1381
THE KLAN, THE CONGRESS, AND THE COURT:
CONGRESSIONAL ENFORCEMENT OF THE FOURTEENTH AND
FIFTEENTH AMENDMENTS & THE STATE ACTION SYLLOGISM,
A
BRIEF HISTORICAL OVERVIEW
Michael Kent Curtis
*
I
NTRODUCTION
Early congressional attempts to enforce the Fourteenth and Fif-
teenth Amendments were frustrated far too often by the U.S. Su-
preme Court.
1
Supreme Court opinions then and since have ignored
too much historical context.
2
The missing context includes the his-
*
Judge Donald Smith Professor of Constitutional and Public Law, Wake Forest University
School of Law. B.A. University of the South, J.D. University of North Carolina, M.A. Uni-
versity of Chicago. Thanks to Miles Foy for suggestions on an earlier draft of this article,
to Jason Sowards for invaluable assistance locating sources and citations, and to my re-
search assistant Lyndsey Marchman for her outstanding assistance. © Michael Kent Cur-
tis.
1
E.g., United States v. Cruikshank, 92 U.S. 542, 554 (1875) (“The fourteenth amendment
prohibits a State from depriving any person of life, liberty, or property, without due proc-
ess of law; but this adds nothing to the rights of one citizen as against another.”); United
States v. Reese, 92 U.S. 214, 217 (1875) (“The Fifteenth Amendment does not confer the
right of suffrage upon any one. It prevents the States, or the United States, however,
from giving preference, in this particular, to one citizen of the United States over another
on account of race, color, or previous condition of servitude.”); cf. United States v. Harris,
106 U.S. 629, 644 (1882) (holding that the Fourteenth Amendment did not support a
federal statute punishing individuals in a lynch mob for depriving the victim (a prisoner
in a state jail) of equal protection of the law); The Slaughter-House Cases, 83 U.S. (16
Wall.) 36, 83 (1872) (holding that an act of the state legislature granting a corporation
the exclusive right to maintain slaughterhouses, among other provisions, did not deprive
plaintiffs
of due process, equal protection or privileges and immunities and eviscerating
the Privileges or Immunities Clause).
2
See, e.g., United States v. Morrison, 529 U.S. 598, 620–21 (2000) (discussing early Supreme
Court cases interpreting the Fourteenth Amendment); City of Boerne v. Flores, 521 U.S.
507, 520–24 (1997) (discussing the historical background of the Fourteenth Amend-
ment). This article continues and develops earlier work on this subject. See generally
M
ICHAEL KENT CURTIS, FREE SPEECH, “THE PEOPLE’S DARLING PRIVILEGE”: STRUGGLES FOR
FREEDOM OF EXPRESSION IN AMERICAN HISTORY (2000) [hereinafter CURTIS, FREE SPEECH]
(giving a history of free speech between the colonial era and the Civil War);
MICHAEL
KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF
RIGHTS (1986) [hereinafter CURTIS, NO STATE SHALL ABRIDGE]; WILLIAM W. FREEHLING, 2
THE ROAD TO DISUNION: SECESSIONISTS TRIUMPHANT 1854–1861 (2007); LEONARD L.
RICHARDS, “GENTLEMEN OF PROPERTY AND STANDING”: ANTI-ABOLITION MOBS IN
JACKSONIAN AMERICA (1970); WILLIAM SHERMAN SAVAGE, THE CONTROVERSY OVER THE
1382 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
torical background of the Fourteenth Amendment and the terrorism
that provoked efforts to enforce the Fourteenth and the Fifteenth
Amendments. By leaving out context, the Court has
obscured what
was at stake.
A broader context includes slavery and civil liberties, the suppres-
sion of free speech and effective democracy in the South before and
after
the Civil War, and the appeal to democratic values and to na-
tional Bill of Rights liberties before and after the Civil War. A broad-
er Reconstruction context includes the attack by political terrorists
on majority rule, speech, press and political association, and the right
to vote.
Simply reading Supreme Court opinions (then and later), one
would not understand that political terror during Reconstruction was
a key weapon used to undermine biracial democracy in the South.
One would certainly not understand the extent to which the United
States Supreme Court facilitated the result.
3
Though race was a cru-
cial factor, any account of the attack on Reconstruction is grossly mis-
leading to the extent that it emphasizes race to the exclusion of ma-
jority rule, democracy, and political freedom. These values were at
DISTRIBUTION OF ABOLITION LITERATURE, 1830–1860 (photo. reprint 1968) (1938); Mi-
chael Kent Curtis, The Fourteenth Amendment: Recalling What the Court Forgot, 56 D
RAKE L.
REV. 911, 941–55 (2008) (discussing, as a contribution to the Drake Symposium on For-
gotten Constitutional Provisions, how various government officials and judges thought
the Fourteenth Amendment should be applied); Michael Kent Curtis, John A. Bingham
and the Story of American Liberty: The Lost Cause Meets the “Lost Clause,” 36 A
KRON L. REV.
617 (2003) [hereinafter Curtis, Bingham] (discussing, as a contribution to the symposium
on John A. Bingham, different interpretations of the Fourteenth Amendment around the
time of the Civil War); Clement Eaton, The Freedom of Thought Struggle in the Old South, cited
in R
USSELL BLAINE NYE, FETTERED FREEDOM: CIVIL LIBERTIES AND THE SLAVERY
CONTROVERSY, 1830–1860 (1972). For additional scholarship on application of the Bill of
Rights to the States,
see AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND
RECONSTRUCTION (1998); Richard L. Aynes, On Misreading John Bingham and the Fourteenth
Amendment,
103 YALE L.J. 57 (1993); George C. Thomas III, The Riddle of the Fourteenth
Amendment: A Response to Professor Wildenthal,
68 OHIO ST. L.J. 1627 (2007) (arguing for a
negative to agnostic view of application); Bryan H. Wildenthal,
Nationalizing the Bill of
Rights: Revisting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 O
HIO
ST. L.J. 1509 (2007) (citing sources on both sides of the debate but supporting applica-
tion).
For an outstanding article dealing with the attack on democracy during Recon-
struction, see Gabriel J. Chin & Randy Wagner, The Tyranny of the Minority: Jim Crow and
the Counter-Majoritarian Difficulty, 43 H
ARV. C.R.-C.L. L. REV. 65 (2008) (focusing on the
victory of “Redemption” and disfranchisement ending Reconstruction as replacing major-
ity with minority rule).
3
The opinions themselves of course do not mention such facilitation. See, e.g., Harris, 106
U.S. 629; Cruikshank, 92 U.S. 542; Reese, 92 U.S. 214; The Slaughter-House Cases, 83 U.S. 36.
For an account of the facts surrounding
Cruikshank, see CHARLES LANE, THE DAY FREEDOM
DIED: THE COLFAX MASSACRE, THE SUPREME COURT, AND THE BETRAYAL OF
RECONSTRUCTION (2008) [hereinafter LANE].
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1383
stake both for Americans of African descent and for their white allies.
By undermining protections for both white and black Republicans in
the South, the Court wounded democratic values and severely
wounded protection for fundamental rights of all American citizens.
The Court’s decisions helped a minority that used terrorist tactics,
force, and fraud
displace democracy and majority rule.
4
The results
were especially awful for Americans of African descent.
5
I.
BACKGROUND
As the title of this conference recognizes, the Thirteenth, Four-
teenth, and Fifteenth Amendments were a second founding. In the
second founding, a second group of framers sought to give the na-
tion a new birth of freedom and to bring it closer to the ideals of the
Declaration of Independence and the Constitution’s preamble. The
nation sorely needed a second founding. The slave system had sys-
tematically undermined liberty and equality. Slavery had done this
not only for slaves and free blacks, but for whites as well.
6
Under the original Constitution, states and individuals could and
did deny slaves virtually all liberties, and if the hapless slave escaped
to a free state, the Constitution (as interpreted in Prigg v. Pennsyl-
vania
7
) broadly protected the right of the slave owner to get him
back. In Dred Scott,
8
the Supreme Court had held that free Americans
of African descent could never be citizens of the United States. Only
4
See, e.g., ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863–1877,
at 279, 342–44, 425–44 (1988) (describing the violent tactics that some whites used to in-
timidate blacks and Republicans); V
ERNON LANE WHARTON, THE NEGRO IN MISSISSIPPI
1865–1890, at 181–206 (1984) (explaining the use of political violence and fraud, fol-
lowed by disfranchisement, in the South in 1875); L
ANE, supra note 3. See also cases cited
in supra note 3.
