other quotations, see “We will turn the artil- “We will turn the – 130 09 (2004). Justice Clifford cited – 133 , 1353, 1357 Congressional Power to Enforce the Four- to state action” (internal quotation marks L.J. . 153, 206 EV ALE The Enduring Legacy of the Thirteenth Amend- even Y note 56, at 300, 308 L. R , 73 Indeed, it appeared that Congress had not Indeed, it appeared supra Hall v. De Cuir 131 , . ORDHAM F would believe that the Amendments granted powers “which 129 IBERTY — L , 73 The Supreme Court and Congress’s Power to Enforce Constitutional The Supreme Court and Congress’s Power , 39th Cong., 1st Sess. 1118 (1866). Robert J. Kaczorowski, 12, 616. – ’s holding that “the mere recognition of a right in the federal Constitution ’s holding that “the mere recognition of a right LOBE ROMISES OF . G , 41 U.S. at 622; Laurent B. Frantz, ’s broad concept of Congress’s power to enforce rights was not ’s broad concept of Congress’s power P The Justices, not Congress, aimed the artillery of slavery. The Justices, not Congress, aimed First see also Prigg HE at 499 (Clifford, J., concurring). ; . at 610 ONG T 134 Prigg 95 U.S. 485 (1878). Id. Id C Id. in Prigg After the war, Republican leaders in Congress cited in Congress war, Republican leaders After the , 132 133 134 129 130 131 lery of slavery upon itself.” lery of slavery upon to justify striking down, on federal preemption grounds, a Louisiana state to justify striking down, on federal to ride in the same steamboat cabin as law that gave people of color the right whites. only a power to address private violations of the slaveholders’ rights, Con- private violations of the slaveholders’ only a power to address by mentioning states have dispensed with that limitation gress appeared to Amendments. explicitly in the Fourteenth and Fifteenth only re-aimed the artillery of slavery, but also upgraded it.artillery of slavery, but also upgraded only re-aimed the power the While in slaveholders’ rights, recognized of Congress to protect on mere implication, Congress had included express grants of power in each Congress had included express grants on mere implication, Amendments.of the Reconstruction while Moreover, Justice Bradley and then the full Court fired their most devastating salvos in Justice Bradley and then the full Court United States v. Cruikshank enacted no fewer than three statutes enforcing the Fourteenth and Fifteenth amendments against private individuals would extend not only to private acts, but in view of any gives Congress power to protect it from interference by private acts” but not “to exercise control over a state’s officers and agencies,” it is easier to understand how the Framers omitted)). position that Congress enjoyed sweeping authority to enforce the rights of to enforce the sweeping authority Congress enjoyed position that allies.their and people freed slavery cannot yield up the weapons which “I in the holy cause of now that they may be wielded has placed in our hands James Wilson of declared Representative liberty and just government,” of the 1866 Civil Rights bill. Iowa, floor manager Supreme Court opinion involv- applied, however, in any Reconstruction-era ing black rights save one. In ment Robert Kaczorowski, Rights: A Moral Anomaly 406 in entailed difficulties practical the he catalogued approach, that Applying that the and concluded legislation, the aid of without fugitives down hunting Review Rights-Civil Liberties Law Civil Harvard recover his with the right to the slave master having endowed Constitution, [Vol. right effec- to make that authorized Congress must also have escaped slave, 49 legislation. tive through \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 22 29-MAY-14 11:59 teenth Amendment Against Private Acts 34923_hlc 49-2 Sheet No. 60 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 60 34923_hlc 34923_hlc 49-2 Sheet No. 61 Side A 06/09/2014 15:03:23 R R R R R R , R. OHN J IGHTS R See Town Talk ORRISON for Justice Even after — Its impact, , M 139 note 6, at 194. 138 NDIVIDUAL I AGRATH supra Cruikshank , M ANE note 100, at 151; Justice Joseph P. Brad- L OURT AND ETER 140 137 C supra C. P LD , O HE : T 7.full Chief Justice Waite, who wrote the – 11 . This was a period of relative calm in a period of relative This was – ACZOROWSKI K 135 arose out of majority-black Grant Parish, of majority-black arose out EVOLUTION 299 (1963). R 66, 70. Snubbed LandmarkSnubbed 407 – , June 28, 1874, at 1 (commenting that “this ruling of Justice , June 28, 1874, at 1 (commenting that “this IGHTS note 112, at 6 , commented two years later in connection with another case: “I R A mostly white jury convicted three defendants of A mostly white jury Cruikshank HARACTER note 112, at 16, 25, 93. note 112, at 93; 136 supra IVIL C , ICAYUNE C P supra supra note 6, at 65 , , Cruikshank text accompanying notes 6 AILY D supra RIUMPH OF RANDWEIN , EFORE THE T B A. in Opinion Court Circuit Bradley’s Justice , B . at 93. Bradley was widely recognized as the Court’s intellectual leader. HE RANDWEIN RANDWEIN ANE United States v. Cruikshank, 92 U.S. 542, 548 (1876); United States v. Cruikshank, 92 U.S. 542, 548 B B Id L See supra RLEANS : T Considered in context, Bradley’s ruling arguably surpasses that of the Considered in context, Bradley’s ruling As related above, As related O 137 138 139 140 135 136 AITE EW RAEMAN both in the law books and on the ground, bears out Pamela Brandwein’s both in the law books and on the ground, in American constitutional de- claim that it “is an unrecognized milestone “cannot be overstated.” velopment” the significance of which the Court announced its own opinion in 1876, Bradley’s would sometimes be the Court announced its own opinion Court itself. cited in preference, including by the ley, riding circuit in New Orleans, joined Circuit Judge William B. Woods in New Orleans, joined Circuit Judge ley, riding circuit on the bench during trial. On June 27, 1874, Bradley announced his opinion overturning the convictions. Judge Woods disagreed, splitting the court and ensuring Supreme Court review. full Court in historical importance. It came at a time when the forces favor- closely balanced.ing and opposing Reconstruction were Because Bradley Justices in Washington, his opinion had recently conferred with his fellow the full Court’s ruling. was widely viewed as a harbinger of most of the South, brought on by the initial success of Enforcement Act brought on by the initial success most of the South, prosecutions. of Grant Parish, the Republi- But to the white supremacists provocation. action constituted an intolerable cans’ assertive, mixed-race on Easter Sunday, their forces and, after a pitched battle Both sides built up some thirty to burned the courthouse and massacred 1873, the Democrats fifty black prisoners. violating section 6 of the Enforcement Act of 1870 by conspiring to interfere of the Enforcement Act of 1870 by conspiring violating section 6 peaceably, to bear two black Republicans to assemble with the rights of due process of law, and liberty unless deprived thereof by arms, to enjoy life benefit of all laws, and to vote. to enjoy the equal W Bradley, bearing as it does an earnest of the Supreme Court’s future action Bradley, bearing as it does an earnest of the Bradley returned to Washington while considering the case” confirmed the view that “Woods Bradley returned to Washington while considering was unduly prejudiced against the prisoners”). N B 64 (1988); Court’s opinion in 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 23 29-MAY-14 11:59 will take the credit, and you shall do the work, as usual.” Louisiana.local relatively orderly, of 1872 had been the election Although the court- victory, and occupy the count, claim a were able to rig Democrats house. a and organized seized the courthouse the Republicans Uncowed, it. “posse” to defend mostly black 34923_hlc 49-2 Sheet No. 61 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 61 34923_hlc 34923_hlc 49-2 Sheet No. 61 Side B 06/09/2014 15:03:23 , , 27 F. Cas. for the princi- Cruikshank Prigg , as noted above, Prigg In 15 (Bradley, Circuit Justice, C.C.D. United States v. Rhodes 142 – . Bradley began with a discussion of Jus- Bradley began with 141 Prigg v. Pennsylvania 143 Had Bradley chosen, he could have applied this purposive ap- Had Bradley chosen, he could have Only one year before, the Supreme Court had emphasized that Only one year before, the Supreme (quoting Prigg v. Pennsylvania, 41 U.S. 539, 618 (1842)). at 710. 144 United States v. Cruikshank, 25 F. Cas. 707, 713 Id. Id. Justice Noah Swayne had taken this approach in Stripped of its artificial and technical structure, the argument and technical structure, the Stripped of its artificial exclusively secured by, or comes to this, that, although rights are the national government, yet, duties are exclusively imposed upon, or to execute these duties unless the power to enforce these rights of legislation enumerated can be found among the express powers any means of giving them in the constitution, they remain without must operate solely proprio effect by any act of congress, and they operation; nay, even al- vigore, however defective may be their become a nullity from the though in a practical sense, they may them, or to provide against want of a proper remedy to enforce their violation. the true interpretation of the constitution, If this be many of its avowed and it must, in a great measure, fail to attain rights and a recognition of positive objects as a security of duties. At first glance, this passage might appear to support an expansive view At first glance, this passage might appear Jurisprudentially, Bradley’s opinion provided the first clear indication first clear the provided opinion Bradley’s Jurisprudentially, 141 142 143 144 by contrast, there was no need to imply powers to enforce the rights of freed no need to imply powers to enforce by contrast, there was in the enforcement powers were expressly granted slaves, because those Amendments.clauses of the Reconstruction Nevertheless, Bradley quoted at contained no to the objection that the Constitution length Story’s response enforce the Fugitive Slave Clause: grant of power to the Court had held that Congress possessed an implied power to enforce the that Congress possessed an implied the Court had held to the return of their human property.right of slaveholders In tice Story’s opinion in tice Story’s opinion 785, 793 (Swayne, Circuit Justice, C.C.D. Ky. 1866) (No. 16,151), citing ple that constitutional provisions should be interpreted “to give to the words of each just such of congressional power.congressional of had “[s]tripped” away considerations of Story ensure that the enforcement of slave- “artificial and technical” doctrine to “defective,” or the rights reduced to a holders’ rights would not be rendered “nullity.” by the Reconstruction Amend- proach to the freed people’s rights guaranteed ments. La. 1874) (No. 14,897). 408 legis- toward approach critical a highly would adopt Court Supreme that the Review Rights-Civil Liberties Law Civil Harvard Amendments. the Reconstruction lation enforcing full It prefigured the [Vol. that con- important doctrines three enormously in establishing Court’s ruling 49 doctrine, the state action enforcement today: civil rights tinue to constrain withholding and the intentional discrimination, of proving the requirement to enforce means the choice of “appropriate” to Congress on of deference Amendments. the Reconstruction \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 24 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 61 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 61 34923_hlc 34923_hlc 49-2 Sheet No. 62 Side A 06/09/2014 15:03:23 R R 151 — But ONDI- C 149 Prigg , 109 U.S. 3, NQUIRE INTO THE I 146 Further, the Court had set Further, The Civil Rights Cases 145 11). (Comm. Print 1872). Although as- – OMMITTEE TO TATES C S ELECT S , 41 U.S. at 610 unlike the slaveholders’ rights in OINT J — Snubbed LandmarkSnubbed 409 Prigg Because the rights of assembly, of bearing arms, Because the rights NSURRECTIONARY note 77, at 392, 394. I 120 and accompanying text. OF THE 148 – . 15. ATE Despite the sensational and well-known collapse of Despite the sensational and well-known – EP (quoting supra , L 150 , R Id. , 25 F. Cas. at 710. 11, 714 ONG 15. Bradley repeated this explanation in notes 104 – – RELEASE C T D 42 TION OF FFAIRS IN THE 147 . at 72. . at 710 . at 714 on that point in accord with Circuit Judges Woods and Bond. on that point in accord with Circuit A The Slaughter-House Cases, 83 U.S. 36, 71 (1873). The Slaughter-House Cases, 83 U.S. 36, 71 Id See supra Cruikshank Id Id See in any fair and just construction of any section or phrase of these of any section and just construction in any fair which we have to look to the purpose it is necessary amendments, they were spirit of them all, the evil which said was the pervading to the and the process of continued addition designed to remedy, that purpose was supposed to be accomplished, Constitution, until law can accomplish it. as far as constitutional But Bradley chose to ignore the purposes of the Reconstruction to ignore the purposes of the But Bradley chose — 145 146 147 148 149 150 151 where Woods and Bond had deferred to Congress’s determination that regu- where Woods and Bond had deferred under the circumstances, Bradley lating private action was “appropriate” it to require that Congress respond seized on the term “enforce” and read only to specific state violations. He overturned the counts alleging interfer- arms, and of due process on the ence with the rights of assembly, of bearing state violation of those rights.ground that they failed to allege any In words explanation for vetoing the Civil that recalled President Andrew Johnson’s to enforce the amendment is all Rights Act of 1866, he declared: “Power that is given to congress. If the amendment is not violated, it has no power over the subject.” forth the general principle that general principle forth the natural rights originally protected by the states, they called for a different natural rights originally protected by method of enforcement. Amendment prohibited only the The Fourteenth denying these rights, observed Brad- states and not private individuals from ley and of due process were all state enforcement, documented in voluminous congressional testimony, state enforcement, documented in voluminous sembled in the midst of partisan strife, the material contained in this report is highly regarded by historians. Amendments. opinion the principle that the Instead, he drew from Story’s upon the character a constitutional right “will depend method of enforcing of the right conferred.” operation and force, consistent with their legitimate meaning, as may fairly secure and attain operation and force, consistent with their legitimate the ends proposed.” “the one pervading purpose” of the Amendments was “the protection of the protection was “the the Amendments of purpose” one pervading “the had for- who of those oppressions from the citizen and freeman newly-made over him.” unlimited dominion merly exercised had shown, the texts and Circuit Judges Woods and Bond As Justice Swayne to fulfill that provided ample room for Congress of the amendments purpose. 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 25 29-MAY-14 11:59 11 (1883). 34923_hlc 49-2 Sheet No. 62 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 62 34923_hlc 34923_hlc 49-2 Sheet No. 62 Side B 06/09/2014 15:03:23 R R R 157 a charge 159 10 (C.C.E.D. Va. As discussed – case itself well 153 It is noteworthy, 154 Cruikshank The federal and state gov- The federal and state ’s purposive approach to congres- . The Civil Rights Cases, 109 U.S. 3, 155 cf Prigg In the name of state autonomy, then, 99. – 156 43. – note 6, at 142 , 25 F. Cas. at 711. , 25 F. Cas. at 715. , 25 F. Cas. at 714. 152 text accompanying notes 95 text accompanying note 163. Instead, he again fretted that Congress might enact “an entire Instead, he again fretted that Congress supra 158 , ANE 30 (1883) (Harlan, J., dissenting) (discussing 30 (1883) (Harlan, J., dissenting) (discussing Prigg v. Pennsylvania, 41 U.S. 539, 618 (1842); Prigg v. Pennsylvania, 41 U.S. 539, 618 (1842); Cruikshank See infra See supra L Cruikshank United States v. Petersburg Judges of Election, 27 F. Cas. 506, 509 Cruikshank – As for the counts charging conspiracy to deprive African Americans of As for the counts charging conspiracy Where Story had stressed effective rights enforcement, Bradley evinced rights enforcement, had stressed effective Where Story 152 153 154 155 156 157 158 159 below, this fear was not entirely without a logical basis. below, this fear was however, that Bradley invoked state autonomy to justify overturning federal invoked state autonomy to justify however, that Bradley bolstered interfering with southern state governments, actions that, far from paramilitary insurgents. their authority against ernments were aligned on the same side of a struggle to preserve law and on the same side of a struggle ernments were aligned judicial concern.order, normally a cardinal The illustrates this alignment; the State of Louisiana had secured 140 indictments the State of Louisiana had secured illustrates this alignment; and supporters after a crowd of armed defendants only to drop the cases threatened its prosecutor with death. Bradley blocked the federal government from assisting state governments in Bradley blocked the federal government the preservation of their own authority.actual the apparently, Bradley, To insurrection paled beside the hypotheti- and immediate threat of paramilitary intrusions on state autonomy. cal possibility of future congressional faulted the prosecution for failing rights enjoyed by white citizens, Bradley “with a design” to harm their victims to allege that the defendants had acted previous condition of servitude.” “on account of their race, color, or body of municipal law,” this time adding that such law would be “for the body of municipal law,” this time adding class of the community,” protection and benefit of a particular 1874) (No. 16,036). a strong concern for state autonomy.a strong concern for Congress were permitted to reach If federal “system worried, it might enact a comprehensive private action, he the security of person and property.” of municipal law for 26, 28 resist the conclusion that the substance and sional power at length, and opining that “I cannot have been sacrificed by a subtle and inge- spirit of the recent amendments of the constitution nious verbal criticism”). Where Circuit Judge Bond had deferred to “the judgment of congress” that Where Circuit Judge Bond had deferred of race and color” could not be pre- interference with rights “on account of racial motivation, Bradley showed vented without dispensing with proof or for the practicalities of en- no concern either for Congress’s judgment forcement. 