5
For some of the consequences, see, for example, DOUGLAS A. BLACKMON, SLAVERY BY
ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL WAR TO
WORLD WAR II (2008) (describing abuse of the criminal justice system and other abuses
in Southern states that reduced Americans of African descent to virtual slavery); Chin &
Wagner, supra note 2, at 110–22 (setting out consequences from the racial caste system to
disfranchisement and criminal justice).
6
See, e.g., CURTIS, FREE SPEECH, supra note 2, at 216–70 (describing the killing of Elijah Lo-
vejoy, who was defending his anti-slavery press from a mob, and the suppression of anti-
slavery speech in the North by mob action and in the South by laws and mobs); id. at 271–
99 (detailing the suppression of Republican meetings, supporters, and campaign litera-
ture, etc. in the South); Curtis, Bingham, supra note 2, at 640–41 (noting the same denial
of free speech in the South).
7
41 U.S. (16 Pet.) 539, 613–14 (1842) (“[W]e have not the slightest hesitation in holding,
that, under and in virtue of the Constitution, the owner of a slave is clothed with entire
authority, in every state in the Union, to seize and recapture his slave . . . .”).
8
Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857).
1384 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
United States citizens were entitled to the rights, privileges, and im-
munities set out in the Constitution; Americans descended from
slaves were excluded. By the Dred Scott decision, free blacks had no
federal constitutional rights.
Earlier, in Prigg v. Pennsylvania,
9
the Court struck down a Pennsyl-
vania law that guaranteed a due process hearing to Americans of Af-
rican descent captured in Pennsylvania as supposed “slaves.” Penn-
sylvania had freed all slaves in the state around 1800, and it passed a
series of laws that sought to protect its black citizens from re-
enslavement. The centerpiece of that protection was a law requiring
a due process hearing before blacks found in the state were taken
from the state and consigned to slavery for life.
10
In Pennsylvania, all persons were presumed to be free. In slave
states, blacks were presumed to be slaves.
11
The Prigg decision upheld
the right of the supposed slave owner to capture her supposed slave
in Pennsylvania and return the slave and her children to slavery with-
out any legal process whatsoever.
A due process hearing before removal was crucial. Once a black
person was removed from Pennsylvania to a slave state, she would be
stripped of the presumption of freedom and be presumed to be a
slave. However, the Supreme Court held the slave owner had an im-
mediate right to possession of the slave and any delay at all, such as
that required for a hearing, would interfere with the slave owner’s
constitutional right to immediate possession.
12
The pre-Civil War federal system allowed states to deprive free
Americans of African descent of all sorts of rights, including the right
to contract, to inherit, to own real property, to testify against whites,
to preach, to bear arms, to assemble, and to enjoy freedom of
speech.
13
9
Prigg, 41 U.S. (16 Pet.) 539.
10
See id. at 602 (setting out Pennsylvania statute). For an early complaint to Congress from
Pennsylvania about the kidnapping of free blacks, see 10 A
NNALS OF CONG. 229–30
(1800); C
URTIS, FREE SPEECH, supra note 2, at 108–09.
11
See Prigg, 41 U.S. at 576 (noting Hambly’s brief for Pennsylvania on the conflicting pre-
sumptions).
12
See id. at 612 (“Now, certainly . . . it may fairly and reasonably be said, that any state law or
state regulation, which interrupts, limits, delays, or postpones the right of the owner to
the immediate possession of the slave, and the immediate command of his service and la-
bour, operates, pro tanto, a discharge of the slave therefrom.”).
13
See, e.g., Aldridge v. Commonwealth, 2 Va. Cas. 447 (Va. Gen. Ct. 1824) (stating that slaves
and free blacks are not generally protected by the Virginia Bill of Rights: “[t]he numer-
ous restrictions imposed on [free blacks and mulattoes] in our Statute Book, many of
which are inconsistent with the letter and spirit of the Constitution, both of this State and
of the United States, as respects the free whites, demonstrate, that, here, those instru-
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1385
Slavery not only undermined liberty for Americans of African de-
scent, but also undermined liberty for whites. In the South, state laws
banned expression that would tend to make free blacks or slaves “dis-
content.”
14
The ban applied to virtually all anti-slavery expression ad-
dressed to white voters. It was enforced by searches and seizures for
anti-slavery books and pamphlets and cruel punishments.
15
So, as
both Lincoln and Douglas recognized in their famous debates, Re-
publicans could not campaign in the South or organize a Republican
party there.
16
Mob violence against Republicans was common and ef-
fective.
By the late 1850s, most Republicans in the House of Representa-
tives had endorsed a project to abridge (as a campaign document)
Hinton Helper’s anti-slavery book The Impending Crisis of the South.
The book highlighted the negative effect of the slave system on non-
slave owning whites and advocated state by state elimination of slavery
by democratic action.
17
In North Carolina, an elderly minister circulated Helper’s book as
a Republican campaign document. He was convicted and sentenced
to prison under the state’s bad tendency statute. In 1860, the state
legislature changed the statute against incendiary documents to pro-
vide the death penalty for the first offense.
18
Mobs made frequent resort to such laws unnecessary. For exam-
ple, when a chemistry professor at the University of North Carolina
was outed by a Raleigh paper as a supporter of Republican John C.
Fremont in the 1854 presidential election, he was fired from his job
at the University, and a mob drove him from the state.
19
Southern
ments have not been considered to extend equally to both classes of our population.”)
The Black Codes, passed after the Civil War, which abridged for Americans of African de-
scent the rights of speech, assembly, religion, to bear arms, and to be free from cruel
punishments, would have been constitutional but for the Thirteenth and Fourteenth
Amendments.
See infra text accompanying note 30 (setting out these restrictions on free
Americans of African descent).
14
See, e.g., Act to Prevent Circulation of Seditious Publications, N.C. Rev. Code ch. 34, sec.
16 (1854) (revising 1830 N.C. Sess. Laws ch. 5, at 10–11).
15
See CURTIS, FREE SPEECH, supra note 2, at 260–63 (discussing Southern suppression of an-
ti-slavery documents); id. at 290 (describing how the North Carolina Council of State
warned postmasters to ban incendiary books or newspapers and to strictly scrutinize out
of state merchants, tract distributors and book dealers).
16
CREATED EQUAL?: THE COMPLETE LINCOLN-DOUGLAS DEBATES OF 1858, at 290–91 (Paul
M. Angle ed., 1958); C
URTIS, FREE SPEECH, supra note 2, at 282.
17
HINTON ROWAN HELPER, THE IMPENDING CRISIS OF THE SOUTH: HOW TO MEET IT (1857).
18
See CURTIS, FREE SPEECH, supra note 2, at 271–72, (describing Helper’s book); id. at 271–
96 (discussing Worth’s case and the change in the statute).
19
CURTIS, FREE SPEECH, supra note 2, at 290.
1386 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
mobs punished those who attended Republican national conventions
and dispersed a Republican meeting in Virginia.
20
Nor had these outrages been limited to the South. Mobs in the
North attacked abolitionists
21
: in 1838 a mob burned a hall abolition-
ists built in Philadelphia devoted to free discussion,
22
and mobs de-
stroyed anti-slavery newspaper presses.
23
In the most dramatic case, a
member of the mob killed Elijah Lovejoy, a minister and editor in Il-
linois, who was defending one of his printing presses from a mob.
Mobs had destroyed the previous three.
24
The city government of Al-
ton, Illinois had refused Lovejoy’s request for protection from the
mob. Responding to the killing of Elijah Lovejoy defending his press
from an anti-abolition mob, critics frequently insisted that the mob
had denied Lovejoy the national constitutional privilege of freedom
of the press.
25
With the end of the Civil War, the nation abolished slavery with
the reluctant assent of the former Confederate states. For most Re-
publicans this converted former slaves into American citizens, and for
many leading Republicans, American citizens were entitled to fun-
damental rights that included those in the Bill of Rights, as well as to
equality of rights under state law.
26
But, as the 39th Congress con-
vened in 1865–1866, Republicans saw not a new birth of freedom, but
a rebirth of slavery, including private violence of the sort aimed at
opponents of slavery before the Civil War.
27
After the Thirteenth Amendment was ratified, Southern states
and localities passed Black Codes. These Codes discriminated against
20
CONG. GLOBE, 36th Cong., 1st Sess. 1860–61 (1860).
21
See CURTIS, FREE SPEECH, supra note 2, at 129 (describing a mob attack on William Lloyd
Garrison).
22
See id. at 248–50 (depicting Pennsylvania Hall as a place for free discussion and its de-
struction by a mob).