410 pri- prohibiting that legislation possibility the not to consider chose Bradley amendments. under the be “appropriate” might interference vate Justice In Review Rights-Civil Liberties Law Civil Harvard defendants’ accepted the be said that Bradley it might Story’s terminology, [Vol. whether without considering action argument and technical” state “artificial 49 rights the freed people’s “defective” or reduce render enforcement it would to a “nullity.” \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 26 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 62 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 62 34923_hlc 34923_hlc 49-2 Sheet No. 63 Side A 06/09/2014 15:03:23 R R R R — , 25 F. Cas. 162 Cruikshank like — , 25 F. Cas. at 704. note 118, at 834 (ninth count). United States v. Crosby Crosby supra , ROCEEDINGS P RIAL Snubbed LandmarkSnubbed 411 T LAN note 100, at 94.at 100, note Section 6 made it a felony to conspire “to 06. K – He acknowledged that the indictment arguably satis- indictment arguably that the He acknowledged supra 160 , note 80. , 25 F. Cas. at 715. hatred presented at trial, see On the evidence of race , 25 F. Cas. at 715. Bradley also objected to the vagueness of these counts, . Here, Bradley was not innovating. In supra Id note 6, at 105 Federalism and due process also prevailed on the counts charging process also prevailed on the counts Federalism and due ACZOROWSKI Circuit Judges Woods and Bond had avoided this problem by holding and Bond had avoided this problem Circuit Judges Woods Cruikshank K The Civil Rights Cases, 109 U.S. 3, 25 (1883) (Bradley, J.).The Civil Rights Cases, 109 U.S. 3, 25 (1883) On the charge of class Cruikshank supra Bradley’s concern about the theoretical slippery slope toward federal about the theoretical slippery slope Bradley’s concern 161 , 163 162 163 160 161 ANE fied the requirement anyway, as racial motivation “may be inferred from the “may be inferred as racial motivation anyway, fied the requirement and that the African race, injured were of the that the persons allegation rights en- enjoyment of the of the exercise and to deprive them intent was exacti- upon technical nevertheless insisted white citizens,” but joyed by tude. involved painfully obvious state failures to enforce black rights in situations involved painfully obvious state failures where the salience of race was undoubted. Boundaries could be drawn later, in a case that arguably involved overreaching. Bradley, on the other hand, a new, tight boundary, but also to en- found it necessary not only to mark that arguably fell within that bound- force it retroactively on a state of facts ary. Bradley was technically wrong, and Woods and The point is not that Bond correct. that Bradley reached out to narrow the Amend- It is, rather, the basis of concerns not raised on the ments and release the perpetrators on the very existence of official law facts of the case, and in a context where and order was at stake. simply that the defendants’ actions were reachable by Congress. actions were reachable by simply that the defendants’ They felt Enforcement Act or the outer limits either of the no necessity to demarcate their cases of Congress’s authority, probably because L interference with the right to vote.interference with again, despite the abundant evi- Here to announce and en- presented at trial, Bradley chose dence of race hatred of specifying racial motivation. force a pleading requirement intrusions into state “municipal law” was not without a basis. “municipal law” was not without intrusions into state of 6 Section almost any con- could have been read to criminalize the Enforcement Act of any other per- to interfere with virtually any right spiracy by any persons son. which charged that the defendants had aimed “to prevent and hinder them in the free exercise which charged that the defendants had aimed right and privilege to the full and equal benefit and enjoyment of their several and respective without specifying any particular laws or of all laws and proceedings then and there enacted” proceedings. legislation, see 701, 704 (C.C.S.C. 1871) (No. 14,893), for example, the defense had objected that a similar 701, 704 (C.C.S.C. 1871) (No. 14,893), for Federal or State, of the protection of which [the count had “not averred what were the laws, victim] was so deprived.” Judge Bond joined in striking this count for vagueness. free injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same.”Act Enforcement of 1870, ch. 114, § 6, 16 Stat. 140, 141. that echoed white supremacists’ allegations of “class legislation” and legislation” “class of allegations white supremacists’ echoed that favor- “special as Americans of African later characterization his prefigured the law.” ite[s] of 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 27 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 63 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 63 34923_hlc 34923_hlc 49-2 Sheet No. 63 Side B 06/09/2014 15:03:23 R R R R R — note supra note 72, at supra that the Privi- , — EMANN Whites celebrated in note 112, at 153. L 169 In August, a crowd of supra , 170 note 112, at 100; Frantz, His discussion of the Thirteenth His discussion supra note 6, at 215; , RANDWEIN 165 Moreover, his concept of state neg- his concept of state Moreover, B supra 164 , Interestingly, Bradley also affirmed Interestingly, Bradley Slaughter-House Cases ANE 166 RANDWEIN These dicta holding out the theoretical pos- These dicta holding L 10, 714; 12. – – B 167 49; ). – note 100, at 155. indictment, led an armed force to a nearby town and indictment, led an armed force to a supra , Cruikshank note 6, at 148 15 (“Grant that this prohibition now prevents the states from interfering , 25 F. Cas. at 713; , 25 F. Cas. at 709 , 25 F. Cas. at 711 – supra Cruikshank 70. , – at 714 at 151, 155. B. Bradley’s Ruling on the Ground The Impact of Justice ACZOROWSKI EITH Cruikshank Cruikshank Cruikshank Id. K Id. K 168 Immediately after Bradley’s ruling, federal officials predicted that it Immediately after Bradley’s ruling, To be sure, not all of Bradley’s pronouncements were unfavorable to were unfavorable pronouncements Bradley’s all of sure, not To be 164 165 166 167 168 169 170 Colfax by holding a mass meeting, riding out in the night, and slitting the Colfax by holding a mass meeting, who happened to be walking along the throat of Frank Foster, a black man road.Christopher Columbus Nash, the first named defen- Two days later, dant in the whites that reportedly included Nash marched to the Republican stronghold whites that reportedly included Nash African Americans, torturing one of Coushatta and murdered three leading to death in front of a crowd. exe- The next day, armed white supremacists one of whom had warned that cuted six white Republican office holders, ejected five Republican officials from office. ejected five Republican officials from lect might have allowed more room for enforcement than does the present- than does room for enforcement have allowed more lect might or prose- tested by Congress a possibility never of state action, day doctrine Americans. behalf of African cutors on to reach private affirmed that it empowered Congress Amendment strongly to cover only narrowed the scope of the Amendment action, but he then by race. private action motivated leges or Immunities Clause of the Fourteenth Amendment incorporated Clause of the Fourteenth Amendment leges or Immunities the rights to as- in the Constitution, including rights that were enumerated soon be rejected by and to bear arms (a view that would semble peaceably the full Court in notwithstanding the recently issued notwithstanding the sibility of future enforcement did nothing, however, to blunt the force of the did nothing, however, to sibility of future enforcement prosecutors, or white supremacists, discouraging holdings in emboldening across the South.demoralizing Republicans legal historian In the words of Bradley’s constitutional analysis were Robert Kaczorowski, the “nuances of but the end result certainly not clearly understood by contemporaries, was.” with the right to assemble, as being one of such privileges and immunities . . . .”). would unleash white supremacists to resume their campaign of violence would unleash white supremacists proven correct. across the South, and they were soon 132, at 1369 25. 412enforcement.from any Amendment the Fifteenth In dictum, he exempted Review Rights-Civil Liberties Law Civil Harvard exploited that was later or neglect, an opening of state action requirement [Vol. by federal prosecutors. (albeit rarely) 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 28 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 63 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 63 34923_hlc 34923_hlc 49-2 Sheet No. 64 Side A 06/09/2014 15:03:23 R R R R R R R R R R R : : OLFAX OUISIANA C Cruikshank EDEMPTION L , however, R note 72, at 76; In the three http://warhisto 176 ACE IN ATTLE OF supra R OAD TO , note 81, at 132. Coushatta marked Coushatta R AND HE 171 1873 B Cruikshank , available at supra EMANN , T HE , L note 100, at 155. , T ABLE (2006), ERMAN R supra OGUE ADICALISM P , , R 13 (reporting that the white supremacist 56 (recounting that Bradley’s “ – K. H AR – OUISIANA ICHAEL note 6, at 218; 15 (observing that Bradley’s “circuit opinion http://perma.cc/8V59-UUAZ. On the distinc- – L : W M AMES J supra ACZOROWSKI Pending a ruling in Pending a ruling in 70 (1984); and , 16; K – – 175 ANE 97; L archived at note 6, at 212 – Snubbed LandmarkSnubbed 413 During the three months following the ruling, During the three months following note 100, at 155 note 3, at 114 ECONSTRUCTION 177 supra 23 and accompanying text. , R – note 3, at 115. supra 1879, at 169 – , supra note 6, at 115 ANE , OUNTERREVOLUTION IN The Battle of Colfax Courthouse inspired the idea for a Courthouse inspired the idea for The Battle of Colfax L supra note 6, at 198. C , note 2, at 295 note 6, at 149; 174 173 note 6, at 218. supra , 1869 , notes 122 ALELLY RUCIBLE OF supra V supra supra , supra , , C ACZOROWSKI , OGUE ALELLY , OLITICS V K H , at 199 (1984). P Democratic Party leaders launched a campaign of terrorist assaults Democratic Party leaders launched OGUE AHN EITH Within two months of Bradley’s ruling, the incidence of terrorism ruling, the months of Bradley’s Within two ANE See H K L H See supra See See 178 1877 This new phase differed qualitatively from the previous round of vio- previous round from the phase differed qualitatively This new UNNELL 172 – 177 178 171 172 173 174 175 176 T ARAMILITARISM AND OUTHERN ED black-majority states, where the Democrats had been divided between black-majority states, where the Democrats Bradley’s ruling tipped the balance moderates and “straight-out” militants, toward the straight-outs. the first time that white supremacists had staged a massacre of their own of their a massacre staged had supremacists that white time the first race. the legal consequences of such tactics remained unclear and the period of of such tactics remained unclear the legal consequences relative peace continued. ruling opened the floodgates. Bradley’s White believed that they could act with impunity. supremacists now White Leagues ousted Republican officials from twelve Louisiana par- White Leagues ousted Republican ishes. tiveness of the new phase of violence, see also tiveness of the new phase of violence, see also second campaign, in which night riding would be replaced with daytime, in which night riding would be replaced second campaign, black organization action to eliminate centers of undisguised paramilitary power. and Republican political S rian.org/mershon/hogue-colfax.pdf, on Republican-controlled towns and cities across the South including, most on Republican-controlled towns and had already risen so sharply “that contemporary observers described the observers described “that contemporary risen so sharply had already authority against national the South’s rebellion as a new phase in mayhem 1861.” begun in lence. juncture for the white suprema- Bradley’s ruling had come at a crucial cist movement. characterized by widespread Its first campaign of violence, had been brought to mainly at night and in disguise, vigilantism conducted moderately success- legislation and a series of an end by strong enforcement ful prosecutions. press hailed Bradley’s ruling as “effectively suspend[ing] federal law enforcement in Louisi- press hailed Bradley’s ruling as “effectively men could now resist Negro abuses without ana and the rest of the Deep South, so that white interference”); had touched off a disastrous reversal of the fragile southern peace that the administration earlier secured,” that conservatives read the opinion as “an unmistakable signal of a deliberate shift in national policy,” and that the “United States Attorney for Louisiana correctly thought that the price of Bradley’s fateful ruling would be ‘five hundred lives’ in the fall election campaign”). T 1862 P to national civil rights enforcement authority,” ruling was widely publicized as a decisive blow confident that the permanent elimination that “Democratic Conservatives became increasingly and that violence “exploded in the wake of of Enforcement Act prosecutions was at hand,” Bradley’s decisions”); resistance would be futile “thanks to Justice Bradley.” to Justice “thanks be futile would resistance 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 29 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 64 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 64 34923_hlc 34923_hlc 49-2 Sheet No. 64 Side B 06/09/2014 15:03:23 R R R R R R R R R , 44 18, – – Even WINNEY prose- S 185 10, 111 – 56; – who have per- 35 (1987) (describing 17, 154 Cruikshank – – note 72, at 108 . 421, 432 note 82, at 319. supra IST , note 81, at 116 supra , J. S. H supra EMANN , L M701, Reel 5, Instruction Book E, at 443 “White supremacists had,” concludes “White supremacists , 53 WINNEY 28; ABLE note 3, at 115. S – R 180 previously among the most vigorous in the previously among the most vigorous Enforcing the Enforcement Acts: The Department of and U.S. District Judge Robert A. Hill in- and U.S. District Judge Robert A. 1890 18; – – supra — 184 , , to tell the truth . . . for fear of their lives, or for , to tell the truth . . . for fear of their note 100, at 158 (quoting Letter from George Williams to W. note 100, at 158 (quoting Letter from George at 156, 158. Id. note 100, at 158. microformed on ALELLY supra V note 6, at 127 , note 140, at 125 (quoting Letter from Henry B. Whitfield, Dist. Att’y, note 175, at 170; supra 20; , – note 6, at 115. note 81, at 114 Stephen Cresswell, supra note 6, at 243. The U.S. Attorney for Mississippi complained that the new The U.S. Attorney for Mississippi complained , supra supra , In Mississippi, where White League units murdered some In Mississippi, where White League 181 , 183 supra supra , supra 182 , OGUE ACZOROWSKI , see also H petered out as the Department of Justice dropped 179 pending petered out as the Department of K At the same time, the Democrats forthrightly called for a “white forthrightly time, the Democrats At the same ERMAN AGRATH ACZOROWSKI OGUE ABLE ANE P — 179 See L M K See R H As expected, Bradley’s ruling decisively disrupted federal enforcement ruling decisively disrupted federal As expected, Bradley’s note 82, at 319 42; 182 183 184 185 179 180 181 – the stalwart Judge Woods, whose Circuit extended across the deep South the stalwart Judge Woods, whose Circuit decided to cease trying “cases which from Texas to Georgia and Florida, historian James Hogue, “at last discovered the mix of paramilitary action “at last discovered the mix of historian James Hogue, . . . across the that just might jettison Reconstruction and racialized politics entire South.” structed him to cease prosecuting until the Supreme Court ruling. structed him to cease prosecuting until difficulties with witnesses and intimidation). sonal knowledge of the facts of personal friends, accomplishment of considerations of policy, protection political and party purposes,” surge in terrorism made it “impossible to get the witnesses, surge in terrorism made it “impossible three hundred African Americans during the six months following Bradley’s three hundred African Americans during ruling, the enforcement effort South prosecutions. man’s government,” disapproved Klan-style violence, and characterized the and characterized Klan-style violence, disapproved man’s government,” paramilitary actions as self-defense. tactics helped the Democratic These and Mississippi of Alabama (47% black) in 1874 Party to regain control in 1875. (more than 50% black) efforts. directed U.S. Attorney General George Williams similar issues and to take no action on cases raising cutor James Beckwith “until it is Enforcement Act prosecutions in Tennessee ordered an end to be constitutional or Supreme Court will hold them to known whether the otherwise.” Justice in Northern Mississippi, 1870 (Gen. Recs. of the Dep’t of Justice, U.S. Nat’l Archives)) (internal quotation marks omitted). (Gen. Recs. of the Dep’t of Justice, U.S. Nat’l immediately following Bradley’s ruling, Confronted with the spectacular wave of terrorism 1874 calling for vigorous enforcement, but that Williams did issue a circular in September policy was quickly aborted. W. Murray (May 4, 1875), to Edwards Pierrepont (Nov. 6, 1875) (on file with Chronological File (Mississippi), U.S. Nat’l Archives)); 139 supra 414 Ala- Eufaula, 14, 1874), (September Louisiana New Orleans, spectacularly, and 7, 1874 (December Mississippi Vicksburg, 3, 1874), (November bama Review Rights-Civil Liberties Law Civil Harvard Clinton, (September 1, 1875), City, Mississippi 2, 1875), Yazoo September [Vol. (October 2, Mississippi 1875), Friar’s Point, (September 5, Mississippi 49 16, (July 4 and September South Carolina Hamburg and Ellenton, 1875), and 1876). \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 30 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 64 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 64 34923_hlc 34923_hlc 49-2 Sheet No. 65 Side A 06/09/2014 15:03:23 R R R R 191 88, – During 190 1864 a period 187 — 189 ONDITION OF THE EUNION C R ONSTITUTIONALISM IN THE Comm. Print 1875) (testi- ON THE C . note 3, at 116. 246 ( OMM supra C , OUTH S OLITICS AND ECONSTRUCTION AND amend. XV, § 1. . ELECT : P , as explained in Bradley’s opinion , as explained in Bradley’s ALELLY , R V H. S ONST IGHTS 20. For other defenses of Bradley’s opinion, see – R AIRMAN 1873 to less than 10% after 1874. than 10% after 1873 to less U.S. C F – QUAL ONDITION OF THE Cruikshank E Snubbed LandmarkSnubbed 415 C HARLES only a handful of civil rights violations were suc- violations were of civil rights only a handful chose to cut back so sharply on the authority of his chose to cut back C note 100, at 157; As summarized by Louisiana Governor William Pitt Governor William by Louisiana As summarized — — ON THE note 112, at 119 Rates of conviction in southern civil rights prosecu- civil rights southern in of conviction Rates 188 . To explain this apparent inconsistency, he pointed to the To explain this apparent inconsistency, note 82, at 317. supra EP 49% in 1871 186 , (1978); – supra note 6, at 147 (quoting 192 amend. XIV, § 1; , ., R . supra MANCIPATION AND 69 (1987). , 137 – ONG supra , E ONST RA , C E ELZ ST ACZOROWSKI EITH RANDWEIN at 266 WINNEY B AR B U.S. C Bradley stated categorically that when “acknowledged rights and privileges of the citi- Letter from Judge William B. Woods to Justice Joseph P. Bradley (Dec. 28, 1874) (on Letter from Judge William B. Woods to Justice S K K , 81 Brandwein’s careful and illuminating analysis of Bradley’s doctrinal Brandwein’s careful and illuminating Given his leading role, the question inevitably arises as to why Bradley role, the question inevitably arises as Given his leading W II, 190 191 192 186 187 188 189 C. Condition” of Southern Labor Justice Bradley and the “Normal a loyal Republican a loyal Republican ERMAN IVIL ART OUTH — cessfully prosecuted. cessfully of ferocious terrorism of ferocious the two years between Bradley’s ruling and that of the full Court of the full Court ruling and that between Bradley’s the two years P Kellogg, Bradley’s order had effectively “establish[ed] the principle that the principle effectively “establish[ed] Bradley’s order had Kellogg, a negro.” man could be punished for killing hereafter no white tions fell from 36 tions fell colleagues in Congress and the executive branch.colleagues in Congress In a recent and important may be found in has proposed that the answer book, Pamela Brandwein of constitutional doctrine.principled considerations She argues that the dis- in missal of the indictments mony of William Pitt Kellogg)) (internal quotation marks omitted). mony of William Pitt Kellogg)) (internal quotation and that of the full Court, was “comprehensible within a doctrinal frame- Court, was “comprehensible within and that of the full punishment for a massacre.” work” and not “a way of disallowing choices does not, however, support this conclusion.choices does not, however, support this Instead, we see Bradley doctrinal principles as he moves alternately applying and eliding various from issue to issue. text, both the Fourteenth Starting with the constitutional that could be read to support a and Fifteenth Amendments contain language state action (“No state shall” in the judicially enforceable requirement of . . . by any State” in the Fifteenth). Fourteenth, and “denied or abridged zen, which form a part of his political inheritance derived from the mother country . . . are zen, which form a part of his political inheritance derived from the mother country . . . the secured in the constitution of the United States only by a declaration that the state or not United States shall not violate or abridge them, it is at once understood that they are created or conferred by the constitution, but that the constitution only guaranties that they shall not be impaired by the state, or the United States, as the case may be.”v. States United Cruikshank, 25 F. Cas. 707, 710 (Bradley, Circuit Justice, C.C.D. La. 1874) (No. 14,897).Yet, file with the New Jersey Historical Society, MG 26, box 3, Joseph P. Bradley Papers, New file with the New Jersey Historical Society, Jersey Historical Society, Newark, N.J.). H C But Bradley chose to follow this language with regard to the Fourteenth but But Bradley chose to follow this language not the Fifteenth. S raise the questions now before the Supreme Court until the Court lets us Court until the Court the Supreme before now the questions raise its opinion.” have 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 31 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 65 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 65 34923_hlc 34923_hlc 49-2 Sheet No. 65 Side B 06/09/2014 15:03:23 R R R R R 197 note 112, at 93, 95. note 112, at 99. supra , note 112, at 102. It should also be supra , note 112, at 99. Unlike the Fourteenth Amend- Unlike the supra , RANDWEIN 193 supra , B at 715. After frankly exposing this difficulty, After frankly exposing RANDWEIN B 196 Id. RANDWEIN 10, 714; 13; B – – RANDWEIN B 15; – Brandwein acknowledges that Bradley thus “dis- Brandwein acknowledges note 112, at 102. note 112, at 100. 194 . at 714 supra supra Id , , , 25 F. Cas. at 709 , 25 F. Cas. at 712 , 25 F. Cas. at 711; against intentional race discrimination, Bradley made clear its equivalence with Unfortunately for this claim, however, Bradley proceeded to ig- this claim, however, Bradley proceeded Unfortunately for only RANDWEIN RANDWEIN 195 B Cruikshank Cruikshank B Cruikshank We have yet to consider, however, the single most important manifesta- We have yet to consider, however, the 197 193 194 195 196 ment, he wrote, the Fifteenth conferred “a positive right which did not exist right which conferred “a positive wrote, the Fifteenth ment, he exercising discrimination in be free from racial the right to before,” namely the federal be enforced by and therefore could right to vote, the preexisting government directly. Brandwein concludes that Bradley’s thinking was unstable and aptly ob- that Bradley’s thinking was unstable Brandwein concludes Bradley’s jurisprudence.” serves that “instability is a feature of pensed with the text” of the Fifteenth Amendment but argues that the dis- of the Fifteenth Amendment but pensed with the text” provided a rationale rights and preexisting rights tinction between “created” across different and was used in a consistent manner that “had integrity cases.” nore that distinction altogether in his discussion of the Thirteenth Amend- altogether in his discussion of the nore that distinction personal liberty and preexisting, natural rights of ment, which protected under his theory. to call for a state action requirement therefore appeared which contained no to the text of the Amendment, There, he turned instead at the states. prohibition directed the Fifteenth Amendment on this score. tion of this instability, namely Bradley’s selective deference to Congress. tion of this instability, namely Bradley’s he accorded Congress no deference Throughout most of his opinion, and implicitly claiming ex- whatever, reading the Amendments legalistically and apply them.clusive judicial authority to interpret the to regard With rediscovered his respect for Con- Fifteenth Amendment, however, Bradley gress as a co-equal branch of government. Having announced that the of state action or neglect, he Amendment was exempt from any requirement explained: he found in the Fifteenth Amendment a newly created right that could be enforced against he found in the Fifteenth Amendment a newly private individuals. consistently to the Fourteenth and Fifteenth noted that Bradley did not apply the distinction Amendments. If, as he wrote with regard to the Fifteenth, the enactment of a protection preexisting right constituted a newly “created” against discrimination in the exercise of a Fourteenth, which conferred protection against right, then the Equal Protection Clause of the natural rights and state-created positive rights, discrimination in the exercise of preexisting would also appear to create a new right.did Amendment Fifteenth the Bradley, to According “not confer the right to vote.” Instead, it conferred only “a right not to be excluded from that voting by reason of race, color or previous condition of servitude, and this is all the right congress can enforce.”712.at Cas. F. 25 If that were enough to constitute a “created” right to for purposes of reaching private action under the Fifteenth Amendment, then it would seem be enough for purposes of the Fourteenth as well. By interpreting the Equal Protection Clause to protect 416 and Constitution the preexisted which rights,” “natural between distinction rights “created” and first instance, in the the states by to be enforced were Review Rights-Civil Liberties Law Civil Harvard government if the federal might go unenforced Constitution that by the U.S. [Vol. directly. to enforce them lacked power 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 32 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 65 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 65 34923_hlc 34923_hlc 49-2 Sheet No. 66 Side A 06/09/2014 15:03:23 R R R . ONG , 41st who C — LOBE , 25 F. Cas. . G ONG Representative C 201 Cruikshank with In short, the “opinion of 2 (1866), 202 – Rep. Coburn). 203 Because state enforcement had Because state enforcement 41. – note 132, at 1357. 200 , 41st Cong., 2d Sess. 3613 (1871); quoting supra 41 ( LOBE – . G Frantz, note 112, at 40 ONG Snubbed LandmarkSnubbed 417 C , 39th Cong., 1st Sess. 1 supra See also See , , 42d Cong., 1st Sess. 153 app. (1871). note 112, at 40 LOBE 198 . G LOBE . G ONG , supra 2 (1870). RANDWEIN , 25 F. Cas. at 713. – C B ONG C During the legislative debates, the question of state action was debates, the question of state During the legislative 199 RANDWEIN Compare B protection guarantee of the Fourteenth Garfield was referring to violations of the equal Although the Fourteenth Amendment was proposed in June 1866, and the Fifteenth Cruikshank Enforcement Act of 1870, ch. 114, § (Ku Klux Klan) Act 6, 16 Stat. 141; Enforcement the Enforcement Act of 1870, consist- Senator John Pool, who authored section 6 of , 42d Cong., 1st Sess. 609 (1871). citations to the similar views of other members For At various points in his opinion, then, Bradley based his legal conclu- At various points in his opinion, then, Bradley ruled as he did.This returns us to the question of why Rarely This same reasoning, if applied to the Fourteenth Amendment, would if applied to the Fourteenth Amendment, This same reasoning, Such was the opinion of congress itself in passing the law at a time law at passing the itself in congress opinion of was the Such upon consulted who had the same were its members many of when it to the states. in proposing form of the amendment the original is admissible, and of the amendment a construction And as such a be assuming grave doubt, it would is one at least of the question the extent indicated, the law, to for this court to decide great deal unconstitutional. 201 202 203 198 199 200 LOBE and future President James A. Garfield argued that the Ku Klux Klan bill and future President James A. Garfield of state inaction, but the bill passed should be amended to require a showing overwhelmingly without any such amendment. congress itself in passing the law” was no less clear with regard to the Four- congress itself in passing the law” was Congress could reach private action teenth Amendment than to the Fifteenth: failed. if, in its view, state enforcement had clearly failed, it was “appropriate” for Congress to act. clearly failed, it was Cong., 1st Sess. 1 G raised, and proponents of each Act maintained that Congress was empow- of each Act maintained that Congress raised, and proponents and Fifteenth individuals under both the Fourteenth ered to reach private enforcement failed. Amendments if state sions on diametrically opposite choices to honor or disregard the constitu- sions on diametrically opposite choices rights distinction, and to tional text, to follow or ignore the natural/positive accord or withhold deference from Congress. At this level of inconsistency, his conclusions. doctrinal considerations cannot explain on such puzzles, but Bradley do historical materials shed much light have led Bradley to refrain from requiring proof of state action or neglect in refrain from requiring proof of state have led Bradley to the particular case. with section 6 of the En- This requirement conflicted Klan Act of 1871, 1870 and section 2 of the Ku Klux forcement Act of of state action or private conspiracies with no mention which criminalized neglect. of Congress, see Amendment. Amendment not until February 1869, Bradley’s observation that the Enforcement Act of 1870 was passed “at a time when many of [Congress’s] members were the same who had consulted upon the original form of the amendment in proposing it to the states,” of 1871, ch. 22, § Stat. 13. 2, 17 ently maintained this view. 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 33 29-MAY-14 11:59 at 713, applies to a large majority of those who proposed the Fourteenth as well as the Fif- at 713, applies to a large majority of those who proposed the Fourteenth as well as the teenth. 34923_hlc 49-2 Sheet No. 66 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 66 34923_hlc 34923_hlc 49-2 Sheet No. 66 Side B 06/09/2014 15:03:23 R R R : EN RAD- note M Even left an left REE P. B supra 207 , — , F LAVEHOLDERS . S OSEPH 51 (1970). ] In an attempt – ABOR . J RITINGS 208 L 206 ON W H REE Before the war, he RITINGS MERICAN 40, 46 , F A ATE 204 W AR L OIL W S IVIL REE C ISCELLANEOUS ISTORY OF , F M ISCELLANEOUS in : A H ONER M 92 (supplying additional evidence that Brad- RITINGS OF THE – F ACE EFORE THE W opinion were compatible with his long- compatible with opinion were RIC R ) and compensate slaveholders whose ) and compensate B E note 205, at 99. note of Joseph 205, at 99; The Political Expressions ULING ARTY . at 1; Joseph P. Bradley, Speech at the Union Adminis- supra supra R P , , Id note 6, at 191 HE ISCELLANEOUS , T Cruikshank supra RITINGS RITINGS , M 76 (1981) (unpublished Ph.D. dissertation, Rice University) (on file 76 (1981) (unpublished Ph.D. dissertation, Rice , AKES – EPUBLICAN W W O ANE R L RADLEY AMES J , P. B Here, Bradley stressed the commonality of interest and outlook the commonality of interest and Here, Bradley stressed Dred Scott v. Sandford see also LEY 205 ISCELLANEOUS ISCELLANEOUS OSEPH M Letter from Joseph P. Bradley to Gentlemen of the German Committee 3, 7 (Oct. 24, Letter from Joseph P. Bradley to Gentlemen See, e.g. J On the Republican viewpoint, see M DEOLOGY OF THE 89 (1983). 208 204 205 206 207 I 98 (Charles Bradley ed., 1902) [hereinafter 98 (Charles Bradley ed., 1902) [hereinafter – HE after Lincoln proposed his Emancipation Proclamation, Bradley opposed im- after Lincoln proposed his Emancipation it would be economically “disastrous to mediate abolition on the ground that the implementation of gradual eman- the Southern States,” and insisted that people themselves.” cipation “must be left to the Southern to head off civil war, he drafted and forcefully advocated a thirteenth amend- to head off civil war, he drafted and forcefully permanently established slavery in ment to the Constitution that would have and prohibited it above. U.S. territories below a specified parallel argued that any North-South compromise consistent with “justice” must compromise consistent argued that any North-South their property” to of slaveholders to “emigrate with both protect the right that justice was United States (an unsubtle implication the territories of the served in and was not returned.human property escaped “No business man,” he as- as between the these are not the dictates of justice, serted, “can say that parties.” T 205, at 134; among all businessmen, slave owners and employers of wage labor alike, slave owners and employers among all businessmen, that slave owners the more widespread Republican view thereby repudiating from entrepreneurial aristocracy that prospered not constituted a degenerate forced labor of others. initiative and industry, but from the unusually revealing set of relevant writings. of relevant set revealing unusually writings do not Although these that the they do establish Bradley’s intentions, answers on yield definitive and dicta in his holdings 1862) (on file with the New Jersey Historical Society). In the same letter, Bradley claimed always to have considered slavery “a great evil,” but in a speech two days earlier to an audi- did ence less inclined to oppose slavery than the German Committee, he had declared that he not “hate the Southern people or their institutions,” and that he did “not care a straw about their institutions, comparatively.” ley “seems never to have been troubled by slavery”). 180 Written By Him 1 (1862) (on file with the P. Bradley, Compiled from Speeches, and Articles Justice Joseph Bradley and the Recon- New Jersey Historical Society); Ruth Ann Whiteside, struction Amendments 74 with Rice University digital scholarship archive). States formed below the line would have twenty years after their admission to the been permitted, however, to abolish those conditions Union. 418 related issues on intervened and actively run for Congress had Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 of labor on the problem and, in particular, on class and race held views control. viewed slavehold- historians, Bradley some present-day Prefiguring who but as businessmen precapitalist aristocrats, a distinct class of ers not as slave as opposed to wage labor. happened to employ \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 34 29-MAY-14 11:59 tration Meeting, Held in Newark (Oct. 22, 1862), 34923_hlc 49-2 Sheet No. 66 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 66 34923_hlc 34923_hlc 49-2 Sheet No. 67 Side A 06/09/2014 15:03:23 211 213 — — 210 whatever its faults — the hands having departed.” — their vagrancy only limited by their vagrancy only — how to restore the labor of the Southern Evidently, slavery — 212 Snubbed LandmarkSnubbed 419 Now, however, southern labor had been “broken up at a labor had been “broken up Now, however, southern 6. 7. – – 209 at 5 at 6 at 7. Letter from Joseph P. Bradley to Carry Bradley 3 (Apr. 30, 1867) (on file with the New Id. Id. Id. Diary of Joseph P. Bradley (May 3, 1867) (on file with the New Jersey Historical their means of locomotion.the planter keep them on How shall the plantation?services at times when a How shall he secure their in the loss of it? few days inattention to the crop results You can easily see how the equilibrium of labor on the plantations how the equilibrium of labor on the You can easily see is destroyed. of going where they Negroes that never had the right they go invested with that right; and off chose, find themselves other parishes to see the cities or One might expect a supporter of free labor to answer that, given the One might expect a supporter of free After slavery was nevertheless terminated by a Thirteenth Amendment by a Thirteenth terminated was nevertheless slavery After 209 210 211 212 213 had kept labor in a “normal condition” that entailed contentedly supplying had kept labor in a “normal condition” services at low cost. Bradley’s fears appeared to be confirmed three days steaming up the Mississippi: later, when he reported from a paddle-wheeler “Passed many sugar plantations in ruins blow,” and the results appeared to vindicate Bradley’s concern about the dire appeared to vindicate Bradley’s concern blow,” and the results had “not fully immediate abolition, which Northerners consequences of appreciated”: lush fertility of the southern soil, the planter could solve this problem by the lush fertility of the southern soil, the enough to secure the necessary la- simple expedient of offering wages high bor. mocked this solution as the “ready answer of the Bradley, however, little informed.” How so? Apparently, because wages set at urban levels might insist on urban wages. would “ruin” the planters, and the negroes Jersey Historical Society). Society). Bradley was not wrong to report that field workers were withholding labor, Bradley was not wrong to report that their purpose was precisely to defeat but he either missed or did not care that as possible of the “normal condi- the planters’ attempt to restore as much Why would the negroes insist upon wages higher than the planters could Why would the negroes insist upon pay?say that the Freedman’s Bureau is an engine of mis- “The people here, be discontented; gives them false no- chief; that it teaches the negroes to from labor.”tions; and utterly incapacitates them Bradley concluded: “This is the great question of the day States to a normal condition.” 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 35 29-MAY-14 11:59 very different from his own, Bradley continued to view the problem of black problem of view the to continued own, Bradley from his different very class. planter-business of his combined the point of view labor from In an his appoint- Orleans before written from New to his daughter, 1867 letter the problem disquisition on a highly revealing Court, he penned ment to the in the South.of labor control the superior productiv- began by admiring He prior had “rolled in wealth” which the planters soil, thanks to ity of southern to the war. 34923_hlc 49-2 Sheet No. 67 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 67 34923_hlc 34923_hlc 49-2 Sheet No. 67 Side B 06/09/2014 15:03:23 R R R R R R R , A- 214 S 215 91. – 34; Thus, – note 205, in some 219 ICHARDSON R — supra , 15; – note 205, at 90 RITINGS note 48, at 130 W supra , supra , 85. note 48, at 214 – ” the finer things in life, he RITINGS 220 ONOVAN W supra ISCELLANEOUS Laborers fell into “the great mass , M O’D 218 in , 71; – 61. ONOVAN – note 48, at 484 O’D ISCELLANEOUS 40, 170 M supra – 20. – in , incapable of enjoying 14. – Many northern Republicans, who nursed identical Many northern Republicans, note 48, at 55 Equality 216 Electoral Commission , supra note 74, at 104; note 2, at 139 , 63, 89, 109, 113 92. – – Although Bradley’s writings do not address strikes or taxes in Although Bradley’s writings do not supra supra mirrored those of the planters, who refused to accept the pro- who refused those of the planters, mirrored , , note 41, at 112 217 at 61 — . at 90 ICHARDSON ONER ONER F F R Id. Joseph Bradley, Joseph Bradley Id supra To Bradley, distinctions of race and class tended to track one another. To Bradley, distinctions of race and Such was the thinking of Bradley seven years before he issued what of Bradley seven years before Such was the thinking note 48, at 19; VanderVelde, , 214 215 216 217 218 219 220 when the Founders affirmed that “all men are created equal,” they most when the Founders affirmed that “all the cobbler into the most elegant draw- certainly did not mean to “introduce gayest belle of the town” or “to debate ing room to take a cup of tea with the State.” with grave Senators on the affairs of of mankind” that was “ because they lacked “your suggested in an undated essay on “Equality,” your whole aspirations.” refined emotions, your generous feeling, complaints about white laborers, could sympathize with southern planters on complaints about white laborers, could this score. particular, they do suggest a similarly negative view of laborers, black and particular, they do suggest a similarly white.“pure democracy” must, he opined in 1877, be The system of negro, or of one New York avoided because “the vote of one Louisiana rough . . . might wholly turn the scale.” position that black Americans could be induced to work by wages alone, and to work by wages could be induced black Americans position that who were in Congress, of his party’s leaders sharply from those departed labor. freedom of to protect the ex-slaves’ in a struggle then embroiled respects He drew the race line not between whites and people of color, but between He drew the race line not between whites others.and Anglo-Saxons he opined, “none has “[O]f all races of people,” in all its essential characteristics ever appeared better fitted and calculated and political liberty than the An- for advancing the case of Human freedom was arguably the single most important judicial opinion concerning Recon- most important judicial opinion was arguably the single struction. the interim the record does not Whether his views changed in indictment of Recon- prefigured in important respects the disclose, but they and, even- would use to win over conservative struction that the Democrats Republicans.tually, moderate discovered that a critique based Having one based on class, limited appeal, the Democrats added solely on race had laborers majority of ex-slaves were lazy, malcontented namely that the great the property of work and sought instead to confiscate who eschewed hard demagogues who either by staging strikes or by electing productive citizens, would enact taxes. VILLE supra at 217. 