23
See id. at 140–41 (describing an 1835 attack on an abolitionist meeting and newspaper in
New York state); id. at 149 (depicting the destruction of James G. Birney’s press in Ohio).
24
Id. at 216.
25
See id. at 230–31 (discussing free speech and press in connection with the Lovejoy killing).
26
See, e.g., CURTIS, NO STATE SHALL ABRIDGE, supra note 2, at 48–54 (noting the Thirteenth
Amendment as making blacks citizens and discussing the rights of citizens), 60–61 (Con-
gressman Bingham); cf. id. at 62 (Congressman Donnelly), 74–76 (Congressman Wilson
in the Civil Rights bill debate), 79–80 (Congressman Thayer), 139–40 (Judge Davis). But
cf. id. 78–79 (Rep. Shellabarger, Civil Rights Bill merely secures equality except to the ex-
tent that citizenship is involved in it).
27
E.g., CONG. GLOBE, 39th Cong., 1st Sess. 783 (1866) (statement of Rep. Ward); id. at 911
(Rep. Cullom rejecting “the ancient order of things, when liberty of speech was abridged,
and the bludgeon used to silence the voice eloquently pleading for the oppressed of the
land”); id. at 1013 (Rep. Plants noting the pre-War suppression of speech: “no man could
utter the simplest truths but at the risk of his life”); id. at 586 (Rep. Donnelly referring to
“the old reign of terror” in the South).
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1387
the newly freed slaves and returned them to a state of semi-slavery.
For example, a local code in Louisiana prohibited a “negro” from
passing within the limits of the parish without written permission
from his employer; prohibited absence from the employer’s premises
after 10 p.m. without written permission; prohibited “negroes” from
renting or keeping a house within the parish; required them to be in
“regular service of some white person,” and banned them from bar-
tering or exchanging merchandise without written permission of
their employers.
28
Provisions such as these have been widely noted,
even in decisions of the U.S. Supreme Court.
29
But the Codes often went beyond racial discrimination. They also
abridged, for Americans of African descent, fundamental rights in
the Bill of Rights—if one assumes, as leading Republicans often did,
that these rights limited state and local governments. For example,
local codes banned “public meetings or congregations of ne-
groes . . . after sunset”; and special permission of the captain of the
(former slave) patrol was required for any meeting. “No negro shall
be permitted to preach, exhort, or otherwise declaim to congrega-
tions of colored people, without a special permission from the presi-
dent of the police jury . . . . No negro who is not in the military ser-
vice shall be allowed to carry fire-arms, or any kind of weapons, within
the parish, without the special written permission of his employ-
ers . . . indorsed by the nearest . . . chief of patrol.”
30
These provisions
violated the right to assemble, to freedom of speech, to bear arms (as
it was then widely understood), and to free exercise of religion—
assuming again (as many leading Republicans did) that these provi-
sions established personal, nationwide rights of American citizens
that all states should respect.
Republicans in Congress who framed the Fourteenth Amendment
in 1866 saw another equally troubling aspect of the rebirth of slavery.
They saw a rebirth of “private” violence in the South aimed at sup-
pressing political opinion. “Freedom of speech,” lamented one con-
28
See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 516–17 (1866) (setting forth an ordinance of
Opelousas, Louisiana); W
ALTER L. FLEMING, 1 DOCUMENTARY HISTORY OF
RECONSTRUCTION: POLITICAL, MILITARY, SOCIAL, RELIGIOUS, EDUCATIONAL, &
INDUSTRIAL, 1865 TO THE PRESENT TIME 279–81 (1906) (setting forth an ordinance of St.
Landry Parish, Louisiana).
29
See The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 70 (1873) (describing Black Codes,
but omitting provisions that would violate the Bill of Rights if binding on state and local
governments).
30
See FLEMING, supra note 28, at 279–81 (setting forth an ordinance of St. Landry Parish,
Louisiana); see also C
ONG. GLOBE, 39th Cong., 1st Sess. 516–17 (1866) (setting forth an
ordinance of Opelousas, Louisiana).
1388 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
gressman, “as of old, is a mockery.”
31
Others made similar observa-
tions.
II.
ENFORCING THE THIRTEENTH AMENDMENT: THE CIVIL RIGHTS ACT
OF
1866
In response to the Black Codes, Republicans in Congress passed
the Civil Rights Act of 1866. The Act provided that all persons born
in the United States were citizens of the United States and of the state
in which they resided.
[S]uch citizens, of every race and color . . . shall have the same right, in
every State and Territory in the United States, to make and enforce con-
tracts, to sue, be parties, and give evidence, to inherit, purchase, lease,
sell, hold, and convey real and personal property, and to full and equal
benefit of all laws and proceedings for the security of person and property, as is en-
joyed by white citizens . . . .
32
Democrats immediately attacked the Civil Rights Act as unconsti-
tutional. Republican supporters cited the Thirteenth Amendment
and its Enforcement Clause. As many Republicans saw it, by abolish-
ing slavery, the Amendment had conferred liberty on the slave.
Slaves were now citizens, entitled to all the rights of American citi-
zens.
33
The Black Codes were attempting to deprive the newly freed
slaves of liberty. By this view, the Thirteenth Amendment not only
ended slavery in name, it also empowered Congress to stamp out the
badges and incidents of slavery. Because the Black Codes imposed
badges and incidents of slavery on the newly freed slaves, Congress
could nullify them. Republicans faced a counter-argument: North-
ern states that did not have slavery had sometimes imposed these dis-
abilities on free Americans of African descent.
34
Leading Republicans cited other constitutional justifications as
well. James Wilson, Chairman of the Judiciary Committee in the
House, said the Act was supported by the power of Congress to en-
force the guarantees of liberty and property in the Fifth Amend-
ment.
35
Finally, some leading Republicans cited the interstate Privi-
leges and Immunities Clause—reading it expansively to protect both
31
CONG. GLOBE, 39TH Cong., 1st Sess. 783 (1866) (statement of Rep. Ward).
32
The Civil Rights Act of 1866, ch. 31, 14 STAT. 27 (emphasis added).
33
See generally CURTIS, NO STATE SHALL ABRIDGE, supra note 2, at 71–83 (detailing the de-
bate on the Civil Rights Act).
34
Id.
35
Id. at 79–80 (Rep. Wilson and Rep. Thayer).
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1389
fundamental national rights including those in the Bill of Rights and
equality to state-created rights.
36
III.
THE FOURTEENTH AMENDMENT
Section 1 of the Fourteenth Amendment (minus the Citizenship
Clause which was added in the Senate) was drafted by Congressman
John A. Bingham, a centrist anti-slavery congressman from Ohio.
The Amendment made all persons born or naturalized in the United
States citizens of the United States and of the state in which they re-
sided. The Amendment continued: “[n]o State shall make or en-
force any law which shall abridge the privileges or immunities of citi-
zens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.”
37
The Bill of Rights question discussed below is central to congres-
sional power to enforce the Fourteenth Amendment. The rights
Congress can enforce under Section 5 of the Amendment depend in
part of what guarantees of liberty the Amendment contains.
An earlier version of the Bingham amendment was in a different
form. It provided, “[t]he Congress shall have power to make all laws
which shall be necessary and proper to secure to the citizens of each
state all privileges and immunities of citizens in the several states; and
to all persons in the several states equal protection in the rights of
life, liberty, and property.”
38
Bingham, like a number of his col-
leagues, had read the Article IV Privileges and Immunities Clause as
containing an ellipsis. As he read the Clause, it provided that “[t]he
Citizens of each State shall be entitled to all Privileges and Immuni-
ties of Citizens [of the United States] in the several States.”
39
For him
and others, the privileges and immunities of citizens of the United
States were all rights shared by all citizens of the United States; these
included, but were not limited to, the rights in the Bill of Rights.
40
Bingham explained that his first version of the Fourteenth
Amendment gave Congress the power to enforce the Bill of Rights.
Enforcement was required because “this immortal bill of rights em-
36
See id. at 73–78 (Rep. Lawrence and Sen. Trumbull).
37
U.S. CONST. amend. XIV.
38
CURTIS, NO STATE SHALL ABRIDGE, supra note 2, at 57.
39
U.S. CONST. art. IV, § 2.
40
CURTIS, NO STATE SHALL ABRIDGE, supra note 2, at 62 (describing Bingham’s ellipsis read-
ing and his discussion of the constitutionality of Oregon’s proposed constitution).
1390 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
bodied in the Constitution, rested for its execution and enforcement
hitherto on the fidelity of the States.”