420 to from sunrise toil supervision, imperious labor, including of slave tion” life. working well as as of nonworking control and pervasive sunset, Review Rights-Civil Liberties Law Civil Harvard and question thus accommodated views on the labor Bradley’s [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 36 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 67 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 67 34923_hlc 34923_hlc 49-2 Sheet No. 68 Side A 06/09/2014 15:03:23 R R R R R R 92. – note 205, , Woods supra Hall , note 205, at 91 RITINGS whether it would be W supra — , He worried that immigration He worried RITINGS W “incapable of the higher aspira- “incapable 222 ISCELLANEOUS — M in Bradley approved New York State’s New approved Bradley , 224 221 . much of Yet, Bradley himself supplied 73 (quoting speech delivered July 4, 1860). – ISCELLANEOUS as Bradley recounted M Snubbed LandmarkSnubbed 421 In Bradley’s view, then, the “negro,” the “field view, then, the In Bradley’s opinion was well calculated to implement this opinion was well in — But in the national election of 1876, when the But in the national election of 1876, , 223 225 to the narrowing approach of Bradley’s subsequent to the narrowing approach of Bradley’s Cruikshank note 112, at 128. note 207, at 72 Equality Electoral Commission note 171, at 56. supra note 6, at 216. , supra Cruikshank Unfortunately for black Americans, the struggle for civil Unfortunately for black Americans, supra , 227 supra , Several years later, when black laborers managed to stage a strike Several years later, when black laborers RANDWEIN ANE UNNELL Whiteside, Joseph Bradley, Joseph P. Bradley, Annual Address Before the New Jersey State Agricultural Society Joseph Bradley, L B T One curious mystery remains to be discussed. In the foregoing account, Bradley’s 226 221 222 223 224 225 226 227 United States v. Hall here echoing his opinion of laborers his opinion of here echoing — would “result in the spread of effete races,” and that some immigrants were that some immigrants of effete races,” and in the spread would “result human soul.” tions of the legislative districting plan, which gave disproportional representation to ru- representation gave disproportional which plan, districting legislative vote” of prevent the “Irish because it would as “wise” ral constituencies, the state. City from controlling New York hand,” the “laborer,” the “cobbler,” the “New York rough,” and the “New the “cobbler,” the “New York rough,” hand,” the “laborer,” in society. occupied a subordinate position York Irish” appropriately Only equality, and even was each entitled to a degree of in the political sphere of voting. then, only at the moment Republican Party was fighting to retain its hold on the Presidency, the Grant Republican Party was fighting to retain Party reaped “nearly as high a percent- administration sent in troops and the Americans of voting age in the par- age . . . as the percentage of African ish.” rights was waged on a daily basis in all localities using all forms of power, rights was waged on a daily basis in using voting power. not just at election time in key districts of Circuit Judge Woods’s opinion I have contrasted the expansive approach in circuit court opinion in possible to prosecute “the breakup of a peaceful political meeting by riot possible to prosecute “the breakup for that purpose, without any definite and murder when committed simply the key language in Woods’s opinion. While deliberating on had written Bradley to ask for higher wages, white planters threatened another massacre and the strikers for higher wages, white planters threatened surrendered. narrow concept of equality. result emboldened white The holdings and economic and so- black subservience in day-to-day supremacists to enforce on voting rights pre- the dicta deferring to Congress cial interactions, while at election time, of temporary national enforcement served the possibility Party to harvest black votes.enabling the Republican In Grant Parish, for so decisively that, ruling shifted the balance of power example, Bradley’s likely perpetrators arraigned in court, even with U.S. troops on hand and the to be the complaining party in the not a single person would step forward murder of Frank Foster. (Oct. 2, 1868) (transcript on file with the New Jersey Historical Society). at 219. glo-Saxon, Anglo-American race.” Anglo-American glo-Saxon, 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 37 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 68 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 68 34923_hlc 34923_hlc 49-2 Sheet No. 68 Side B 06/09/2014 15:03:23 R note 228. At supra Bradley answered Bradley 228 It was at this point that ? Here, the evidence runs 233 . perpetrators could be The . had initially requested as- Woods Cruikshank Cruikshank Hall which, in Bradley’s view, reached private 232 , then what explains his expansive advice to , then what explains , but that Woods’s pointed persistence and the facts of , but that Woods’s pointed persistence Cruikshank If, as I have suggested, Bradley’s views on the “normal con- Bradley’s views on the “normal If, as I have suggested, Furthermore, the “extent to which Congress shall exercise Furthermore, the 231 230 Cruikshank As Congress “cannot compel the activity of state officials, the the activity of “cannot compel As Congress We might surmise that Bradley would have preferred to draw the We might surmise that Bradley would 229 234 Letter from Justice Joseph P. Bradley to Judge William B. Woods (Mar. 12, 1871) (on Letter from Justice Joseph P. Bradley to Judge Id. Id. Id. Letter from Justice Joseph P. Bradley to Judge William B. Woods (Jan. 3, 1871) (on file Id. Letter from Justice Joseph P. Bradley to Judge William B. Woods, It might be relevant that Bradley’s famous letter to Woods was not the that Bradley’s famous letter to Woods It might be relevant , which involved a deadly assault on a Republican campaign rally, in- , which involved a deadly assault on 228 229 230 231 232 233 234 yes, that private individuals could be prosecuted for interfering with the right with the interfering for be prosecuted could individuals private yes, that of assembly. prevent the prosecution action did not The absence of state denying . . . the states from “prohibits Fourteenth Amendment because the as well as includes inaction and “[d]enying of the laws,” equal protection action.” Woods, evidently not satisfied with Bradley’s answer, repeated his question Woods, evidently not satisfied with Bradley’s answered, this time specifying that notwithstanding that it had already been intent to prevent the exercise of the perpetrators acted “without any definite the right of suffrage.” Only then did Bradley, perhaps reminded of his Re- a rationale for upholding the prose- publican loyalties, provide Woods with cutions. action. into a political meeting,” on the other hand, would The “mere firing because no state had “made any law be “only a private, municipal offence” committed.” by virtue of which this outrage was sistance more than two months earlier, and Bradley had responded consist- two months earlier, and Bradley had sistance more than approach in ently with his eventual dition of southern labor” influenced his narrow approach to the Fourteenth labor” influenced his narrow approach dition of southern Amendment in Woods? advice on first in which he offered this power must depend on its discretion in view of the circumstances for on its discretion in view of the this power must depend each case.” line as he did in his first letter, which was consistent with his circuit court line as he did in his first letter, which opinion in prosecuted, he wrote then, but only if they had acted “for the purpose of then, but only if they had acted prosecuted, he wrote the right of suffrage, to whom it is se- preventing persons from exercising cured by the 15th Amendment,” only appropriate legislation” would be “that which will operate directly on which will operate would be “that legislation” only appropriate offenders.” duced him to go further and protect political party assemblies per se.duced him to go further and protect Then, the question is: why did he renege in Hall dry. discover a way to distinguish electoral campaign Maybe he could not file with the New Jersey Historical Society). with the New Jersey Historical Society). the beginning of this letter, Bradley specified that he was replying to Woods’s letter of Febru- ary 7th (“your letter of 7th ulto,” ulto being an abbreviation of “ultimo”). 422 of suffrage.” the right of the exercise to prevent intent Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 38 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 68 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 68 34923_hlc 34923_hlc 49-2 Sheet No. 69 Side A 06/09/2014 15:03:23 R R 43. – . Or 08, 142 Waite did – 238 Cruikshank 69, 107 – Chief Justice Waite On the issues of state 235 236 note 48, at 68 notes 20, 167, and accompanying text. supra , supra Furthermore, the prosecution’s failure 237 239 a line that, intentionally or not, sacrificed intentionally or a line that, from assemblies that intervened more gener- that intervened assemblies from ICHARDSON — R Snubbed LandmarkSnubbed 423 Hall , announced the day after the Battle of Colfax Courthouse, had , announced the day after the Battle of Colfax U.S. 36, 79 (1873). has been aptly described as This sentence, which , 92 U.S. at 554. 53. On Bradley’s view, see – at 556. at 552 D. of Reconstruction The Supreme Court and the Betrayal Cruikshank Id. Id. United States v. Cruikshank, 92 U.S. 542 (1876). On the press reportage, see On March 27, 1876, the Supreme Court upheld Bradley’s ruling, ac- the Supreme Court upheld Bradley’s On March 27, 1876, 237 238 239 235 236 depart from Bradley’s reasoning on one important point, closing off an ave- depart from Bradley’s reasoning on one left open.nue for enforcement that Bradley had Court the time, first the For of Rights (here, the right to assemble held that rights guaranteed in the Bill were not among the privileges or im- peaceably and the right to bear arms) thus could not be reached by Congress munities of national citizenship and under the Fourteenth Amendment. action and racial motivation, he relied on Bradley’s reasoning.action and racial motivation, he relied The indict- the Equal Protection or Due Process ments could not be supported by “add[ed] nothing to the rights Clauses because the Fourteenth Amendment of one citizen as against another.” wrote for the Court. newspapers were denying the At a time when many Bradley in refraining supremacist terror, Waite followed existence of white underlying facts of the massacre. from reporting the to specify racial intent placed the indictments outside the reach of the Fif- to specify racial intent placed the indictments Protection Clause of the Fourteenth. teenth Amendment, as well as the Equal of the hostility,” observed Waite in “We may suspect that race was the cause “but it is not so averred.” what was surely an understatement, The Slaughter-House Cases ally in local political and economic power relations, as in as in relations, power economic and in local political ally Clause, but left open the possibility that it narrowed the scope of the Privileges or Immunities might encompass rights, like the rights to bear arms and to assemble peaceably, that were enumerated in the Constitution.plaintiffs had not claimed any right mentioned in The white the Bill of Rights, and Justice Miller’s opinion for the Court contained only the following sentence on the issue: “The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution.” 83 in- “cryptic,” could be read as implying that rights explicitly guaranteed in the Constitution, cluding the Bill of Rights, were rights of federal citizenship protected by the Fourteenth assemblies like the one in the one like assemblies 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 39 29-MAY-14 11:59 Republican Party assemblies and made possible the resubjugation of south- the resubjugation and made possible Party assemblies Republican ern labor. means of no deference on the choice of “appropriate” cording Congress the requirement landmark holdings on state action, enforcement and issuing the Fourteenth motivation, and the question whether of proving racial the Bill of Rights to the states. Amendment applied perhaps he realized that he had let Woods nudge him further than he wanted him further than had let Woods nudge realized that he perhaps he to go. the a hard line between the end result was his thoughts, Whatever and other rights right to vote 34923_hlc 49-2 Sheet No. 69 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 69 34923_hlc 34923_hlc 49-2 Sheet No. 69 Side B 06/09/2014 15:03:23 R R , 241 , ALTZ , 92 U.S of state 123 (1995) M. M and other Following EEP ARL 245 E note 20, at 1099. K Waite rejected E . 240 W in support supra on the ground that its 100 (2003); Wildenthal, The Bill of Rights and the Cruikshank OMPANY United States v. Reese C Cruikshank Slaughter-House 20. ONSTITUTION – Cooley v. Board of Wardens Cooley v. Board of C . to the United States,” then ipso to the United States,” AW AND THE , L AW OF THE Cruikshank Similarly, the duty to protect the “equality Similarly, the duty L OIFER , 53 U.S. at 318 1193, 1258 (1992); Wildenthal, S 243 surrendered L.J. VIAM , that Congress enjoyed a degree of discretion in , that Congress enjoyed a degree of A majority opinion’s strongly worded references to that purpose. majority opinion’s strongly worded references silently declined to apply the principle, announced silently declined to apply the principle, ALE Y could be distinguished from The Fourteenth Amendment empowered the national The Fourteenth Amendment empowered 51; – 244 Contra Cooley 24. 53 (emphasis added). Having ascertained that the powers to protect the right of that the powers to protect the right Having ascertained , 101 – – 246 MENDMENT AND THE 242 55. A – Cruikshank Slaughter-House 72, 81. Accordingly, members of Congress continued to believe that the clause – 92 U.S. at 549 Slaughter-House at 554 See 53 U.S. 299 (1824). 92 U.S. at 550. 92 U.S. at 552 Id. Id. The quotation is from Waite’s opinion for the Court in Finally, In a context of mass terrorism, Waite neglected to mention the value of the value mention to neglected Waite mass terrorism, of In a context OURTEENTH note 20, at 1116 240 241 242 243 244 245 246 F McCulloch v. Maryland HE Bradley, Waite did exempt the Fifteenth Amendment from this limitation on Bradley, Waite did exempt the Fifteenth constitutional right” that had never the ground that it established “a new the right to be free from race discrimi- been committed to the states, namely nation in voting. the view, famously asserted and applied in the view, famously of the rights of citizens” had been “originally assumed by the States; and it had been “originally assumed of the rights of citizens” still remains there.” (commenting that the “bloody proof that there was no law and no lawful government with (commenting that the “bloody proof that there enforcement power in Louisiana in 1873 was not relevant to the Court”). supra government only “to see that the States do not deny the right.” government only “to see that the States facto, they could not be among the “privileges or immunities” guaranteed not be among the “privileges or immunities” facto, they could by the Fourteenth Amendment. assembly and the right to bear arms had originally been committed to the right to bear arms had originally been assembly and the been states and had “never T selecting among possible means of implementing constitutional provisions. selecting among possible means of implementing loomed large both in congressional de- The word “appropriate,” which had not appear in Chief Justice Waite’s bates and in lower court opinions, did in 214, 218 (1876), issued the same day as Fourteenth Amendment Amendment. McDonald v. City of Chicago, 130 S. Ct. 3020, 3060 (2010) (Thomas, J., con- Akhil Reed Amar, curring in part and concurring in the judgment); Moreover, that national and state powers could overlap, with national power prevailing powers could overlap, with national that national and state conflict.of event the in conflict between” the To Waite, “there need be no one possesses, the because the “powers which two levels of government, other does not.” Rights after protected the rights enumerated in the Bill of 424 discourse a multipage to deliver choosing instead law enforcement, effective Review Rights-Civil Liberties Law Civil Harvard and state autonomy. national power tension between on the potential His [Vol. re- abstract theory, resolutely on the plane of remained entirely discussion 49 that, in well-known fact mentioning the fraining from \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 40 29-MAY-14 11:59 facts did not implicate the constitutional purpose to protect the former slaves, a distinction facts did not implicate the constitutional purpose invited by the 83 U.S. at 71 Enforcement Act cases, national power had been exerted power had been Act cases, national Enforcement interven- to national where the alternative under circumstances governments autonomy, but paramilitary insurrection. tion was not state 34923_hlc 49-2 Sheet No. 69 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 69 34923_hlc 34923_hlc 49-2 Sheet No. 70 Side A 06/09/2014 15:03:23 R R R R R 251 07, – 174 . 1943 Presi- , 392 U.S. L.J 248 NTEREST Katzenbach v. ALE , 521 U.S. 507 I notes 104 Y UBLIC , 112 supra P text accompanying notes beamed a “green light supra City of Boerne v. Flores Jones v. Alfred H. Mayer Co. EFENDER OF THE Cruikshank : D 60. Legislative Constitutionalism and Section Five – AITE W note 103 and accompanying text. USTICE Snubbed LandmarkSnubbed 425 J 250 supra HIEF Instead, Waite treated Congress’s enforcement pow- enforcement treated Congress’s Waite Instead, 56. On Woods and Bond, see – , C 247 RIMBLE text accompanying notes 59 Not until the 1960s would the Court concede to Congress a would the Court concede to Congress Not until the 1960s R. T 252 01, and accompanying text. – 92 U.S. at 554 249 40 (1968) (supporting deference in enforcing Thirteenth Amendment); RUCE – , 384 U.S. 641, 656 (1966) (supporting deference in enforcing Fourteenth Amend- See On Johnson’s view, see On the rise of deference and its constriction, see See supra B On the views of lower courts and members of Congress, see On the views of lower courts and members In the words of historian Eric Foner, Another theory of President Johnson’s also triumphed, this one concern- Johnson’s also triumphed, this Another theory of President 117. 17, 200 248 249 250 251 252 247 – – dent Andrew Johnson’s veto of the 1866 Civil Rights Act had been over- veto of the 1866 Civil Rights dent Andrew Johnson’s powers but his narrow view of the Reconstruction turned by Congress, prevailed. (1938). ers as if they were coterminous with the scope of the Amendments’ prohibi- Amendments’ of the with the scope coterminous if they were ers as tory clauses. and Judges Woods in contrast to Circuit Bradley, and Like whether it on the questions no deference Court accorded Congress Bond, the enforcement where state regulate private action “appropriate” to might be of intentional discrimination requiring proof or to refrain from had failed, ineffective. would render enforcement a requirement where such measure of discretion in enforcing the Amendments, and even that would in enforcing the Amendments, measure of discretion soon be sharply curtailed. (2003). 112 (1997) (limiting deference on Fourteenth Amendment); (1997) (limiting deference on Fourteenth Amendment); to acts of terror where local officials either could not or would not enforce to acts of terror where local officials ing the legitimacy of white resistance to black political participation.of white resistance to black political ing the legitimacy At his had advanced a “colored” delegation in 1866, Johnson meeting with the integrated electorate sovereignty according to which an theory of popular their consent. on the “people” of the South without could not be forced 409, 439 Morgan ment); and Robert C. Post & Reva B. Siegel, Power: Policentric Interpretation of the Family and Medical Leave Act 112 opinion for the Court. for the opinion Supreme Court ex- the circuit court nor Waite in the Neither Bradley in threat to state jurisdiction posed by the plained why they chose to ignore the their choices effectively implemented white supremacist insurrection, but of each southern state, whether in the Johnson’s theory that the white people a veto over black inclusion.majority or minority, rightfully held The Waite defended against federal en- “state” jurisdiction that Bradley and state governments constituted by the croachment was not that of the official Amendment, but that of the sovereign full citizenry defined in the Fourteenth and the paramilitary insurgents.people of the South defined by Johnson It that later commentators would praise was in this sense of the word “state” to protect the Negro by subjection of Waite for terminating the “radical plan the states.” 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 41 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 70 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 70 34923_hlc 34923_hlc 49-2 Sheet No. 70 Side B 06/09/2014 15:03:23 R R R R R R R R R R R , ., See AG . M IST RANDWEIN ). For addi- B 83. – Reese S.C. H Three months Three , , Sept. 5, 1876, at 2 Rifle clubs sys- 253 and 255 IMES note 49, at 162. After 1877, the struggle 34. As the planters had under- N.Y. T – , 259 note 81, at 166 note 123, at 130 (observing that note 175, at 170. Cruikshank “All Is Not Quiet in Our Hellish supra , supra supra supra , , , EVINE L ANG ABLE The Ellenton Riot of 1876 W ERMAN R note 190, at 133 P — 73; – supra note 265. 