41
The early version of Bingham’s amendment received substantial
support from Republicans, but it also encountered significant opposi-
tion. One leading critic, Congressman Hale, a New York Republican,
focused on the equal protection provision. Hale thought states were
already required to obey the Bill of Rights. However, he believed that
the equal protection provision would allow the federal government to
legislate on virtually all subjects previously reserved to the states—
such as, for example, the rights of married women. This he found
too great an incursion of principles of federalism.
42
Bingham defended his original proposal as needed to enforce the
guarantees of the Bill of Rights. He explained that in Barron v. Balti-
more the Supreme Court had held that the guarantees of the Bill of
Rights did not limit the states. That showed the necessity of his
amendment.
43
In another speech Bingham doubted that Congress
had the constitutional power to pass the Civil Rights Bill. He agreed
with those like James Wilson that the guarantees of the Bill of Rights
should be enforced and that the Civil Rights Bill was an effort to en-
force the Bill of Rights; but, unlike Wilson who supported the Civil
Rights Bill partly on that ground, Bingham insisted a constitutional
amendment was necessary to make that possible.
44
Congressman Giles Hotchkiss made a particularly influential
speech criticizing Bingham’s first version. He raised two objections
to Bingham’s early version. Like Congressman Hale, his federalism
concerns focused on the equal protection language, which he under-
stood to allow Congress to pass uniform and preempting laws
throughout the United States on the protection of life, liberty, and
property.
45
Hotchkiss had no objection to the privileges or immuni-
ties section; it was, he said, like the existing Constitution. But Hotch-
kiss understood the amendment to allow Congress to “establish uni-
form laws throughout the United States upon the subject named, the
protection of life, liberty, and property. I am unwilling that Congress
shall have any such power.”
46
Hotchkiss also had a second objection. The laws passed under the
proposed amendment could simply be wiped out by the next Con-
41
CONG. GLOBE, 39th Cong., 1st Sess. 1034 (1866) (statement of Rep. Bingham).
42
Id. at 1063–65 (statement of Rep. Hale).
43
Id. at 1089 (statement of Rep. Bingham).
44
Id. at 1291 (statement of Rep. Bingham); id. at 1294 (statement of Rep. Wilson).
45
Id. at 1095 (statement of Rep. Hotchkiss).
46
Id.
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1391
gress. “Now, I desire that the very privileges for which the gentleman
is contending shall be secured to the citizens; but I want them secured
by a constitutional amendment that legislation cannot override.
Then if the gentleman wishes to go further, and provide by laws of
Congress for the enforcement of these rights, I will go with him.”
47
Apparently returning to his focus on the equal protection provision,
Hotchkiss suggested, “[w]hy not provide by an amendment to the
Constitution that no State shall discriminate against any class of its
citizens; and let that amendment stand as part of the organic law of
the land, subject only to be defeated by another constitutional
amendment.”
48
Bingham’s first version was postponed and replaced
by the current version of Section 1.
When the (nearly) final version reached the Senate floor, Senator
Howard spoke on behalf of the Joint Committee in favor. He ex-
plained that he considered the Privileges or Immunities Clause very
important.
49
Howard said the privileges or immunities of citizens of the United
States would include those in the Article IV Privileges and Immunities
Clause
50
plus
the personal rights guarantied and secured by the first eight amendments
to the Constitution; such as the freedom of speech and of the press; the
right of the people peaceably to assemble and petition the Government
for a redress of grievances . . . ; the right to keep and bear arms; the right
to be exempted from the quartering of soldiers in a house without the
consent of the owner; the right to be exempt from unreasonable searches
and seizures . . . ; the right of an accused person to be informed of the
nature of the accusation against him, and his right to be tried by an im-
partial jury of the vicinage; and also the right . . . against cruel and un-
usual punishments.
51
Howard continued:
[T]here is no power given in the Constitution to enforce and to carry out
any of these guarantees. They are not powers granted by the Constitu-
tion to Congress, and of course do not come within the sweeping [neces-
sary and proper] clause of the Constitution . . . , they stand simply as a
bill of rights in the Constitution, without power on the part of Congress
to give them full effect; while at the same time the States are not re-
strained from violating the principles embraced in them except by their
own local constitutions . . . . The great object of the first section of this
47
Id. (emphasis added).
48
Id.
49
Id. at 2765 (statement of Sen. Howard).
50
Id.
51
Id.
1392 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
amendment is, therefore, to restrain the power of the States and compel
them at all times to respect these great fundamental guarantees.
52
Senator Howard, like House Judiciary Chairman Wilson,
53
described
rights in the Bill of Rights as fundamental rights (and as privileges).
He said that the lack of power to enforce was corrected by Section 5.
It provided “a direct affirmative delegation of power to Congress to
carry out all the principles of all these guarantees.”
54
In discussing the need for the amendment, Howard alluded to the
Barron decision without naming it. He noted that the “restriction
contained in the Constitution against the taking of private property
for public use without just compensation is not a restriction upon
State legislation, but applies only to the legislation of Congress.”
55
In his speech on the amendment, Bingham explained that it
would allow the Congress “to protect by national law all the privileges
and immunities of all citizens of the Republic and the inborn rights
of every person within its jurisdiction whenever the same shall be ab-
ridged or denied by the unconstitutional acts of any State.”
56
As an
example of the need for the provision, he cited past instances of state
injustice and oppression such as imposition of cruel and unusual pu-
nishments.
57
Much of the discussion of Section 1 was cryptic. Congressman
Farnsworth said the section changed things by only adding equal pro-
tection.
58
He must have assumed that states were already prohibited
from abridging rights in the Bill of Rights such as due process. A few
seem to have read the Privileges or Immunities Clause or the entire
first section as an anti-discrimination provision.
59
Some equated Section 1 with the Civil Rights Act, apparently also
assuming that the Act encompassed a federal standard of due proc-
ess.
60
The Civil Rights Act had guaranteed to all citizens the full and
52
Id. at 2765–66.
53
Id. at 1294 (statement of Rep. Wilson).
54
CONG. GLOBE, 39th Cong., 1st Sess. 2766 (1866) (statement of Sen. Howard).
55
Id. at 2765.
56
Id. at 2542 (statement of Rep. Bingham).
57
Id.
58
Id. at 2539 (statement of Rep. Farnsworth).
59
Id. at 2511 (statement of Rep. Eliot); id. at 2883 (statement of Rep. Latham stating: “the
‘civil rights bill’ . . . covers exactly the same ground as this amendment,” which could only
be true if the Civil Rights Act contained the Due Process Clause, in which it would not be
merely an anti-discrimination provision).
60
Cf. CONG. GLOBE, 39th Cong., 1st Sess. 2498 (1866) (statement of Rep. Bromall); id. at
1263 (statement of Rep. Bromall); id. at 2459 (statement of Rep. Stevens saying that it is
partly true that the Amendment secures the same things as the Civil Rights Bill, but a law
is repealable by a majority).
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1393
equal benefit of all laws and provisions for the security of person and
property as enjoyed by white citizens. The phrase, laws for the secu-
rity of person and property, had long been used to describe rights
such as those in the federal Bill of Rights. Some contemporaries read
the Civil Rights Act to protect Bill of Rights liberties. Senator Dixon,
for example, said the Civil Rights Act protected free speech through-
out the United States;
61
a Republican newspaper made a similar asser-
tion.
62
For historical questions, often the best we can achieve is a hy-
pothesis that fits the facts better than competing ones. A number of
methods of legal and historical interpretation support the hypothesis
that the privileges or immunities of citizens of the United States in-
cluded rights in the Bill of Rights. Again, the meaning of the Privi-
leges or Immunities Clause matters for congressional enforcement of
the Fourteenth Amendment because the Clause is part of what Con-
gress will be enforcing.
IV.
INTERPRETING PRIVILEGES OR IMMUNITIES
A. Textual Analysis
1. Contemporary Usage: Original Meaning
From the American Revolution through the framing of the Four-
teenth Amendment, fundamental rights such as those in the Bill of
Rights were repeatedly described as “privileges” and “immunities.”
There are hundreds of examples, including from the Zenger trial,
and from controversies over ratification of the Constitution, over the
Sedition Act, and over the free speech and press right to criticize sla-
very.
63
For present purposes one example will need to suffice. In
61
CONG. GLOBE, 39th Cong., 1st Sess. 2332 (1866) (statement of Sen. Dixon); Michael Kent
Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Cases
Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C.
L. REV.
1, 52 (1996). See generally id. at 51–65 (responding to “nothing but equality” readings of
Section 1).
62
STEPHEN P. HALBROOK, FREEDMEN, THE FOURTEENTH AMENDMENT, AND THE RIGHT TO
BEAR ARMS, 1866–1876, at 31 (1998) (quoting Editorial, NEW YORK EVENING POST, Apr. 7,
1866, at 2, col. 1: Civil Rights Act “seeks to provide a remedy . . . that there will be
no . . . attempts to prevent [‘colored men’] holding public assemblies, freely discussing
the question of their own disabilities, keeping fire-arms”).
63
See, e.g., CURTIS, NO STATE SHALL ABRIDGE, supra note 2, at 64–65 (pointing to the use of
the words privileges or immunities by William Penn, William Blackstone, and American
Revolutionaries); id. at 43 (pointing to usage by abolitionist legal theorist Joel Tiffany); id.
at 37–38 (describing usage by James Wilson, chairman of the Judiciary Committee in the
39th Congress). See generally Michael Kent Curtis, Historical Linguistics, Inkblots, and Life
1394 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
proposing the Bill of Rights to the first Congress, James Madison had
included guarantees of rights aimed against the states—for free press,
jury trial, and rights of conscience. Madison explained that states
were as likely to attack the “invaluable privileges” as the federal gov-
ernment was.
64
2. Technical Legal Meaning
In contrast to the way the Framers of the Bill of Rights, newspaper
commentators, framers of the Fourteenth Amendment, many con-
gressmen, and many others used the words “privileges” and “immuni-
ties,” one might insist on a technical legal meaning. The phrase “pri-
vileges or immunities of citizens of the United States” does not appear
elsewhere in the Constitution. Dred Scott however described each and
every constitutional right collectively as rights, privileges, and immu-
nities belonging to citizens of the United States.
65
Dred Scott used the
word “right” and the word “privilege” interchangeably, noting that
one “right” of citizens of the United States was the “privilege” of suing
in federal court.
66
Dred Scott also treated every constitutional right,
privilege, or immunity as belonging only to citizens of the United
States, a category that excluded all descendants of slaves.
67
Republi-
cans rejected that and the Fourteenth Amendment corrected that
holding. The word privilege was also a common way lawyers de-
scribed Bill of Rights liberties such a free speech and press. Under
After Death: The Privileges or Immunities of Citizens of the United States, 78 N.C. L. REV. 1071
(2000). Cf. C
URTIS, NO STATE SHALL ABRIDGE, supra note 2 at 199–200 (pointing to the
usage of the words “privileges or immunities” by the Court in Palko v. Connecticut, 302 U.S
319, 325–26 (1937), to describe all the rights in the Bill of Rights, while holding that not
all limited the states).
64
BERNARD SCHWARTZ, 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1033 (Leon
Friedman et al. eds., 1971).
65
Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 403 (1856) (“The question is simply this:
Can a negro, whose ancestors were imported into this country, and sold as slaves, [be-
come part of the political community created by the Constitution], and as such become
entitled to all the rights, and privileges, and immunities, guarantied by that instrument to
the citizen? One of which rights is the privilege of suing in a court of the United
States . . . .”).
66
Id. For additional uses of the phrase, sometimes referring to national constitutional
rights,
see id. at 403–06, 411–13, 415–16, 425–26, 449.
67
Id. at 411 (stating that the blessings of liberty and the powers granted and the privileges
secured to the citizen were reserved to citizens of the United States, a class that excluded
Americans of African descent—free or slave—who were descended from slaves). On the
meaning of the Fourteenth Amendment in light of prior law, see William Winslow Cross-
key, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority,
22
U. CHI. L. REV. 1, 4–7 (1954). The path of better understanding the application of the
Bill of Rights to the states was blazed by Professor Crosskey.
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1395
Barron v. Baltimore
68
states had been free to abridge these privileges
and immunities. “No state shall” were the words Barron said should
be used to change that. So the argument for the legal meaning of
the Fourteenth Amendment is also strong—no State shall abridge the
privileges or immunities [rights] of [shared by all]
citizens of the
United States [all their constitutional rights].
B. Context or Inter-textual Analysis
When the Framers of the original Constitution put limits on the
states in the interest of liberty in Article I, Section 10, they used the
“no State shall” language.
69
When they wanted to strongly protect a
liberty from being denied in the First Amendment, they prohibited
abridging it.
70
C. Precedent
Barron v. Baltimore
71
held the Bill of Rights did not limit the states.
Had the framers intended the rights to limit the states, Chief Justice
Marshall said they would have used the “no State shall” language.
The Amendment did use exactly that language. John Bingham ex-
plained in 1871 that he used the words “no State shall” to comply
with Barron’s formula.
72
D. Historic Grievances
Discrimination against Americans of African descent was a sub-
stantial part of the history leading up to the Fourteenth Amendment,
but only one part. So were denials of free speech, press, and free ex-
ercise of religion (to critics of slavery), and searches and cruel pun-
ishments to enforce suppression of speech. One of the nation’s two
major political parties was unable to campaign or even exist in the
South. Having been targeted, Republicans were keenly aware of the
denials of speech and other liberties in the interest of slavery. These
grievances were repeatedly discussed in the 38th Congress that abol-
ished slavery and in the 39th Congress that framed the Fourteenth
68
Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833).
69
U.S. CONST. art. I, § 10.
70
U.S. CONST. amend. I.
71
Barron, 32 U.S. at 250.
72
CONG. GLOBE, 42d Cong., 1st Sess. app. 84 (1871) (statement of Rep. Bingham explain-
ing that he re-read Barron and followed its suggestion to use the same—“no State shall”—
form used by the Framers of the original Constitution when they set limits on the states).
1396 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
Amendment.
73
The need to protect free speech and constitutional
rights of American citizens was commonly mentioned in the election
campaign of 1866.
74
The 1866 congressional election was a referen-
dum on the Fourteenth Amendment as a basis for reconstruction.
E. Original Understandings
Many Congressmen and other opinion leaders in 1866 described
the Fourteenth Amendment as protecting Americans in all their con-
stitutional rights or in all the rights of American citizens.
75
As noted
above, some instead described the Amendment as equivalent to the
Civil Rights Act, a claim that assumes that at least one Bill of Rights
liberty (due process) was subsumed in the Civil Rights Act’s protec-
tions. No one explicitly contradicted Congressman Bingham’s or
Senator Howard’s statements indicating that the Amendment would
protect Bill of Rights liberties from the states. In the 1871 speech
where he explained why he changed the form of the Amendment to
comply with Barron, Bingham also explained that the privileges or
immunities were chiefly contained in the first eight Amendments,
which he proceeded to read word for word.
76
Of course, that leaves open the question of what the guarantees
included in privileges or immunities, such as free speech and free
press, meant to Bingham, other framers, and people in 1866–1868.
History sheds some light on that subject. As to free speech and press,
for example, the rich history of free speech controversies from 1798
through to Civil War (a history often alluded to in the 38th and 39th
Congresses) negates the idea that the guarantees were thought mere-
ly to protect against prior restraint. The idea that supporters of the
Amendment would agree that one could not be restrained from pub-
lishing an anti-slavery book or newspaper but could be imprisoned,
whipped, or hung after publication is belied by this history.
77
73
E.g., CURTIS, NO STATE SHALL ABRIDGE, supra note 2, at 36–56; CURTIS, FREE SPEECH, supra
note 2, at 271–99, 357–72.
74
CURTIS, NO STATE SHALL ABRIDGE, supra note 2, at 131–53.
75
Id. at 89–90 (including some descriptions of Section 1); 131–33 (including somewhat di-
vergent ones); 140–45 (including discussion in the 1866 campaign).
76
CONG. GLOBE, 42d Cong., 1st Sess. app. 84 (1871) (statement of Rep. Bingham).
77
See, e.g., CURTIS, FREE SPEECH, supra note 2 at 271–299, 357–383 (showing that Republican
concerns about suppression of free speech in the South by law were focused on subse-
quent punishment, not prior restraint).
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1397
F. Structure
Representative government requires free speech, free press, and
the right to assemble and associate for political purposes, as well as,
of course, a meaningful and protected right to vote. The other guar-
antees of the Bill of Rights also reinforce personal liberty and politi-
cal freedom. As Professor Calabresi has wisely noted,
78
a racial caste
system is essentially totalitarian. Robust protection of the rights in
the Bill of Rights is incompatible with a totalitarian system. Both sla-
very and a racial caste system are severely threatened by the freedoms
in the Bill of Rights.
Popular sovereignty is a basic structural principle of American
constitutional government.