74. The Southern Elections 76. as the Bradley played a major role in these events , see also – 76, 581; – – 54. – ELZ infra B The Democrats accepted Hayes as President, and The Democrats accepted Hayes as note 72, at 174; Mark M. Smith, 258 see also note 72, at 172 note 81, at 171 note 81, at 175; note 6, at 175 By that time, however, the Democrats had established By that time, however, note 2, at 531; note 2, at 574 257 supra supra note 207, at 244 supra , , supra supra supra supra , Tellingly, the remaining areas of black voting strength were to Tellingly, the remaining areas of black , , , , As the election approached, Attorney General Alphonso Taft is- Attorney General Alphonso As the election approached, supra 260 During a subsequent series of paramilitary attacks in majority- of paramilitary a subsequent series During 256 OGUE ABLE ABLE EMANN EMANN ONER ONER R R F H The federal government did not abandon all efforts to enforce black rights, but those F L L 254 note 112, at 153; 256 257 258 259 260 253 254 255 after the ruling, on July 4, 1876, the Democrats brought their paramilitary brought their the Democrats 4, 1876, on July the ruling, after 60%. exceeded where the black majority South Carolina, strategy to Rifle an all- of Hamburg, defeated stronghold on the Republican clubs converged after the five prisoners militia, and murdered of the state black contingent battle. tematically disrupted Republican campaign meetings, rode through Republi- Republican campaign meetings, rode tematically disrupted of Republican guns, and openly called for the murder can towns shooting leaders. continued, but in a greatly altered landscape. African Americans had lost rights in most of the South most of the capacity to exercise and defend their the time. supra Apr. 1994, at 142. Hayes withdrew the federal troops guarding the Louisiana and South Caro- Hayes withdrew the federal troops guarding free to stage bloodless coups lina state houses, leaving the Democrats against the last two Reconstruction governments. dominance in too many localities.dominance in too a combination of terrorism and Using counts from every managed to prevail in the initial election fraud, they southern state. Louisi- state electoral boards in The Republican-controlled from their states, and Florida invalidated the returns ana, South Carolina, eventually result in the “Great Com- bringing on the controversy that would promise” of 1877. be found in states where African Americans composed a relatively small be found in states where African Americans sued a circular ordering U.S. Marshals to protect voters in “the free exercise U.S. Marshals to protect voters sued a circular ordering Grant committed and, on October 17, President of the elective franchise,” federal troops. black Barnwell County, white supremacists assassinated a black Republican a black supremacists assassinated County, white black Barnwell in full view of passengers on a train. state representative efforts were reduced to “the (intermittent) protection of black voting rights.” Whiteside, (reprinting text of Taft’s letter of instructions to U.S. Marshals). . (reprinting text of Taft’s letter of instructions pivotal member of the Electoral Commission that ruled on the disputed election returns. the stood, control over local and state government, not black voting in national elections, was key to restoring dominance over black laborers. federal enforcement declined in the immediate aftermath of federal enforcement declined in the immediate County”: Facts, Fiction, Politics and Race 426 South.” of the to most that applied a description the law, Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 42 29-MAY-14 11:59 tional citations on this point, see 34923_hlc 49-2 Sheet No. 70 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 70 34923_hlc 34923_hlc 49-2 Sheet No. 71 Side A 06/09/2014 15:03:23 R R R R R , 96 , 101 has Cruik- ROMISES UNNELL RESUMP- T P RESENT , P 326 (1923). P The Day That Cruikshank ECONSTRUCTION IEMAN R Cruikshank ISTORY Cruikshank 265 TO THE H OLITICS AND G. N LACK P , B BOUT , 1776 TATES OIS ONALD S A ACIAL D B RDER U : R O NITED note 6. U see also REEDOM W.E.B. D supra , F , did not, in fact, foreclose voting rights enforce- OURT AND ANE L ONSTITUTIONAL C (a voting rights case announced the same (a voting rights case See, e.g. 89 (1996); C Reinforcing Representation: Congressional Power to 262 HADES OF Reese OUNTERARGUMENTS ] reduced the Fourteenth Amendment and the Force Acts ., S C UPREME R Snubbed LandmarkSnubbed 427 As the Civil Rights Movement gained momen- As the Civil Rights ROCESS J S 91 (1935). – P 264 HE , T 33 and accompanying text. note Tennessee, Texas, 3, at 56 (listing Arkansas, North Carolina, EGAL – and other cases “still shock the researcher,” but ad- and other cases “still shock the researcher,” Cruikshank L , at 690 note 263, at 330. Only a few pioneers, most of them African Ameri- ] left blacks largely at the mercy of their white neighbors.”); supra MERICANS AND THE ARREN , IGGINBOTHAM 1880 -A W – supra To Warren, this result was “most fortunate” because it con- was “most fortunate” because To Warren, this result H , notes 332 MERICAN , fleshes out this view with a detailed and vivid narrative of the origins, resolu- 263 ONTROVERSY AND 261 . 2341, 2350 n.54, 2351 n.59 (2003).book, recent Lane’s Charles ALELLY EON United States v. Reese A Cruikshank 1860 FRICAN V EV HARLES Cruikshank TO TIONS IN THE ARREN C IN : A A. L See 92 U.S 214 (1876). 3 W and See infra note 171, at 193 (“[ note Largely ignored in the legal-professional literature, literature, in the legal-professional Largely ignored No sooner did this revisionist view coalesce, however, than it came No sooner did this revisionist view . L. R III. C EEP MERICA 265 261 262 263 264 K ICH A long been a subject of controversy among historians. a subject of controversy long been lead- Warren, Charles opined that Supreme Court in the early 1900s, ing historian of the shank day) rendered the Enforcement Acts “almost wholly ineffective to protect Enforcement Acts “almost wholly day) rendered the the negro.” (1991) (“[ As more recent scholarship has shown, tum, historians increasingly rejected Warren’s positive spin, with most com- rejected Warren’s positive tum, historians increasingly Jr. that Judge A. Leon Higginbotham ing to agree with amendments and fed- impact the recent constitutional “nullified the dramatic and conveyed to have on civil rights enforcement” eral laws were supposed groups . . . that they to hoodlums and other vigilante the “undiluted message ‘in their place.’”would be free to keep African Americans ment. supra signed “the burden and duty of protecting the negro to the States, to whom and duty of protecting the negro to signed “the burden they properly belonged.” Freedom Died tion, and aftermath of the case in context. under fire for oversimplifying a complex reality in ways that unfairly blamed under fire for oversimplifying a complex the Court. Les Benedict, the critics acknowledged that the Led by Michael results in M can, dissented from this view at the time. to meaningless verbiage as far as the civil rights of Negroes were concerned.”).numerous For additional citations, see Ellen D. Katz, Enforce the Fourteenth and Fifteenth Amendments in the Rehnquist and Waite Courts and Virginia as the states in which black turnout remained high and a relatively large propor- and Virginia as the states in which black turnout the candidates chosen). tion of black votes were actually counted for proportion of the population, and therefore posed little threat to white threat to little posed and therefore the population, of proportion supremacy. of the Court.vanced three claims in a qualified defense directed they First, judicial language indicating that, attention away from the results and toward and statutes would have been upheld: if properly crafted, future indictments fault with indictments and ruled Recon- “In fact, although the Justices found for excessive breadth, they made clear struction legislation unconstitutional 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 43 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 71 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 71 34923_hlc 34923_hlc 49-2 Sheet No. 71 Side B 06/09/2014 15:03:23 R R R R R R R , 67 Ex 268 – note Thus, on the , Sept. 5, supra 272 . decisions IMES — N.Y. T 88; Katz, , every single pros- every – Cruikshank , 110 U.S. 651, 657 in any case — When Attorney General Taft Washington v. Davis note 190, at 285 269 Ex Parte Yarbrough The Southern Elections supra Civil Rights Cases, Rights Cases, Civil , 32; – 9, 54. – 63, 74. – AIRMAN F ’s Constraints on Enforcement 87 (1879); and left open more possibilities for enforcement than left open more possibilities Finally, they argued that in light of widely ac- light of widely they argued that in Finally, – Instead of foreclosing future prosecutions, she Instead of foreclosing future prosecutions, Preserving Federalism: Reconstruction and the Waite Court Preserving Federalism: Reconstruction and on the ground that it did “not concern [f]ederal on the ground that it did “not concern 267 273 see also belied any judicial abandonment of black rights. belied any judicial note 112, at 8 note 112, at 98. note 112, at 93. made explicit in These possibilities were later note 112, at 130 Cruikshank note 266, at 62 supra supra supra supra Second, they contended that the demise of Reconstruction they contended that Second, , , , , . 39, 63; Cruikshank rulings left open “broad possibilities for the protection of rulings left open “broad possibilities 08. A. supra 266 – Cruikshank EV As for the Fourteenth Amendment, Brandwein shows that As for the Fourteenth Amendment, . R , 100 U.S. 371, 384 270 Cruikshank T at 107 at 3. . C RANDWEIN RANDWEIN RANDWEIN RANDWEIN Less persuasively (if the argument below holds true), she contends Less persuasively (if the argument Michael Les Benedict, B Benedict, B B B Id. Id. UP How serious were the legal constraints imposed by How serious were S 271 Cruikshank 266 267 268 269 270 271 272 273 the black physical safety.” ordered voting rights enforcement at election time in 1876, for example, he ordered voting rights enforcement at distinguished elections.” cepted nineteenth-century ideas about federalism, “what is remarkable is the “what is remarkable about federalism, ideas cepted nineteenth-century rights rather to protect national authority which the Court sustained degree to which they restricted it,” and than the degree to following was brought about by factors other than judicial decisions, for example, the decisions, for example, other than judicial about by factors was brought panic of 1873. financial Bradley required only “state neglect,” not state action, to establish a viola- Bradley required only “state neglect,” tion. that Bradley chose a “lower evidentiary threshold” for proving racial intent that Bradley chose a “lower evidentiary Court in than was eventually adopted by the (1884). 265, at 2348. Parte Siebold 1876, at 2. This Part discusses each of these claims in order. This Part discusses 428of the of a few the exception that with Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 44 29-MAY-14 11:59 1978 ecution brought before them could have been sustained by an appropriate by been sustained have them could before brought ecution national law.” enforcement effort? their greatest contributions. Here, the critics make They show that the right to vote. acknowledged, especially concerning the revisionists had from any his way to exempt the Fifteenth Amendment Bradley went out of Court did not disturb that conclusion. state action requirement, and the full of proving racial intent, but they left Both rulings did impose a requirement cases involving federal elections by open the possibility of avoiding it in inherent power to protect its own relying upon the national government’s 4. election process under Article I, Section 34923_hlc 49-2 Sheet No. 71 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 71 34923_hlc 34923_hlc 49-2 Sheet No. 72 Side A 06/09/2014 15:03:23 R R not (Octo- 09. – 275 277 ,” as required by 274 District Judge Ar- precisely the areas 276 including Judge Kre- note 112, at 108 — — in any prosecution arising supra , United States v. Blackburn United States Blackburn RANDWEIN B Snubbed LandmarkSnubbed 429 ’simpact. legal instructions Far from offering “clear rulings merely required prosecutors to follow Brad- to follow prosecutors required merely rulings because of the victims being colored note 112, at 108. responded by imposing requirements that prosecutors responded by imposing requirements — supra itself. held that section 6 of the Enforce- Further, Bradley To the contrary, they had indicted numerous defendants, To the contrary, they had indicted , , 24 F. Cas. at 1158, 1159; , 24 F. Cas. at 1159. 278 Cruikshank Cruikshank itself, for example, state officers most emphatically had itself, for example, state officers at 106. RANDWEIN Blackburn Id. 24 F. Cas. 1158 (W.D. Mo. 1874) (No. 14,603). B Blackburn Blackburn Cruikshank 1. Proof of State Neglect. constitute sufficient proof of state Bradley failed to specify what might Brandwein’s book makes numerous important contributions, many of makes numerous important contributions, Brandwein’s book As an example, Brandwein offers Brandwein As an example, 274 275 276 277 278 ber 1874), in whichin 1874), ber properly, imple- the indictment prosecutor “drew the with a and was rewarded by Justice Bradley,” rules laid down menting the of actors for violations the conviction of private permitting jury instruction with the black citizens namely assaulting protection guarantee, the equal them from obtaining an education. goal of preventing nold Krekel directed the jurors that they could convict if the defendants had the jurors that they could convict nold Krekel directed racial intent require- “because they were colored” (the attacked their victims failed to employ the “officers of the law” had “willfully ment), and if the offenders, because law to ferret out and bring to trial the means provided by colored” (the state neglect requirement). of the victims being calling off the prosecution only after the state attorney was threatened by an calling off the prosecution only after the state attorney was threatened by targeted by white supremacist paramilitaries after Bradley’s ruling.targeted by white supremacist paramilitaries In Cruikshank could not satisfy in the overwhelming majority of terrorism cases, among could not satisfy in the overwhelming them ment Act was unconstitutional, raising the possibility that no prosecutions ment Act was unconstitutional, raising overturned that holding or Congress could be brought until the full Court amended the Act. all of Bradley’s Two years later, the full Court affirmed of uncertainty about section 6. requirements, removing only the obstacle imposing onerous requirements.neglect, and judges filled the gap by It is prosecutors could have satisfied the extremely unlikely, for example, that standard specified by Judge Krekel in or locality out of a Republican-controlled state which are indispensable to the present Article.which are indispensable Here, however, she seriously understates “willfully failed to employ the means provided by law to ferret out and bring “willfully failed to employ the means to trial the offenders, Judge Krekel. claims, the claims, kel in 2014] open a wide range of indictments,” Bradley’s opinion left for drawing future intent.for proving state neglect and racial possible standards Unfortunately allies, judges for black southerners and their white \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 45 29-MAY-14 11:59 ley’s “clear instructions for drawing future indictments.” future for drawing “clear instructions ley’s 34923_hlc 49-2 Sheet No. 72 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 72 34923_hlc 34923_hlc 49-2 Sheet No. 72 Side B 06/09/2014 15:03:23 R R R , see Blackburn the State laws concerning Enforce- , Oct. 14, 1874, at 2. . As in which, at the time at the which, M 283 — & A , denies to some persons Id. make any distinction in the NION Mobile Register U , Oct. 28, 1874, at 4 (emphasis added); 79 (listing major confrontations). – ASHVILLE N ’s version of state neglect did not allow ’s version of state , DVANCE 43. A , Oct. 24, 1874, at 1. – This text excluded law enforcement, as op- This text excluded law enforcement, Once the Democrats had “redeemed” a state Once the Democrats IMES T RANGE 284 Blackburn 281 G , the problem was not official hostility toward Afri- hostility toward was not official the problem , N.Y. — note 112, at 110. give the same protection to all, there is no ground for give the same protection to all, there note 6, at 142 As she points out, this language appears to indicate the As she points out, this language appears in its law or its judicial tribunals supra 282 Not coincidentally, virtually all of the major paramilitary all of the major virtually Not coincidentally, , supra , the problem lay precisely in failures of law enforcement, not , the problem lay precisely in failures In Republican-controlled jurisdictions jurisdictions In Republican-controlled Strides Toward Despotism the State laws nor the State courts text accompanying notes 178 , 280 , 279 ANE L RANDWEIN See, e.g. See supra B Id. The Enforcement Laws See Brandwein also points to a grand jury charge issued by Judge Bland to a grand jury charge issued Brandwein also points Cruikshank 280 281 282 283 284 279 and the State courts congressional legislation.” within its jurisdiction protection it accords to others,” and concluded: “But within its jurisdiction protection it accords where neither of a State, when protection which they give the inhabitants however, the Judge’s version of state neglect effectively insulated the most however, the Judge’s version of state important terrorist attacks against prosecution. Here, the text immediately limited federal power to cases preceding and following the quoted language in which “a State, posed to legislation or judicial proceedings, from the scope of state action or posed to legislation or judicial proceedings, neglect. all of the Enforcement Act terrorism cases, includ- And in virtually ing and staffed its militia with white supremacists, they had little need for unof- with white supremacists, they had and staffed its militia ficial terrorism. In short, important areas of of paramilitaries in the most for the prosecution contention. of Kentucky in October of 1874.Ballard of the District She quotes Ballard inhabitants of a state government intervention to give the approving federal to which the State that is, to afford to those inhabitants “equal protection; those whom it pro- the same protection it gives to gives the least protection tects the most.” “court’s acceptance of the concept of state neglect.” “court’s acceptance of the concept battles and so-called “riots” consisted of white supremacist attacks on Re- “riots” consisted of white supremacist battles and so-called areas. publican-controlled of Bradley’s ruling, included Alabama, Arkansas, Florida, and the three and the Florida, Arkansas, Alabama, ruling, included of Bradley’s states black-majority law en- of state and local disruption but white supremacist can Americans, forcement. the fact of official crowed, Democratic newspapers As inference of discriminatory to negate any incumbency appeared Republican state neglect. also The Kentucky KuKlux This newspaper cited Bradley’s ruling for the proposition that section 6 of the Enforcement Act This newspaper cited Bradley’s ruling for the quoted the was “not supported by the Constitution,” and ment Act prosecutions in Alabama: “The county in which these murders were committed lies ment Act prosecutions in Alabama: “The county . . and who was himself a Federal officer; in a in a State whose Governor is a Republican . population where the juries may be composed of negroes, and where the processes of courts have never been interfered with. of Alabama and the county of Sumter are able, The State willing, and ready to investigate and punish these murders.” 430 mob. armed Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 46 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 72 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 72 34923_hlc 34923_hlc 49-2 Sheet No. 73 Side A 06/09/2014 15:03:23 Id. the Sim- , he in- 287 motiva- — Krekel also stated that the Id. purpose of depriving colored the He elaborated that direct proof was on account of” race. United States v. Butler Id. or even predominant Even without Ballard’s ruling, it Ballard’s without Even solely — 285 at 715 (Equal Protection Clause of the Four- section I.C). id. supra without regard to his political belief or without regard to his political belief affected prosecutions under all three Recon- affected prosecutions section I.C); United States v. Crosby, 25 F. Cas. 701, 704 section I.C); United States v. Crosby, 25 F. Cas. Snubbed LandmarkSnubbed 431 — Civil Rights Act, 30 F. Cas. 1005, 1007 (C.C.W.D. Tenn. Civil Rights Act, 30 F. Cas. 1005, 1007 (C.C.W.D. Circuit Judge Halmer Emmons read Bradley to Circuit Judge Halmer — supra (emphasis added). Note that although this formulation allowed 286 Id. Chief Justice Waite, riding circuit in 1877, endorsed Chief Justice Waite, section III.A.2); United States v. Hall, 26 F. Cas. 79 (C.C.S.D. Ala. section III.A.2); United States v. Hall, 26 F. at 713 (Fifteenth Amendment). 288 id. infra , 24 F. Cas. at 1159 (emphasis added).the Krekel, Judge by described As 289 , United States v. Blackburn, 24 F. Cas. 1158, 1158 (W.D. Mo. 1874) (No. , United States v. Blackburn, 24 F. Cas. 1158, .” object in the conspiracy was against the persons named in the in- was against the persons named object in the conspiracy 25 F. Cas. 213, 224 (Waite, Circuit Justice, C.C.D.S.C. 1877) (No. 14,700) (emphasis See, e.g. 712 (Bradley, Circuit Justice, C.C.D. La. United States v. Cruikshank, 25 F. Cas. 707, Charge to Grand Jury Blackburn the was their membership in the class of “colored citizens.” was their membership in the class of “colored 2. Proof of Racial Intent. to establish that to specify what proof would suffice Bradley also failed Read to require that race be the sole 289 285 286 287 288 according to his ruling according to his ruling — ilarly but less clearly, District Judge Krekel specified that the jury must find District Judge Krekel specified that ilarly but less clearly, “that of their being one or more of them, as a class, and because dictment, or some colored citizens.” would have been extremely difficult to prove racial discrimination in the discrimination prove racial to difficult extremely have been would impossible (almost certainly law enforcement area of highly discretionary purported to but the ruling were Republicans), relevant officials when the of trying. even the possibility eliminate a requirement that “on account of” their victims’ race, defendants had acted struction Amendments. require proof that the perpetrators acted “ require proof that the Emmons’s view in no uncertain terms.Emmons’s view in In white paramilitaries charged with structed the jurors that in order to convict with his Fifteenth Amendment killing a black man and thereby interfering of the defendants in their unlawful rights, they must find “that the object right and privilege of voting on ac- combination was to interfere with his count of his race or color, association tion, Bradley’s standard posed a serious if not fatal problem for prosecutors. tion, Bradley’s standard posed a serious not required, and that the necessary intent could be established using a wide range of evidence including acts “such as entering the houses of colored persons only, while on their nightly, illegal, and criminal errands; talk such as, ‘We will give you a touch of the civil rights bill’; less [and] notices such as indicate hostility to colored schools,” all of which would “more or tend to lead you to proper conclusion in reference to their object, design and intention.” perpetrators must have acted “with the intent to solely affect the colored persons named in the perpetrators must have acted “with the intent indictment, as a class, and on account of their color.” 14,603) (discussed 1871) (No. 15,282) (discussed teenth Amendment); 1875) (No. 18,260) (emphasis added). laws, and of equal privileges and immunities, to citizens, as a class, of equal protection of the which they are entitled.” of the purpose, the sole criterion for selecting for the deprivation of certain rights to be part victims added). 1874) (No. 14,897) (Thirteenth Amendment); 1874) (No. 14,897) (Thirteenth Amendment); together, for “offenses charged consist in the conspiring in state legislation or court proceedings. or court legislation in state 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 47 29-MAY-14 11:59 (C.C.S.C. 1871) (No. 14,893) (discussed 34923_hlc 49-2 Sheet No. 73 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 73 34923_hlc 34923_hlc 49-2 Sheet No. 73 Side B 06/09/2014 15:03:23 R R R R R R 292 at 137, Under id. note 77, at 290 , evidence of supra 06. a traveling sales- – , — 96. – RELEASE T Cruikshank note 6, at 105 text accompanying note 83. supra 294 note 6, at 94 , 04. On Democrats’ efforts to recruit black , Apr. 3, 1875, at 2. – ANE L supra Likewise in IMES , (Section 6 criminalized conspiracies to (Section 6 criminalized conspiracies 70. 291 90, 303 – ANE – 295 see also supra L N.Y. T , 8; – No doubt the standard could have been satisfied No doubt the standard 293 note 81, at 169 note 140, at 133. slipped away. — note 175, at 7 supra , supra , supra The Enforcement Acts ABLE , R 02, 252, 262, 269, 277, 287, 289 AGRATH OGUE – On the evidence of racial hostility, see the black defenders excused two of After the Democrats issued their final ultimatum, H Apparently, even Bradley himself was confused about this issue. At oral argument On the targeting of white Republicans, see, for example, On the targeting of white Republicans, see, for M 3. The Constitutionality of Section 6. most of which was set Bradley’s extensive constitutional reasoning, 76; and 292 293 294 295 290 291 – these circumstances, prosecutors would have found it difficult, if not impos- it difficult, if would have found prosecutors these circumstances, of Democratic race outweighed politics in the minds sible, to prove that paramilitaries.L.C. Northrop of South Carolina No wonder U.S. Attorney violence, there is no the “red shirts break up meetings by complained that if account of race &c, be proved to have been done on remedy, unless it can proved . . . .” which cant [sic] be interfere with “any citizen” in the exercise of “any right or privilege granted interfere with “any citizen” in the exercise or laws of the United States,” and thus or secured to him by the Constitution racial hostility abounded, but the perpetrators had mobilized for a political but the perpetrators had mobilized racial hostility abounded, Colfax Courthouse. counter the Republicans’ seizure of reason, namely to in some cases, for example where roaming riders singled out random black example where roaming riders singled in some cases, for leaders and members terrorists generally targeted the victims, but organized and other organizations that sustained of the various political, paramilitary, independent black and Republican politics. apart from his analysis of the indictments, could have been read either (1) to apart from his analysis of the indictments, it failed to specify requirements of invalidate section 6 altogether because or (2) to narrow the scope of section 6 race discrimination and state neglect, by reading in those requirements. the three whites, perhaps in consideration of their advanced age; the third the three whites, perhaps in consideration of their before the full Court, he hypothesized a law that criminalized some activity within and some is beyond the power of Congress, and asked whether “when a law is so framed that one part constitutional and the other unconstitutional, and the two are so blended as to be inseparable, can you hold one part constitutional and the other part unconstitutional?”General Attorney are Williams replied that “the law could be enforced as to those offenses which it is admitted by within the legitimate power of Congress to provide for,” the approach eventually adopted the full Court. man from New York 175 149, 201 At the time they decided to attack, moreover, the defending force included to attack, moreover, the defending At the time they decided three white Republicans. 432 as of politics on account victims their selected supremacists white Organized well as race.leaders, and activists. rallies, They targeted Republican Review Rights-Civil Liberties Law Civil Harvard Al- also white Republicans more, numerous Republicans suffered though black [Vol. faced violence.49 experienced consider- blacks And although non-Republican out black singled Democratic paramilitaries brutality, able day-to-day black Democrats. their friendship with while touting Republicans \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 48 29-MAY-14 11:59 support and grant of “protection papers” to black Democrats, see, for example, support and grant of “protection papers” to 34923_hlc 49-2 Sheet No. 73 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 73 34923_hlc 34923_hlc 49-2 Sheet No. 74 Side A 06/09/2014 15:03:23 R R 53, – The 301 gave little — ) second The 296 On the other hand, 299 Although the quoted pas- Although the quoted text accompanying notes 148 298 but Bradley appeared to adopt but Bradley supra 297 ignoring the purpose of the Recon- at 715 (Equal Protection Clause of the Four- — id. including, arguably, the intent and state intent the arguably, including, at 715. — Id. Snubbed LandmarkSnubbed 433 into the definition of the offense. of the definition into — 300 ’s requirements, but the first required congressional action to cor- required congressional but the first ’s requirements, at 712 (Thirteenth Amendment); at 712. The Court framed the issue as whether “the right, the enjoyment of which the conspira- The Court framed the issue as whether “the right, 715 (Bradley, Circuit Justice, C.C.D. La. United States v. Cruikshank, 25 F. Cas. 707, Id. Id. On these elements of Bradley’s approach, see Enforcement Act of 1870, ch. 114, § 6, 16 Stat. 141. Not only was Bradley’s opinion thus riddled with ambiguities, but, as Not only was Bradley’s opinion thus 297 298 299 300 301 296 onerous requirements imposed by Judges Krekel, Ballard, Emmons, and onerous requirements imposed by not compelled by the letter of Brad- Chief Justice Waite (riding circuit) were its spirit. ley’s opinion, but they certainly reflected reading left open the possibility for prosecutors to craft indictments meeting to craft indictments for prosecutors open the possibility reading left Cruikshank in the statute. flaws rect the constitutional Supreme full the later, years Two approach, choose the second Court would Bradley repeatedly objected to deficiencies in the framing of the indictment, objected to deficiencies in the framing Bradley repeatedly and leaving could be corrected in a subsequent indictment implying that they was “not supported out how to do so when section 6 prosecutors to puzzle by the constitution.” sage referred only to the Fifteenth Amendment, the same logic applied to the to the Fifteenth Amendment, the same sage referred only the Equal Protection by the Thirteenth Amendment and counts supported to Bradley, likewise Amendment, which, according Clause of the Fourteenth taken “on account of” race. reached only actions the first at the end of his opinion.the first at “The fifteenth amendment relates only to condition of servi- account of race, color and previous discriminations on of discrimination” section 6 “is not confined to cases tude,” he wrote, but by the constitution.” and thus “is not supported reason for hope that they would be resolved in favor of enforcement. reason for hope that they would be resolved struction Amendments, elevating technicalities over practical considerations, struction Amendments, elevating technicalities the choice of “appropriate” means, and according Congress no deference in preserving law and order failing even to consider the value of teenth Amendment).intent element required by all three Amendments, If section 6 lacked the then it would seem that it was “not supported by the constitution” as to prosecutions brought under all three, not just the Fifteenth. shown above, his general approach tors intended to hinder or prevent, was one granted or secured by the constitution or laws of tors intended to hinder or prevent, was one granted the United States. If it does not so appear, the criminal matter charged has not been made indictable by any act of Congress.”U.S. 542, 549 (1876). United States v. Cruikshank, 92 1874) (No. 14,897). 158. neglect requirements requirements neglect incorporated constitutional law constitutional incorporated 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 49 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 74 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 74 34923_hlc 34923_hlc 49-2 Sheet No. 74 Side B 06/09/2014 15:03:23 R R R R R R , 303 ON- OSING , C UESTION : L note 123. Q remained ALHOUN — supra UFFRAGE , S W. C OUTHERN ANG W S LACK B HARLES It is possible that these C 304 8; note 3; – have focused on four ques- have focused 302 supra , ARTY AND THE rulings contribute causally to the causally rulings contribute P ALELLY ECONSTRUCTION AND note 112, at 7 V By contrast, Bradley’s ruling exerted an By contrast, Bradley’s ruling exerted 9, 54. , R – supra 305 EPUBLICAN , Cruikshank Cruikshank (2001); R OLDMAN HE note 3, at 95 (reporting figures for Texas as 3944 in 1872, 4271 : T RANDWEIN M. G note 112, at 8 B supra Cruikshank , note 82, at 190 (reporting the total number of troops in the states of See ’s Causal Contribution to the Demise of Reconstruction of to the Demise Contribution ’s Causal OBERT supra EPUBLIC note 123, at 300. R , and supra R , ALELLY supra V EW , Reese the most visible and expensive source of contention the most visible and expensive source N THE ANG RANDWEIN WINNEY — Cruikshank W B S Pamela Brandwein has provided the most complete and focused account, and thus re- Pamela Brandwein has provided the most complete OTE IN 1900 (2006); 1. Effort. Bradley’s Ruling on the Enforcement Impact of his ruling on June 27, 1874.Bradley announced The number of en- To what extent did the To what – 303 304 305 302 V B. developments contributed to the magnitude of the decline.developments contributed to the magnitude Resource con- constant problem after 1872, when the straints, however, posed a relatively to a halt.first wave of terrorism was brought the in levels troop Federal South stable from 1873 through 1875. tions: (1) How seriously did Bradley’s ruling damage the enforcement effort? the enforcement Bradley’s ruling damage How seriously did tions: (1) of white terrorism? the second wave ruling trigger (2) Did Bradley’s (3) If way, what come out the other the full Court had ruling and that of Bradley’s would have changed? leave open opportunities for (4) Did the full Court government to pre- sufficient to enable the federal voting rights enforcement of black political participation? serve the possibility in 1873 to 890 in in the South dropped from 1148 forcement cases resolved 216 and 108 in 1875 and 1876.1874, and thence to More importantly, the (40%) in 1873 to 97 of convictions fell from 466 number (and percentage) in 1875 and 1876. thence to 16 (7%) and 2 (2%) (11%) in 1874, and immediate, direct, and observable effect. As recounted above, prosecutors ceased or cut back sharply on enforce- and judges across the South abruptly 1869 ceives most of the attention here.attention the of most ceives “the new political In turn, she relies partly on what she calls W. Calhoun, Richard M. Valelly, Xi Wang, and history,” which consists of works by Charles Robert M. Goldman. CEIVING A of The present Article also relies heavily on some of those works, including especially those Valelly and Wang. and the former Confederacy other than Texas as 3524 in 1873, 3443 in 1874, 3661 in 1875, 3082 in 1876); in 1874, and 3042 in 1876). Brandwein suggests that the decline of enforcement resulted largely from the Brandwein suggests that the decline of triggered discontent with Republi- financial panic of September 1873, which to win control of the House in the can leadership and enabled the Democrats elections.midterm 1874 The panic thus “constricted government spending risky.” and made spending in the South politically 434 Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 50 29-MAY-14 11:59 demise of Reconstruction? scholars To date, 34923_hlc 49-2 Sheet No. 74 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 74 34923_hlc 34923_hlc 49-2 Sheet No. 75 Side A 06/09/2014 15:03:23 R R R R R R R R R , 309 As note trial. 311 In the see supra supra , 308 Cruikshank ICHARDSON R note 81, at 133; text accompanying notes 169, Social Norms and Social Roles supra , supra No doubt it contributed; with No doubt it contributed; ABLE note 6, at 217; 307 R 86. 81. – – supra , 28, 198; ANE – L 26; – Snubbed LandmarkSnubbed 435 note 112, at 112. could have done to change the outcome.sociolo- The 312 — 306 note 6, at 124, 126 note 6, at 124 supra 903, 912 (1996). A social norm, for example of obedience to official law, 79, and accompanying text. , . – text accompanying notes 179 text accompanying notes 182 EV supra supra , , The timing of these ejections bears out the perception of con- The timing of these ejections bears 08. Upholding the Convictions. Offensive. 73, 176 310 . L. R – – OGUE OGUE RANDWEIN B On the theory of tipping points, see Cass R. Sunstein, H H For quotations from contemporary observers, see See supra See supra 3. Counterfactual: Likely Results of Bradley and the Full Court was very little that the Justices In some accounts, it appears that there 2. the Second Terrorist Ruling in Triggering Role of Bradley’s trig- not Bradley’s ruling, the panic of 1873, also argues that Brandwein OLUM 307 308 309 310 311 312 306 or anyone else C — recounted above, it was not long before Democratic paramilitaries, embold- recounted above, it was not long before the offensive to other Republican- ened by their Louisiana victories, spread “redemption” of Alabama in 1874 and controlled states, contributing to the Mississippi in 1875. Their newspapers called openly for the creation of paramilitary units to re- called openly for the creation of paramilitary Their newspapers law and order held. from office, but the norm of move Republican officials spring of 1874, white supremacists closely monitored the supremacists closely monitored spring of 1874, white the Republicans on the political defensive, the Democrats likely perceived the political defensive, the Democrats the Republicans on energetic federal response.less danger of an how- suggests, evidence The point. ruling precipitated a decisive tipping ever, that Bradley’s temporary observers that Bradley had triggered the surge in terror. temporary observers that Bradley had gist William Graham Sumner, for example, depicted antiracist “stateways” gist William Graham Sumner, for example, and concluded that “stateways cannot as in conflict with racist “folkways” gered the resurgence of terrorism in 1874. gered the resurgence 96 may come under pressure yet retain its hold on the overwhelming majority of people until may come under pressure yet retain its hold or enforceability, leading to a cascade of some event undermines its perceived legitimacy defections over a short period of time. 48, at 107 notes 169 171, 189. ment, explaining their actions in terms of legal difficulties flowing from flowing difficulties of legal in terms actions their explaining ment, opinion. Bradley’s ruling abruptly after the financial panic, Bradley’s On June 27, nine months upset the equilibrium. heralded the end of enforce- Democratic newspapers Louisiana, lead- blaze” of paramilitary activity swept ment, and a “wildfire fewer than twelve of Republican officials from no ing to the ouster parishes. 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 51 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 75 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 75 34923_hlc 34923_hlc 49-2 Sheet No. 75 Side B 06/09/2014 15:03:23 R R R R R R R R R 321 320 at 77. supra , , note 87, at supra , ILLIAMS When these W supra 318 47, 201, 204, 307, There was no There was , – 88 (1955) (quoting UMNER 315 S ROW ILLIAMS C W 24. RAHAM IM – J G 37; note 77, at 404; – note 77, at 146 Terrorism thrived on de facto Terrorism thrived 97, 123 ILLIAM – supra , 317 , it must be remembered that the , it must be remembered W AREER OF supra 20, 236 , – C 68, 90 316 – RELEASE the convictions. What would have hap- T RELEASE 48, 219 TRANGE T – (1907)). To Sumner, the demise of Reconstruction 32; S 56. Cruikshank – – HE , T , and funded lavish legal defenses. upholding OLKWAYS , F Justice Oliver Wendell Holmes similarly complained similarly Holmes Wendell Oliver Justice note 308. note 77, at 146 note 6, at 55 OODWARD note 82, at 266; note 82, at 231 313 Reacting privately to the passage of the Civil Rights Act of the Civil privately to the passage Reacting en masse UMNER W note 2, at 295. note 6, at 253. supra 314 S supra Even modest enforcement successes could have tipped the Even modest enforcement successes supra supra supra text accompanying notes 66 , , ANN , , 319 supra supra , in particular, would likely have had a major impact both be- , in particular, would likely have had , ANE , C. V L RAHAM AHN ANE WINNEY WINNEY G RELEASE , Sunstein, Giles v. Harris, 189 U.S. 475, 488 (1903). L See supra H S S T See See In assessing the impact of In assessing the impact 314 315 316 317 318 319 320 321 313 94. that allegiance to competing norms Chaos theory, applied to social norms, suggests – ILLIAM tactics failed, white solidarity often cracked as leaders fled, most rank-and- tactics failed, white solidarity often sacred oaths of silence to inform on filers lay low, and some violated their compatriots. need, however, to eradicate racism by legal enactment. to eradicate need, however, Official law enforc- basic norms of task of inducing whites to respect ers faced the less daunting criminal law. and order, black southerners were Given a modicum of law their own rights. capable of defending immunity from official punishment; secret society members and sympathiz- punishment; secret society members immunity from official and officials, from arrest, intimidated witnesses ers sheltered perpetrators swore false alibis W that because the “great mass of the white population” in Alabama was deter- was in Alabama population” white mass of the “great the that because Supreme was nothing the from voting, there prevent black people mined to do. Court could of 1875, Justice Bradley himself likewise opined that the “antipathy of race that the “antipathy likewise opined Justice Bradley himself of 1875, enactment.” by legal crushed and annihilated cannot be balance against white solidarity and in favor of official law and order. balance against white solidarity and was “the proof that legislation cannot make mores.” alternative to invalidating the convictions was not an absence of judicial the convictions was not an alternative to invalidating action action, but judicial had chosen that and, later, the full Supreme Court pened if Justice Bradley course? could have shone a “red or On the Democratic side, the convictions face of paramilitarism.” yellow light in the 386. note 87, at 47. 