79
The Constitution should be interpreted
to support its basic structure and to provide basic guarantees in order
for representative government to work. In the years leading up to the
Civil War, the South became a closed society. Southern states (and
the Kansas territory) and mobs
suppressed speech, press, assembly,
religious expression, and political association and expression on the
central issue facing the United States in the years leading up to the
Civil War. That history shows how important these guarantees are for
a healthy democracy. A healthy democracy is crucial so disputes can
be settled by peaceful means, not by civil war. Rights of speech, press,
assembly, political association, and voting were attacked again by ter-
rorism during Reconstruction.
V.
RECONSTRUCTION AND POLITICAL TERROR
Except for Tennessee, which was readmitted to Congress, the
Southern states at first rejected the Fourteenth Amendment. Con-
gress established military Reconstruction. Before readmission to
Congress the states were required to ratify the Fourteenth Amend-
ment and to establish constitutions acceptable to Congress. Congress
required the former Confederate States to elect state constitutional
conventions by manhood suffrage—so it required enfranchisement of
recently freed slaves.
80
Former rebels who had taken an oath to sup-
78
Steven G. Calabresi, oral presentation at the National Constitution Center evening pro-
gram, Nov. 14, 2008.
79
See, e.g., U.S. CONST. pmbl. (“We the People of the United States . . . do ordain and estab-
lish this Constitution for the United States of America.”); Marbury v. Madison, 5 U.S. (1
Cranch) 137, 176 (1803) (“That the people have an original right to establish, for their
future government, such principles as, in their opinion, shall most conduce to their own
happiness, is the basis, on which the whole American fabric has been erected.”).
80
See, e.g., Act of Apr. 10, 1870, ch. 17, 16 Stat. 40.
1398 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
port the Constitution and who had supported the Confederacy were
not allowed to vote for the Constitutional Conventions. The new
state constitutions enfranchised the newly freed slaves. Most of the
new state constitutions also enfranchised all former rebels.
81
Under
Section 3 of the Fourteenth Amendment, former rebels who had tak-
en and broken an oath of allegiance to the United States (most of the
pre-civil War political elite) were disqualified to hold state or federal
office until Congress removed the disability. Congress removed the
disability in 1872.
82
A. The Fifteenth Amendment
The Fifteenth Amendment was proposed by the Congress in 1868
and ratified in 1870. It provided that “[t]he right of citizens of the
United States to vote shall not be denied or abridged by the United
States or by any state on account of race, color, or previous condition
of servitude.”
83
Republican critics of the Amendment favored broader guarantees
of the right to vote, something approaching universal male suffrage.
They presciently warned that the Fifteenth Amendment could be
evaded by all sorts of methods that disfranchised people on a basis
other than race (literacy tests for example)—but that had the effect of
disfranchising blacks.
84
B. Terror as a Political Weapon
For a time, multi-racial democracy worked. A white-black Repub-
lican political coalition controlled Southern states.
85
But, the Ku Klux
Klan (“KKK”) and similar organizations soon undertook a campaign
of political terror against white and black Republicans. Congress re-
sponded with acts designed to enforce the Fourteenth and Fifteenth
Amendments.
86
One stark fact emerges from a study of Reconstruction and the
debates on the Ku Klux Klan Enforcement Act of 1871. The Klan was
targeting Republicans, black and white. The victims of its political
81
FONER, supra note 4, at 276–80; RICHARD B. MORRIS, ENCYCLOPEDIA OF AMERICAN HISTORY
246–49 (1953); Chin & Wagner, supra note 2, at 80, 82.
82
FONER, supra note 4, at 504.
83
U.S. Const. amend. XV.
84
See ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN
THE
UNITED STATES 94–102 (2000) (describing framing debates and the failure to include
a broader guarantee of the right to vote in the Fifteenth Amendment).
85
FONER, supra note 4, at 587; Chin & Wagner, supra note 2, at 82–83.
86
Act of May 31, 1870, ch. 114 16 Stat. 140; Act of Apr. 20, 1871, ch. 22, 17 Stat. 13.
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1399
terrorism were people who led or supported the Republican Party in
the South. As a result, simple protection against racially motivated
violence would have been inadequate—important, but not sufficient.
Requiring racial motivation was problematic because blacks were of-
ten targeted because of their political activity. In addition, Americans of
African descent would become far more vulnerable without their
white allies and without a bi-racial Republican party. Once their op-
ponents captured state government, they became extremely vulner-
able.
In the debates on the 1871 KKK act, Senator Ames of Mississippi
recounted attacks on Republican speakers and meetings in Missis-
sippi. It was, he said, impossible to advocate Republicans’ principles
in some counties.
87
Ames recounted a politically inspired riot in Me-
ridian, Mississippi. The murder victims included a white Republican
judge who supported black rights.
88
In Louisiana, Ames noted, there
had been 859 political murders of Republicans. No murders were
prosecuted. “[W]hat political party at the North can retain its vigor
and lose yearly in each State by murder eight hundred of its best and
most reliable workers?”
89
He warned that “[f]uture contests for party
supremacy will be but repetitions of the past; and unless the Govern-
ment interferes hundreds and hundreds of men are yet to be made
martyrs for opinion’s sake.”
90
Ames recognized that while whites were also victims, Americans of
African descent had the most to lose. “And when this ‘white man’s
party’ shall dominate, should it ever, you will see class legislation so
harsh and so cruel as . . . to force the colored people into a serfdom
worse than slavery . . . .”
91
Witness after witness in Congressional
hearings described shootings and beatings designed to “run . . . off
[those who] voted the Radical ticket.”
92
Senator Hoar described
“large numbers of our fellow-citizens . . . deprived of the enjoyment
of the fundamental rights of citizens.” The deprivations occurred be-
cause of loyalty to the country and “because [of] their opinions on
questions of public interest.”
93
Violence was intensely political.
Representative Perry described attacks against politically active
blacks and their white allies:
87
CONG. GLOBE, 42d Cong., 1st Sess. 196 (1871).
88
Id.
89
Id. at 197.
90
Id.
91
Id.
92
Id. at 321 (statement of Rep. Stoughton, recounting testimony before Congress; question
by Senator Nye).
93
Id. at 332 (statement of Sen. Hoar).
1400 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
The aim appears to be to put them under fear, so they will be silent when
freemen should speak, and will stay at home when freemen should be at
the polls; or, failing in that, to compel them to abandon citizenship in
that part of the country; or, failing in that, to murder and mutilate them,
disperse their families, burn their houses, and steal or destroy their
property.
94
Speaker after speaker, quoting witness after witness, told the same
story: violence was aimed at whites and blacks as a means to regain
political dominance.
Representative Rainey of South Carolina, the first American of Af-
rican descent elected to the House of Representatives, said that if
“the negroes . . . would only cast their votes in the interest of the De-
mocratic party, all open measures against them would be immediately
suspended, and their rights, as American citizens, recognized.”
95
But
he said, “we love freedom more, vastly more, than slavery.”
96
C. Enforcement Acts
The Enforcement Act of 1870
97
focused mainly on attempting to
protect Fifteenth Amendment rights. It reached both state actors
and private persons who interfered with the right to vote of those
protected by the Fifteenth Amendment.
98
Section 5 punished any
person who
shall prevent, hinder, control, or intimidate, or shall attempt to prevent,
hinder, control, or intimidate, any person from exercising . . . the right
of suffrage, to whom the right of suffrage is . . . guaranteed by the fif-
teenth amendment to the Constitution of the United States, by means of
bribery, threats, or threats of depriving such person of employment or
occupation [or other specified means of economic coercion].
99
The section failed to require that the intimidation be because of race,
and indictments drawn without those allegations proved problematic.
As to the sections dealing with private actors, Democratic senators
and representatives insisted that the Fifteenth Amendment was lim-
ited to state action. By this view, private action directed at intimidat-
ing and punishing voters was not within the scope of the Amend-
ment.
100
Though state action was undoubtedly a problem, a major
94
Id. at app. 78 (statement of Rep. Perry).
95
Id. at 394 (statement of Rep. Rainey).
96
Id.
97
Act of May 31, 1870, ch 114, 16 Stat. 140 (1870).
98
Id. at §§ 1–5.
99
Id. at § 5.
100
See, e.g., CONG. GLOBE, 41st Cong., 2d. Sess. app. 353–54 (1870) (statement of Sen. Ham-
ilton); id. at app. 472 (statement of Sen. Casserly).
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1401
problem facing Republicans in the South was private action designed
to intimidate voters.
The 1870 Act also had a provision seeking to enforce the Four-
teenth Amendment. Section 6 punished
two or more persons [who] band or conspire together, or go in disguise
upon the public highway, or upon the premises of another, with intent to
violate any provision of this act, or to injure, oppress, threaten, or intimi-
date any citizens with intent to prevent or hinder his free exercise and
enjoyment of any right or privilege granted or secured to him by the
Constitution . . . of the United States, or because of his having exercised
the same.