93 may shift rapidly as the defections from a declining norm reach a decisive “tipping point.” See, e.g. Cruikshank it was one of the rare enforcement cases cause of its high profile and because planter had been brought to justice. in which a leading white supremacist would have tested the commitment of A decision upholding the convictions white supremacist cadres. These were people who, during the first terrorist behind masks and darkness.offensive, had cloaked their activities Now, acknowledged paramilitary units and they were called upon to join publicly on a scale that could not be hid- engage in daylight campaigns of violence 436 folkways.” change Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 52 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 75 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 75 34923_hlc 34923_hlc 49-2 Sheet No. 76 Side A 06/09/2014 15:03:23 R R R R R R supra 326 , ABLE R Early decisions 324 Justice Swayne in Justice Swayne 325 note 175, at 170; Frank Leslie’s Illustrated Weekly supra , might have followed. of Instead had shown the way, making it had shown the way, The Democrats had gone far to- 327 ERMAN Hall Hall P ran on its cover a full-page engraving and Snubbed LandmarkSnubbed 437 95 (reprinting engraving). – Rhodes note 175, at 7 (observing that “[u]nlike vigilante action, little about 175, at 7 (observing note note 3, at 115. note 123, at 116 (quoting onetime radical Joseph R. Hawley and report- note 6, at 94 supra , supra , supra supra at 73. , , OGUE H at 99. ANG EITH ALELLY and Circuit Judge Woods in and Circuit Judge Having held back pending Bradley’s ruling, it seems improbable that improbable it seems ruling, Bradley’s pending held back Having perhaps a reverse ruling would have accomplished the opposite, af- ruling would have accomplished the perhaps a reverse See V Id. See id. K W On the Republican side, a ruling upholding the convictions would have side, a ruling upholding the convictions On the Republican By the time of the full Court’s decision in 1876, the terrorist offensive By the time of the full Court’s decision 323 322 322 323 324 325 326 327 could either reinforce or disrupt the efforts of the Republicans’ biracial coali- or disrupt the efforts of the Republicans’ could either reinforce black political participation. tion to institutionalize the first round of terrorism.possible for the coalition to suppress But Brad- abrupt halt.ley’s ruling brought the process to an Had he upheld the convic- tions, more decisions like in the field and at the bar of justice, symbolizing White League invincibility have reverberated as an inspiring act the battle of Colfax Courthouse could terrorism.of black resistance against criminal Illustrating this possibility, Frank Leslie’s Illustrated Newspaper holding off the redeemer horde. of determined black fighters valiantly Rhodes they would have greeted an adverse judgment by courting prosecution.courting by judgment an adverse greeted would have they In- now be them pause would had hitherto given considerations stead, whatever issued after Justice, apparently a Supreme Court by the ruling of augmented vio- of paramilitary affirming the criminality with his brethren, consultation effort. enforcement validating the federal lence and actual Bradley’s Where solu- Democrats’ one-party favor of the militant the balance in ruling tipped tion, firming the moderate Democrats’ strategy of competing with the Democrats’ strategy of competing firming the moderate and economic relatively peaceful forms of political Republicans using power. to terrorism. and federal officials in their resistance vindicated Republicans the fate of Recon- scientist Richard M. Valelly, As explained by political on “jurisprudence-building.” struction hinged importantly unleashed by Bradley’s ruling had already inflicted grievous damage on unleashed by Bradley’s ruling had Party had won control of the House black organization, and the Democratic of Representatives. debates over a new enforcement bill in 1875, a During William Graham Sumner and Oliver number of Republicans had prefigured of black rights hopeless barring a Wendell Holmes in adjudging the cause of the South . . . that will “social, and educational, and moral reconstruction never come from any legislative halls.” paramilitary action was covert,” that “[p]aramilitary leaders were invariably well-known lo- paramilitary action was covert,” that “[p]aramilitary known in public,” and that “they usually sought cal leaders” whose “identities were generally rather than shunned exposure in local media”); note 81, at 132. was one of the United States’ leading weeklies. ing that a “distinctive feature of the Republican opposition” to enforcement legislation in 1875 “was the growing tendency to interpret southern schemes against black suffrage as a social den. 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 53 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 76 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 76 34923_hlc 34923_hlc 49-2 Sheet No. 76 Side B 06/09/2014 15:03:23 R R NFLUENCED I note 140, at AS note 175, at 28. H In June 1874, supra Nevertheless, a Nevertheless, , 145 (2009). Accord- 329 supra , 328 PINION O OGUE AGRATH H M UBLIC ONSTITUTION P C OW : H Nevertheless, it did deliver to the one that nullified a statute enacted 330 — EOPLE P EANING OF THE was generally positive or mildly critical, with only a M rulings exert a countermajoritarian influence? rulings exert a countermajoritarian ILL OF THE W HE HAPED THE Cruikshank 279, 287 (1957). S , T Decision-Making in a Democracy: The Supreme Court as a National . L. UB Cruikshank J. P RIEDMAN OURT AND F C , 6 THE ARRY I am indebted to Richard Valelly for suggesting this formulation.I am indebted to Richard Valelly for suggesting On the relation be- Robert A. Dahl, B Did the UPREME 30. 328 329 330 S – within the previous four years, “where the presumption is, that is to say, that within the previous four years, “where a dead one.” the lawmaking majority is not necessarily when Bradley ruled, the Republicans had already been weakened by the fi- when Bradley ruled, the Republicans to control both Houses of Congress and nancial panic of 1873, but continued Presidency.the at a time when Bradley thus derailed the enforcement effort accomplishing that result through the the Democrats could only dream of political process. decision, on the other hand, fell outside The full Court’s measure.Dahl’s time, most white Americans, Republicans as well as By this Democrats, had tired of Reconstruction. Bradley’s circuit court ruling was, under political scientist Robert Dahl’s cri- Bradley’s circuit court ruling was, under terion, a countermajoritarian decision full Court ruling overturning Bradley and affirming the convictions might the convictions Bradley and affirming ruling overturning full Court have made a significant difference. the Presidency retained The Republicans abandon en- no incentive to and they had control of the Senate, and firm on their own.forcement Party to provide the Americans continued African the states of in the South, and bloc of support rock-solid with an enormous, Republican hands. and Florida remained in South Carolina, Louisiana, in political ac- continued to combat terrorism and engage Black southerners tion wherever possible. Court ruling would, at a A favorable Supreme terrorism, endowed the existence and criminality of stroke, have affirmed given the Republi- with constitutional legitimacy, and the enforcement effort victory after a string of defeats.cans a badly needed It seems unlikely that, launched the cam- a ruling, the Democrats would have in the face of such Ellenton, and laid produced massacres at Hamburg and paign of terror that returns from the victories in the initial election the basis for Democratic black majority states. Democrats a victory that they could not have achieved through political ac- Democrats a victory that they could tion. retain control of the Presidency and the Not only did the Republicans ability to conduct a substantial en- Senate, but they also demonstrated their resistance during the election forcement campaign in the face of Democratic campaign of 1876. likely that they would have encountered consid- It seems away the legal obstacles erected erably more success had the Court cleared few, militantly Republican newspapers expressing outrage. ingly, the press reaction to tween paramilitary success and the Northern will to fight, see Policy-Maker wrong and to dissuade the party from engaging further in passing legislation that was power- wrong and to dissuade the party from engaging less to correct social wrongs”). 129 438 offi- the by breaking supremacy of white the inevitability establishing ward of violence. the means on monopoly governments’ cial Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 54 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 76 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 76 34923_hlc 34923_hlc 49-2 Sheet No. 77 Side A 06/09/2014 15:03:23 R R R R R As Reese 338 rulings note 112, at 74. – Ex Parte Yar- supra , Cruikshank The Consensus Constitu- Is the Supreme Court a arguably foreclosed (Accordingly, 333 too little too late. RANDWEIN note 266, at 72 — B (1879) and 335 supra Cruikshank ’s Openings for Voting Rights ’s Openings see also 103 (2010). For a critique of the claim that The Supreme Court did not, how- 58, 270. . – 334 EV 18; Contrary to some previous accounts, Contrary to some , 100 U.S. at 395. – . R 332 T . C Siebold Cruikshank UP Ex Parte Siebold Snubbed LandmarkSnubbed 439 S Before that, only Attorney General Taft seems to Before that, only Attorney General , 2010 did not close off this strategy. did not close off this note 112, at 153; Benedict, 337 note 302, at 117 note 123, at 212. supra supra , , 110 U.S. at 667; , text accompanying notes 257 note 269 and accompanying text. Article I, Section 4 provides: “The Times, supra , 331 Enforcement. (1884), decided after the Democrats had terminated the (1884), decided after the Democrats ANG Two months before the election, U.S. Attorney W.W. Dedrick Two months before the election, OLDMAN RANDWEIN W 336 G B See supra 100 U.S. 371, 395 (1879). 110 U.S. 651, 667 (1884). Yarbrough See supra United States v. Cruikshank, 25 F. Cas. 707, 715 (Bradley, Circuit Justice, C.C.D. La. On the thesis of judicial potency, see Richard H. Pildes, On the thesis of judicial potency, see Richard 339 4. of The Significance There remains the claim, advanced by Brandwein and others, that in- claim, advanced by Brandwein and There remains the 53; 332 333 334 335 336 337 338 339 331 , 89 Tex. L. Rev. 755 (2011). – for purely state elections, the inherent power theory did not apply.for purely state elections, the inherent As of control of majority-black Mississippi in 1875, when the Democrats regained in a purely state election, Bradley’s ruling a racial intent limitation as required by enforcement because section 6 lacked was “not supported by the constitu- the Fifteenth Amendment and thus tion.” plays little role in the account presented here.)plays little role in In theory, this claim holds be protected under federal-state elections, which could for federal and mixed that the federal gov- grounded on Article I, Section 4, the doctrine, loosely free from any inherent power to protect its own elections ernment enjoys the requirement of proving racial intent. brough ever, make this clear until United States v. Reese have grasped the full potential of the theory, deploying it to justify enforce- have grasped the full potential of the campaign ment efforts during the 1876 election reconstruction of southern society by staging coups in the last two Republi- reconstruction of southern society by can-controlled states. the Supreme Court follows the national consensus, see Justin Driver, the Supreme Court follows the national consensus, tion 1874) (No. 14,897). “Majoritarian Institution”? merely redirected it away from a general defense of civil rights and toward it away from a general defense of civil merely redirected up in the phrase of voting rights only, a strategy summed limited protection a fair count.” a “free ballot and 151 and Representatives, shall be prescribed Places and Manner of holding Elections for Senators or in each State by the Legislature thereof; but the Congress may at any time by Law make alter such Regulations, except as to the Places of chusing Senators.” by Bradley. considered rulings, Court Supreme court and the circuit In sum, the judiciary thesis that for the evidence strong to provide appear together, political constitutional and on important independent influence can exert outcomes. national enforcement altogether, the stead of terminating 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 55 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 77 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 77 34923_hlc 34923_hlc 49-2 Sheet No. 77 Side B 06/09/2014 15:03:23 R R R R R R . Id 97, and ENTURY – C ruling had note 6, at 87. 68, 90 ORKERS IN THE – supra W INETEENTH , N Nevertheless, with notes 65 OGUE Cruikshank 343 H URING THE XPERIENCE OF D note 305. In the crucial state of E 1890, black voter turnout was driven – HE see also supra supra ARKET : T M 41; rulings terminated day-to-day civil – REE ORKER F W 19 (quotations at 117, 118).re- was pattern same The – Granted, black organization did not suddenly Granted, black organization Once black organization had been destroyed or Once black organization Cruikshank ITIZEN 342 note 3, at 36 . blacks consti- Only in Texas and upper-South states, where 341 Id , C note 100, at 158. supra , Id. note 3, at 60. supra EMOCRACY AND THE , 56. Over the period from 1880 note 81, at 114 D – When the ALELLY supra ONTGOMERY V , supra 344 , M . at 50 TATES WITH ACZOROWSKI AVID 340 ABLE ALELLY 61 (quotation at 159). Federal troops could be effective if deployed in significant V See id K D R S – Far more importantly, voting rights enforcement by itself could not pre- by itself could not rights enforcement importantly, voting Far more 24 (1993); 343 344 340 341 342 – NITED Democrats in control of state government and black organization suppressed Democrats in control of state government to prevent election rigging and terror- in most rural areas, there was nothing ist violence. or entirely disappear after 1877. Black southerners continued to resist white upper South states, and a few scattered supremacy in cities, some border and majorities. rural districts with overwhelming black suppressed, election-time enforcement had little effect.suppressed, election-time Demo- the When for example, elec- of Alabama in the election of 1874, crats regained control the state, but only “reasonably peaceful” in most of tion day itself was terrorism triggered by Bradley’s because the wave of already induced many Republicans to decide that “it was not worth risking Republicans to decide that “it was already induced many ballot.” their lives to cast a below 50% in the three black-majority states of Louisiana, Mississippi, and South Carolina, and more than half of the black votes were fraudulently counted for Democrats in Alabama, Georgia, and South Carolina. vent the resubjugation of African Americans.resubjugation of vent the work recent historical As basis waged on a quotidian civil rights was the struggle for makes clear, voting power.power, not just at election time using using all forms of Afri- of mutually rein- their allies depended upon networks can Americans and and unofficial including political clubs, official forcing power centers gospel,” and churches spreading the “radical militias, labor associations, black-owned newspapers. tuted a smaller proportion of the population and therefore less of a threat to white supremacists, did more than 50% of blacks vote, and more than 50% of those voters have their votes counted correctly. Louisiana, by 1871 “there were fewer than seven hundred U.S. troops . . . , a smaller garrison Louisiana, by 1871 “there were fewer than seven the Civil War.” than the army routinely kept in the state before U 121 accompanying text. was relatively quiet,” but only because system- peated in Mississippi, where “[e]lection day of Republican officials modeled on “the atic intimidation and violence (including ousters already suppressed Republican capabilities to tactics of the Louisiana White Leaguers”) had uncontested shows of force near the polls. the point that the Democrats were able to stage at 158 communities, as at Grant Parish in 1876, but numbers near polling places in majority-black front-line function in more than a small propor- there were never enough troops to perform this where the overwhelming majority of Afri- tion of communities, much less in the countryside can Americans resided. numbers, see For troop 440 and effective thorough of more a condition was in that “Mississippi warned Hill di- Judge District War, but the Civil during than insurrection” armed Review Rights-Civil Liberties Law Civil Harvard court of the recent federal prosecuting because to refrain from rected him [Vol. rulings. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 56 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 77 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 77 34923_hlc 34923_hlc 49-2 Sheet No. 78 Side A 06/09/2014 15:03:23 R , ENTER C archived at ILLER . M A 347 V OF . NIV The issue of federalism U 346 (Dec. 7, 1874), Nevertheless, it does appear that Justice it does appear Nevertheless, 345 63. – Snubbed LandmarkSnubbed 441 Sixth Annual Message note 266, at 62 92 (summarizing the literature). – supra at 88 might be less notable for its particular concept of federalism might be less notable for its particular C. and the Full Court Assessing the Performance of Bradley See id. Benedict, Ulysses S. Grant, Bands of men, masked and armed, made their appearance; White Bands of men, masked and armed, made large quantities of arms Leagues and other societies were formed; distributed to these organiza- and ammunition were imported and demonstrations, were held, tions; military drills, with menacing committed to spread terror and with all these murders enough were to be suppressed, if possi- among those whose political action was proceedings . . . . ble, by these intolerant and criminal Leaving aside the causal effects of the rulings, how should we assess causal effects of the rulings, how should Leaving aside the None of this is to deny that the Justices’ intervention was but one of a was but one the Justices’ intervention is to deny that None of this 345 346 347 did not, however, exist in a vacuum. Actual state governments, constituted in the Fourteenth Amendment, were on the basis of the citizenry defined insurgents, claiming to enforce their locked in struggle with paramilitary states’ right to be free from federal enforcement. Under these circumstances, Cruikshank claim that paramilitary insur- than for its tacit acceptance of the Democratic no serious problem in the South.rection either did not exist or posed By framed the issue as one of effective contrast, Republican leaders typically a distant second.law enforcement first and federalism Six months after Grant charged that white Bradley’s ruling, for example, President criminal resistance to lawful supremacists were engaged in systematic authority: Bradley’s ruling decisively interrupted enforcement and triggered the second interrupted enforcement and Bradley’s ruling decisively in the balance, and at a moment when a fragile peace hung terrorist offensive of fraud and ruling cleared the way for the campaign that the full Court’s the “redemption” of the last two Republican-controlled violence that led to states. the Justices’ performance?Justices’ the to Michael Les Benedict, Justice According principles of federal- Court were merely implementing Bradley and the full Republicans. ism embraced by all but the radical http://millercenter.org/president/speeches/detail/3745 (last visited Mar. 21, 2014), http://perma.cc/DZ95-NYGC. rights enforcement, then, they opened the door to “redemption” and facili- and “redemption” door to the they opened then, enforcement, rights Crow. of Jim regime in the legal consummation its eventual tated the triumph and the collapse of Reconstruction factors leading to number of supremacy.of white southern Republicans Reconstruction, Throughout northern panic of 1873, and after the financial with infighting, were plagued enforcement declined. support for 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 57 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 78 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 78 34923_hlc 34923_hlc 49-2 Sheet No. 78 Side B 06/09/2014 15:03:23 R R R R In indi- In a 348 PRO- 349 opinions note 123, at THIS , however, he , however, note 123, at 180. supra , THE EQUAL Harper’s Weekly Cruikshank Ex Parte Siebold ANG supra , W THIS Cruikshank ANG Cruikshank W see also reprinted in 351 Republican circuit court Judges Woods and Republican circuit court Judges Woods 353 and in sharp contrast to and in sharp , as noted above, the Court held that Congress pos- , as noted above, the Court held that 17 and accompanying text. During the 1876 election campaign, During the 1876 election – , Sept. 2, 1876, at 712, Prigg note 184, at 427. 