101
The most extensive debate on constitutional power to reach pri-
vate violence came in connection with the 1871 Act to Enforce the
Fourteenth Amendment.
102
Since a major problem was “private” po-
litical violence, the act had sections reaching violence by “private”
people aimed at private persons. But it also reached state actors: any
person,
who, under color of any law, statute, ordinance, regulation, custom, or
usage of any State, shall subject, or cause to be subjected, any person
within the jurisdiction of the United States to the deprivation of any
rights, privileges, or immunities secured by the Constitution of the Unit-
ed States . . . shall be liable to the party injured in any action at law or suit
in equity.
103
Section 2 reached private persons who conspire or
go in disguise upon the public highway or upon the premises of another
for the purposes, either directly or indirectly, of depriving any person or
class of persons of the equal protection of the laws, or equal privileges or
immunities under the laws, or for the purpose of preventing or hinder-
ing the constituted authorities of any State from giving or securing to all
persons within such State the equal protection of the laws, or shall con-
spire together for the purpose of in any manner impeding, [etc.] the due
and equal protection of the laws.
104
Violators were subject to fine and imprisonment. In addition, in case
any person acted in furtherance of the conspiracy set out above,
“whereby any person shall be injured in his person or property, or
deprived of having and exercising any right or privilege of a citizen of
101
Act of May 31, 1870, ch 114, 16 Stat. 140 § 6 (1870).
102
Act of Apr. 20, 1871. ch. 22, 17 Stat. 13 (1871).
103
Id. at § 1.
104
Id. at § 2. Other parts of the Act reached persons acting to interfere with federal office
holders, federal jurors, or grant jurors. It also reached force or intimidation designed to
prevent any citizen of the United States lawfully entitled to vote from voting because of
electoral support or advocacy in connection with any federal office.
1402 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
the United States,” the person injured was given an action for dam-
ages.
105
Sections of the anti-KKK act of 1871 allowed the president to use
the military to enforce the law where ordinary law enforcement was
not sufficient.
106
These controversial provisions were copied from the
Fugitive Slave Act of 1850.
D. Congressional Debate on Enforcement of the Fourteenth Amendment
Provisions punishing private persons who interfered with federal
officers and functions and those that reached persons acting under
color of law were less controversial. The sections of the Act that pro-
voked the most debate and disagreement (even among Republicans)
were those that aimed at private persons who used political violence
against other private persons—the Klansmen who beat, murdered,
and abused black and white Republicans.
Democrats (and a few Republicans) embraced the state action syl-
logism
107
: the Fourteenth Amendment only prohibited state action;
private Klansmen were not the state; therefore the enforcement of
the Amendment could not reach private persons. By this view, the
Fourteenth Amendment (and the Fifteenth) did not create rights.
They only imposed limits on government. Since people had no rights
under these Amendments, there were no federal rights to enforce.
108
Republicans gave several responses.
Representative Samuel Shellabarger of Ohio defended an early
version of the 1871 Act which protected privileges or immunities of
citizens of the United States.
[W]hen the United States inserted into its Constitution . . . that the peo-
ple of this country, born or naturalized therein, are citizens of the United
States and of the States also in which they reside, and that Congress shall
have power to enforce by appropriate legislation the requirement that
their privileges and immunities as citizens should not be abridged, it was
done for a purpose, and that purpose was that the United States thereby
were authorized to directly protect and defend throughout the United
States those privileges and immunities which are in their nature ‘funda-
mental’ . . . and which inhere and belong of right to the citizenship of all
free Governments. The making of them United States citizens and au-
thorizing Congress by appropriate law to protect that citizenship gave
105
Id.
106
Id. at § 4.
107
CONG. GLOBE, 42d Cong., 1st Sess. app. 114 (1871) (statement of Rep. Farnsworth per-
taining to the Fourteenth Amendment); id. at app. 208 (statement of Rep. Blair).
108
Id.; see Cruikshank v. United States, 92 U.S. 542, 553–55 (1875) (containing a judicial
statement of the state action syllogism).
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1403
Congress power to legislate directly for the enforcement of such rights as
are fundamental elements of citizenship.
109
Shellabarger then cited Corfield v. Coryell
110
as to privileges and immu-
nities under Article IV. That case that seemed to give those privileges
a fundamental rights reading.
[W]hat are the privileges and immunities of citizens of the several States?
We feel no hesitation in confining these expressions to those privileges
and immunities which are in their nature fundamental, which belong of
right to the citizens of all free Governments. . . . They may . . . be all
comprehended under the following general heads: protection by the
Government; . . . the enjoyment of life and liberty, with the right to ac-
quire and possess property of every kind, and to pursue and obtain hap-
piness and safety, subject nevertheless to such restrains as the Govern-
ment may justly prescribe for the general good of the whole.
111
To respond to the state action syllogism Shellabarger compared
the Fugitive Slave Clause to the first Section of the Fourteenth
Amendment:
No person held to service of labor in one State, under the laws thereof,
escaping into another, shall, in consequence of any law or regulation
therein, be discharged from such service or labor, but shall be delivered
up on the claim of the party to whom such service or labor may be due.
112
“Now notice,” Shellabarger said, “that this provision is in restraint of
the power of the States, just as the first section of the fourteenth
amendment is in its last three clauses:
No State shall make or enforce any law which shall abridge the privi-
leges or immunities of citizens of the United States.”
113
Both Clauses, he said, were prohibitions on the states, withholding
power from the states. They were similar except that the Fugitive
Slave Clause had no enforcement clause (in contrast to Section 5 of
the Fourteenth Amendment). The Fugitive Slave Clause was “merely
a negation upon the power of the States, and an abstract statement
that the fugitive shall be delivered upon claim.”
114
Yet to enforce this
negative limit on the states, in 1850 Congress made it a crime for pri-
vate persons to assist or harbor an escaping slave and the Supreme
109
CONG. GLOBE, 42d Cong., 1st Sess. app. 69 (1871) (statement of Rep. Shellabarger).
110
Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3230).
111
CONG. GLOBE, 42d Cong., 1st Sess. app. 69 (1871) (quoting Corfield v. Coryell, 6 F. Cas. at
551).
112
Id. at app. 70.
113
Id.
114
Id.
1404 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
Court held that the Fugitive Slave Law of 1850 was constitutional in
all respects.
115
The analogy suggested by Shellabarger is persuasive. Stripped of
its euphemisms the Fugitive Slave Clause provided:
No [slave] held to service or labor in one State, under the laws thereof,
escaping into another shall, in consequence of any law or regulation
therein, be discharged from such [slavery], but shall be delivered up on
the claim of the [slave owner].
116
The clause would mean the same thing had it said:
No state shall by any law or regulation free any slave escaping from an-
other state, but the slave shall be delivered upon the claim of the slave
owner.
From a limit on the states in the Fugitive Slave Clause, the Court
in Prigg v. Pennsylvania implied a right of the slave owner to get the
slave back. From that right, it implied the power of Congress to cre-
ate a remedy reaching private persons, not just state actors. As Rep-
resentative Shellabarger explained:
[I]n 1850 . . . [you] legislated a criminal code; you made the harboring
of a slave, you made the refusal to return the slave . . . criminal and in-
dictable in the courts of the United States, and all in enforcement of a
provision purely negative as to the States . . . . You did everything that is
done by this bill . . . . And yet that legislation . . . stood for fifty years. It
has stood affirmed, from Prigg vs. Pennsylvania down through the years
. . . in every court of the United States; affirmed upon that mere negation
upon the power of the States [that] it was the right of Congress to en-
force its provisions by affirmative law, both civil and criminal . . . .
And . . . shall it be endured now that those decisions which were invoked
and sustained in favor of bondage shall be stricken down when first
called upon and invoked in behalf of human rights and American citi-
zenship? . . . So long as your Constitution continues to guaranty the
rights of American citizenship, so long you can . . . enforce these rights of
American citizenship.
117
Shellabarger’s definition of privileges and immunities did not ex-
clude Bill of Rights liberties, but also did not explicitly include them.
To critics, the invocation of Corfield seemed to give the federal gov-
115
Id. (statement of Rep. Shellabarger); see Prigg v. Pennsylvania, 41 U.S. (16 Pet) 539
(1842) (citing the Fugitive Slave Act of 1793). Section 4 of that Act punished persons
who knowingly harbored or concealed a fugitive slave or willfully obstructed the claimant
in recapturing his or her slave. Fugitive Slave Act of 1793, ch. 7, sec. 1, 1 Stat. 302 (1793).