350 note 2, at 457 (citing various sources); EEKLY notes 109 supra W S ’ supra , A REPUBLICAN FORM OF GOVERNMENT? A REPUBLICAN IS By contrast, neither Bradley’s nor Waite’s By contrast, neither Bradley’s nor U.S. Attorney Thomas Walton, a Confederate veteran, vigorously U.S. Attorney Thomas Walton, a Confederate . ARPER ONER Id. Id. Id H F Cresswell, See supra 354 352 It has also been argued that decisions subsequent to It has also been argued that decisions Similar views animated the enforcement effort.Similar views animated the enforcement Gen- Attorney U.S. To Grant reported on his enforcement efforts and acknowledged that acknowledged and efforts enforcement on his reported Grant THIS Ex Parte Yarbrough 348 349 350 351 352 353 354 context of violent insurrection, Grant prioritized the institutionalization of insurrection, Grant prioritized the context of violent over the preser- normalization of two-party competition black rights and the vation of “state” autonomy. he the negro as a citizen and a voter, as “Treat not on the color line, and soon parties will be divided, is and must remain, but on principle,” he declared. sec- we shall have no complaint of “Then tional interference.” terms reminiscent of terms reminiscent argued that without federal intervention, constitutional rights would be nulli- rights would intervention, constitutional without federal argued that fied.not pro- act do and [Enforcement] [Fifteenth] amendment “[I]f said then they as above stated, the circumstances interference under vide for such colored en- whole scheme of or effect, and the meaning, force, are without a crime.” than mockery and little better than franchisement is worse Bond worked this concern into their decisions, according Congress wide def- Bond worked this concern into their decisions, of the practical exigencies of enforce- erence to reach private action in light ment. expressed this thinking in visual form, depicting a black man mourning fatal in visual form, depicting a black expressed this thinking with the caption: on schools, work shops, and homes raids by “white liners” “IS TECTING LIFE, LIBERTY, OR PROPERTY?TECTING LIFE, IS PROTECTION OF THE LAWS?” prosecuted white terrorists in Mississippi because the Democratic Party had prosecuted white terrorists in Mississippi become the party of violence. eral and former Confederate Amos Akerman, the Ku Klux Klan was a crimi- eral and former Confederate Amos Akerman, of law.nal gang openly challenging the rule “These combinations amount effectually crushed on any other the- to war,” he declared, “and cannot be ory.” expressed any concern whatever about either the practicalities of rights en- expressed any concern whatever about and order.forcement or the preservation of law theoreti- for solicitude Their their silence concerning the cal state autonomy rings hollow alongside actual state authority. ongoing violent insurrection against for black rights.cate considerable judicial solicitude In and the federal election process against sessed the inherent power to protect 96. 442authority.” Federal by interference of this are made “[c]omplaints Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 58 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 78 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 78 34923_hlc 34923_hlc 49-2 Sheet No. 79 Side A 06/09/2014 15:03:23 R R R R — In and The 359 Cooley 356 .” Siebold Accordingly, Ex Parte Siebold, note 112, at 153, 360 had repeatedly with supra Cruikshank , Justice Miller’s opin- “sent a clear message 362 and — Cruikshank RANDWEIN B Reese , On the way to this conclusion, , Chief Justice Waite (riding cir- Waite (riding Justice , Chief 361 jibed with the pre-1877 jurispru- jibed with the pre-1877 , 100 U.S. at 394. Cruikshank Butler departed even more sharply from the pre- departed even more sharply from the 358 Snubbed LandmarkSnubbed 443 now chastised unnamed persons for regarding now chastised unnamed persons for , and 86. with Siebold – — 36 and accompanying text. combined with the results combined with the – note 112, at 146. Yarbrough United States v. Butler States United — supra Yarbrough note 123, at 209. Brandwein suggests that the doctrine of , , decided only one month after the Democratic coups in Lou- the Democratic only one month after , decided , 23. notes 334 – United States v. Cruikshank, 92 U.S. 542, 550 (1876), United States v. Cruikshank, 25 F. Cas. 707, 714 (Bradley, Circuit Justice, supra , 100 U.S. at 385 whose circuit court opinion in to justify the state action requirement and nonincorporation of action requirement and nonincorporation to justify the state , As Brandwein points out, the inclusion of such facts was “politi- out, the inclusion of such facts As Brandwein points — Butler was present in “coded” form in at 217 ANG Siebold RANDWEIN , for example, Justice Bradley rejected the theory of mutually exclu- Bradley rejected the theory of mutually , for example, Justice Moreover, in in Moreover, 357 25 F. Cas. 213, 224 (Waite, Circuit Justice, C.C.D. S.C. 1877) (No. 14,700). 25 F. Cas. 213, 224 (Waite, Circuit Justice, Id. B W Compare Siebold Compare See supra If 355 356 357 358 359 360 361 362 355 report of Siebold four years earlier in powers that had been used only sive federal and state Cruikshank the Bill of Rights. Waite had maintained that the “powers which one Where other does not,” Bradley cited [level of government] possesses, the and the federal government possessed for the proposition that the states some subject matters. “concurrent jurisdiction” to regulate isiana and South Carolina, included a lengthy statement of facts detailing statement of facts included a lengthy South Carolina, isiana and Ellenton and after the Republicans during and abuse of black murders “riot.” he held, the authority of states over certain elections did not preclude Con- he held, the authority of states over gress from regulating the same elections. ion for the Court in 1877 decisions. about white supremacist combinations prone to Concerns need for effective law enforcement “lawless violence” and the resulting Bradley organization, opposed to the proper the federal government “as a hostile governments.” sovereignty and dignity of the State deployed the specter of Congress usurping state jurisdiction with “an entire deployed the specter of Congress usurping body of municipal law” to the Hayes administration.” cally charged,” and cally charged,” and cuit) and Circuit Judge Bond upheld indictments against white paramilitaries upheld indictments Circuit Judge Bond cuit) and Fifteenth Amendment. theory and the the inherent power under both 100 U.S. 371, 385, 392 (1879). C.C.D. La. 1874) (No. 14,897), Yarbrough of but statements so obscure as to require decoding cannot count for much in a context paramilitary insurrection where prosecutors lacked resources and risked social and physical retaliation. fraud and violence without any requirements of state action or racial in- or racial state action of requirements any without and violence fraud tent. agenda before as provide evidence of the Justices’ dence, then they might year.well as after that crucial accurate, however, to say that It seems more a judicial and polit- sharply from the past, “displaying those decisions broke different from that of ical temper radically 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 59 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 79 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 79 34923_hlc 34923_hlc 49-2 Sheet No. 79 Side B 06/09/2014 15:03:23 R , , 1 But- (1876) in 1876 to Cruikshank Reese and now found eloquent found now Finally, given that Finally, given that — 364 Constitutional Approach: The Sec- United States v. Cruikshank Cruikshank opinions opinions 53. ar- Similarly, Leslie Friedman Goldstein has (1873), and – in 1877, 1880, and 1884.planters the With Cruikshank Cruikshank note 112, at 151 Yarbrough demonstrated the judiciary’s capacity to deliver a clear demonstrated the supra Slaughter-House Cases . 365, 369 (2008). , , and In section II.C above, I suggested that Bradley might have In section II.C above, I suggested EV 365 diverted it away from general civil rights and toward voting diverted it away from general civil 363 L. R T Yarbrough ’ . at 666. Siebold RANDWEIN , Ex Parte Yarbrough, 110 U.S. 651, 667 (1884). Id B OV This brings us back to one of the critics’ most important contributions. This brings us back to one of the critics’ Finally, it should be noted that the Supreme Court’s performance con- Finally, it should be noted that the Supreme If the government of the United States has within its constitutional States has within of the United If the government evils, if the very against these authority to provide domain no by or controlled by corruption power may be poisoned sources of then, indeed, is the legal restraint, and outrage, without violence the and its best powers, its highest purposes, country in danger, are at the and the love which enshrines it, hopes which it inspires, but brute of those who respect no right mercy of the combinations on the hand, and unprincipled corruptionists force, on the one other. 363 364 365 . G and LB ler rights only. message against terrorism, the question arises: why did Waite, Bradley, and the question arises: why did message against terrorism, Democrats had com- refrain from doing so until after the the other Justices states? pleted their conquest of the Republican-controlled national enforcement altogether, They point out that, instead of blocking Cruikshank initiated this shift to accomplish the dual objectives of solving the planters’ initiated this shift to accomplish the the national Republican Party’s op- problem of labor control and preserving portunity to reap black votes. Similar concerns might help to explain the sudden shift in the Court’s attitude from Butler restored to power on the ground, and southern labor partially returned to its restored to power on the ground, and perhaps the Justices felt freer to pro- “normal condition” of subordination, in gathering black votes.tect the national Republican Party’s interest In any embrace of official law and order case, it seems unlikely that their sudden states was unrelated to the after the “redemption” of the last black-majority in control. fact that the white elite was safely back actors.trasted starkly with that of other legal U.S. Attorneys diligently in- despite scarce resources.vestigated and prosecuted perpetrators Most lower and deferred to Congress on the courts interpreted the Amendments broadly A ond Amendment, the gued that the Justices were trying “to channel Reconstruction: training it to grow in certain directions rather than others.”Goldstein, Friedman Leslie Miller leaped into doctrinal free fall: “[I]t is a waste of time to seek for doctrinal free fall: “[I]t is a waste Miller leaped into the power to pass these laws.” specific sources of expression: of from the clause-bound reasoning In a dizzying departure 444the from absent entirely Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 60 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 79 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 79 34923_hlc 34923_hlc 49-2 Sheet No. 80 Side A 06/09/2014 15:03:23 R R R for the ECONSTRUCTION 31 (2010) (citing Echoing this – Cruikshank R among a set of 368 note 2, at 1595. HAT Claude Bowers, E. , W 367 supra But the Justices of the the Justices But , AKER 366 Cruikshank ONER F 46 (2007)). E. B , only two Justices have authored During Earl Warren’s tenure as , Carpenters v. Scott, 463 U.S. 825, 831 OUTH RUCE 370 S B 58; Screws v. United States, 325 U.S. 91, 109 58; Screws v. United States, 325 U.S. 91, – see, e.g. ’s holding that the Due Process Clause of the Four- ONCLUSION MERICAN Cruikshank 97; C – A Snubbed LandmarkSnubbed 445 Cruikshank ’s holding that the Equal Protection Clause of the Fourteenth ’s holding that the Equal Protection Clause served as an unproblematic precedent for decisions served as an unproblematic precedent , 341 U.S. at 657 EMORY IN THE McDonald v. City of Chicago, 130 S. Ct. 2020, 3030 note 2, at 1594 (quoting note 2, at 1596 M xx. – Collins section I.C. Cruikshank , supra supra see also 371 . , , Cruikshank for the proposition that the Second Amendment right to bear arms was not incor- ISTORICAL at xxix ONER ONER F See supra F Id. Collins v. Hardyman, 341 U.S. 651, 657 (1951); See, e.g. : H 369 During the 138 years since Until the 1960s, the judicial view of Reconstruction mirrored that of the judicial view of Reconstruction mirrored Until the 1960s, the 371 366 367 368 369 370 EANT view, the Supreme Court opined that the Enforcement Act of 1871 had been Court opined that the Enforcement view, the Supreme inflamed atmosphere” with “defects” “passed by a partisan vote in a highly brought about a severe reac- that were soon “realized when its execution tion.” Merton Coulter, and other Dunning School historians attributed the tragedy other Dunning School historians Merton Coulter, and to black suffrage, not white terrorism. of Reconstruction Supreme Court, who enjoyed physical security and jobs protected by life and jobs protected physical security Court, who enjoyed Supreme judgment to ignore the Amendments narrowly, to interpret the tenure, chose project of legal talents to the their formidable and to apply of Congress, the prosecutions. flaws in finding technical asked Americans had Black self-de- to enable their own necessary the modicum of protection only for fense. they asked in vain. Thanks largely to the Supreme Court, Chief Justice, the Court ceased citing Dunning School historians, but left Chief Justice, the Court ceased citing that they had celebrated, including standing many of the precedents Cruikshank opinions disapproving the decision: Thurgood Marshall and Clarence opinions disapproving the decision: Thomas. listed Writing in 1978, Justice Marshall Dunning School, since discredited among historians as a “‘white discredited among historians as Dunning School, since suprema- masquerading as proper history.’”cist narrative . . . narrowing federal civil rights authority. teenth Amendment “adds nothing to the rights of one citizen as against another”). (1983) (quoting Amendment “‘does the Consti- not . . . add anything to the rights which one citizen has under another’”);against (citing Mobile v. Bolden, 446 U.S. 55, 61 (1980) tution cases that, through “‘narrow and ingenious’” and cases that, through “‘narrowreasoning, “sharply curtailed” M . . imposes but one limitation on the powers of proposition that “the Fifteenth Amendment . do the States,” namely forbidding “them to discriminate against Negroes in matters having to with voting”); choice choice of means to enforce them. braved of all colors and jurors Witnesses verdicts. deliver testify and to violence retaliatory 2014] Cruikshank porated against the states through the Privileges or Immunities Clause of the Fourteenth Amendment, and noting that it did not mention and therefore did not foreclose the possibility 529 of incorporating that right through the Due Process Clause); United States v. Morrison, U.S. 598, 622 (2000) (quoting \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 61 29-MAY-14 11:59 (1945). 34923_hlc 49-2 Sheet No. 80 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 80 34923_hlc 34923_hlc 49-2 Sheet No. 80 Side B 06/09/2014 15:03:23 R ’s Among note 2, at ’s holding who had 374 Cruikshank — supra , In sharp contrast AHN 375 H Cruikshank , Thomas United States v. Morrison belongs at the center of Cruikshank The same purposive concern for ef- Four years ago, Justice Thomas went Thomas Justice years ago, Four warrant mention as well.” warrant Cruikshank 378 372 ,” he declared, “is not a precedent entitled to any entitled precedent “is not a declared, ,” he Cruikshank And, although he mentioned that private terrorists And, although he mentioned that 377 into the mainstream legal-professional narrative of consti- into the mainstream legal-professional Court itself, Thomas took a purposive approach to the took a purposive approach to Court itself, Thomas ’s holding that blacks could look only to state govern- ’s holding that blacks Cruikshank , 130 S. Ct. at 3086 (Thomas, J., concurring in the judgment). , 130 S. Ct. at 3087 (Thomas, J., concurring); United States v. Morrison, 529 , 130 S. Ct. at 3087 (Thomas, J., concurring); 376 26 (2000). In part, this followed from what Thomas viewed as what Thomas viewed followed from In part, this – 373 . at 3087. Cruikshank Cruikshank Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 391 (1978) (Marshall, J., concur- Regents of the Univ. of Cal. v. Bakke, 438 U.S. McDonald Id. Id Id. McDonald McDonald ments for protection of their right to keep and bear arms enabled of their right to keep and bear arms ments for protection to with the assistance of local governments, private forces, often through a freed slaves and their descendants subjugate the newly the voting designed to drive blacks from wave of private violence return to them into peonage, an effective booth and force slavery. Cruikshank Present-day consequences aside, This passage hints at the potentially transformative impact of incorpo- This passage hints at the potentially 07. 372 373 374 375 376 377 378 – now appeared to chafe at the failure of civil rights enforcement against now appeared to chafe at the failure — these was the unleashing of white terrorists, who “raped, murdered, lynched, “raped, murdered, white terrorists, who the unleashing of these was of intimidating” their opponents. and robbed as a means to the Fourteenth Amendment, stressing the value of effective civil rights stressing the value of effective Fourteenth Amendment, enforcement: fective civil rights enforcement that tends to undercut fective civil rights enforcement that would seem to invite skepticism on the Privileges or Immunities Clause on state action, intentional race dis- about its explicit and implicit holdings crimination, and nondeference to Congress. our constitutional narrative and pedagogical canon.our constitutional narrative and pedagogical Not only did it initiate limitations on the scope of the Re- four of the most important present-day much further.much “ respect.” often enjoyed “the assistance of local governments,” he then proceeded to often enjoyed “the assistance of local Hamburg, South Carolina, where the highlight the battle and massacre at black Republicans, and the perpetrators local government was controlled by were members of private rifle clubs. flawed holding that the Privileges or Immunities Clause did not incorporate Clause did not or Immunities that the Privileges flawed holding the Bill of Rights. opining interpretive issues, went beyond But the Justice consequences of that “the rating tutional law. respect for Having lost ring in part and dissenting in part) (quoting C. Vann Woodward in the first quotation). ring in part and dissenting in part) (quoting C. U.S. 598, 625 305 446 Americans. of black rights the civil Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 “private violence.” \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 62 29-MAY-14 11:59 joined in affirming the state action requirement in joined in affirming the state action requirement 34923_hlc 49-2 Sheet No. 80 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 80 34923_hlc 34923_hlc 49-2 Sheet No. 81 Side A 06/09/2014 15:03:23 national and — left open the possibility of left open the possibility unlike the current vehicles for vehicles the current unlike — Cruikshank on a dramatic set of facts involving the core the facts involving set of a dramatic on Snubbed LandmarkSnubbed 447 — added to the canon, our legal-professional narrative added to the canon, exerted an enormous impact on the ground.an enormous impact exerted court circuit The Cruikshank against paramilitary insurrection. against paramilitary we previously empha- And where — Were state we might now of judicial review to racist legislation, sized the application by nullifying the Court has not exerted more influence consider whether civil rights legislation. Furthermore, instead of imagining that the federal of protecting black civil rights, as government carried the main burden Americans themselves provided before, we might acknowledge that African “white man’s government” in the the first line of defense against one-party assistance necessary to maintain South, asking only the modicum of federal law and order. where our received canon severed race from And finally, and race-ing the working class white, class, declassing African Americans fact that the struggle for civil rights we might begin to grapple with the the problem of labor control looming entwined issues of race and class, with large. purpose of the Amendments: protecting black civil freedom. protecting black the Amendments: purpose of Moreover, Cruikshank phase the second and decisive unleashed Justice Joseph Bradley opinion of Court en- ruling of the full terrorism, while the white of Reconstruction-era of supremacist “redemption” in the white successful culmination sured its states.the majority-black Although it terminated the enforcement around election time, targeted voting rights ending the effort enforcement of civil rights, effectively day-to-day federal society. to reconstruct southern ways.and Jim Crow might shift in important of Reconstruction once Where autonomy, we between national power and “state” we stressed the conflict the struggle of official legal authority might now spotlight teaching those doctrines doctrines those teaching construction Amendments, but it did so but Amendments, construction 2014] \\jciprod01\productn\H\HLC\49-2\HLC205.txt unknown Seq: 63 29-MAY-14 11:59 34923_hlc 49-2 Sheet No. 81 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 81 34923_hlc