See also Ableman v. Booth, 62 U.S. (21 How.) 506, 526 (1859) (proclaiming the 1850 Fugi-
tive Slave Act constitutional in all respects). The 1850 statute punished persons who
knowingly directly or indirectly assisted a fugitive slave in escaping or harbored or con-
cealed the slave. Fugitive Slave Act of 1850, ch. 60, sec. 7, 9 Stat. 462, 464 (1850).
116
U.S. CONST. art. IV, § 2.
117
CONG. GLOBE, 42d Cong., 1st Sess. app. 70 (1871) (statement of Rep. Shellabarger).
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1405
ernment broad power to legislate over subjects of traditional state
concern. Shellabarger noted one limit: Congress was legislating only
when the “private” crime was motivated by the intent to deprive citi-
zens of their privileges or immunities.
118
John A. Bingham’s explanation of the privileges or immunities of
citizens of the United States was different. They were chiefly those set
forth in the Bill of Rights. To identify them Bingham read word for
word the first eight Amendments to the Constitution.
119
Before the
Fourteenth Amendment, Bingham noted, “the State could deny to
any citizen the right of trial by jury, and it was done. Before that the
State could abridge the freedom of the press, and it was done in half
of the States of the Union.”
120
Bingham had earlier embraced a fundamental rights reading of
Article IV. But in 1869 in Paul v. Virginia,
121
the Supreme Court had
treated the Article IV privileges and immunities as protecting out-of-
staters from discrimination in rights the state provided to its own citi-
zens. Bingham now read Corfield the same way. He said Corfield had
“only held that in civil rights the State could not refuse to extend to
citizens of other States the same general rights secured to its own.”
122
But
other and different privileges and immunities than those to which a citi-
zen of a State was entitled are secured by the provision of the fourteenth
article, that no State shall abridge the privileges and immunities of citi-
zens of the United States, which are defined in the eight articles of
amendment.
123
Bingham said that Congress could pass “laws for enforcing all the
privileges and immunities of the citizens of the United States, as gua-
rantied by the amended Constitution and expressly enumerated in
the Constitution.”
124
These guarantees were essential to American na-
tionality. “The people of the United States are entitled to have their
rights guarantied to them by the Constitution of the United States,
protected by national law.”
125
What, Bingham asked, would the gov-
ernment be worth if it “must rely upon States to execute its grants of
power, its limitations of power upon States and its express guarantees
118
Id. at app. 69–70.
119
Id. at app. 84 (statement of Rep. Bingham).
120
Id.
121
Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180–81 (1869).
122
CONG. GLOBE, 42d Cong., 1st Sess. app. 84 (1871) (statement of Rep. Bingham).
123
Id.
124
Id.
125
Id. at app. 85.
1406 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
of rights to the people.”
126
Congressional statutes could be preventa-
tive as well as remedial. “Why not in advance provide against the de-
nial of rights by States, whether the denial be acts of omission or
commission, as well as against the unlawful acts of combinations and
conspiracies against the rights of the people?”
127
For Bingham, con-
gressional power to protect the rights of citizens did not exclude the
states: “the States have concurrent power to enforce the Constitu-
tion.”
128
Congress had previously enforced the negative provisions of the
Fifteenth Amendment. “What difference is there between enforcing
the negative provision of the fifteenth amendment and enforcing a
negative provision of the thirteenth and fourteenth amendments?
There is no difference . . . .”
129
For Bingham the rights in the Bill of
Rights, now secured against federal or state invasion, were rights of
American citizens. They were national rights Congress could protect.
Bingham was faced with the claim that the change in the form of
the Amendment showed that federal enforcement of the rights
against private individuals in the states was foreclosed. He explained
that he had changed the form of his Amendment to comply with the
way Chief Justice Marshall had said limits on state power would have
had to be crafted to prevent state violation of Bill of Rights liberties.
130
Marshall had said that “no State shall” language was necessary to es-
tablish a limit on the states.
131
For Bingham, the revised Amendment
was stronger than its predecessor, because it now explicitly limited
the states and allowed congressional enforcement.
Other congressmen also said that privileges or immunities in-
cluded those in the Bill of Rights. Congressman Dawes noted that in
addition to privileges and immunities under the original Constitu-
tion, other privileges or immunities were added. To illustrate these
privileges or immunities Congressman Dawes cited one-by-one the
guarantees of the Bill of Rights. Then he noted the immunity from
slavery under the Thirteenth Amendment. After listing all these pri-
vileges and immunities in the original Constitution, the Bill of Rights,
126
Id.
127
Id.
128
Id.
129
Id.
130
Id. at app. 84 (“In reëxamining the case of Barron . . . I noted and apprehended as I nev-
er did before, certain words in that opinion of Marshall. . . . ‘Had the framers of these
amendments intended them to be limitations on the power of the Sate governments they
would have imitated the framers of the original Constitution and have expressed that in-
tention [by using “no State shall”].’”.
131
Id. at app. 83–84.
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1407
and the Thirteenth Amendment, Dawes referred to the Fourteenth.
“Still further, every person born on the soil was made a citizen and
clothed with them all.”
132
Dawes clearly thought the Bill of Rights guarantees did not ex-
haust the privileges or immunities of American citizens. In any case,
however, whoever “invades, trenches upon, or impairs one iota or tit-
tle of the least of them, to that extent trenches upon the Constitution
and laws of the United States, and this Constitution authorizes us to
bring him before the courts to answer therefor.”
133
Representative Hoar also said that privileges or immunities “com-
prehend[] all the privileges and immunities declared to belong to
the citizen by the Constitution itself” plus “those . . . which all repub-
lican writers of authority agree in declaring fundamental and essen-
tial to citizenship.”
134
He cited and relied also on Corfield.
135
Hoar also relied on the guarantee of a republican form of gov-
ernment. A government might formally be republican, with all the
requisite guarantees in its constitution and laws, but still fail to be a
republican government. In South Carolina, he said, more than three-
fifths of the population was Negroes, and still a larger number were
Republicans:
Now, suppose that in that State, with its constitution providing for trial by
jury, providing an independent judiciary, and providing for equality of
civil rights, providing for the right to vote and to hold office of every citi-
zen, there should be a conspiracy upon the part of a certain portion of
the people that by intimidation, by murder, by outrage, this majority of
the people dare not exercise those rights which their State constitution
undertakes to declare for them.
136
In that case, Hoar believed that Congress could and should act.
According to Hoar, Congress could not interfere to remedy ordi-
nary imperfections. But “wherever these evils have attained such a
degree as amounts to the destruction, to the overthrow, to the denial
to large classes of the people of the blessings of republican govern-
ment altogether,” Congress should act to protect the rights denied to
a large class of citizens.
137
Congress was the judge of the necessity.
The Equal Protection Clause was an additional source of congres-
sional power. When states systematically failed to secure equal pro-
132
Id. at 475–76 (statement of Rep. Dawes).
133
Id. at 476.
134
Id. at 334 (statement of Rep. Hoar).
135
Id.
136
Id. at 333.
137
Id. at 334.
1408 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
tection, Congress could and should have acted to protect citizens’
rights.
138
As Hoar recognized, denials of basic rights were nothing new.
History did not suggest that the states would correct the problem. In
a large part of the Union, slaves had been denied “all rights, civil, po-
litical, and personal.”
139
So far was there from being any tendency to correct this evil under the
operation of existing State constitutions, that the civil right of discussing
temperately the rightfulness or expediency of this state of things and the
political right of voting to put an end to it was also denied, with penalty
of banishment or death to any person of the dominant race whose sense
of public duty might so incline him.
140
Hoar said, somewhat inaccurately, that the penalty was not “ex-
pressed in terms on the statute-books,” but, he accurately noted, it
was enforced by mobs.
141
Congressman Monroe insisted that
[a] constitution is a means, and not an end. Life, liberty, and happiness
do not exist for the sake of the constitution, but the constitution exists
and was framed for their sake . . . . [T]here is a fair presumption that it
contains sufficient grants of power to the legislative body to secure the
great primal objects for which constitutions and Governments exist.
142
For Monroe “every free constitution” evolved in similar ways.
These free governments had a “natural growth,” a growth that did
not come only from amendment or change of the letter or spirit.
143
“It is not the intrusion of new principles, but it is the more extended
application of old ones. Principles have commonly a much wider ap-
plication than we suspect.”
144
A new application of a well-known principle, whether in morals, in sci-
ence, or in the organic law of the land, takes us by surprise . . . yet it is
only what is required by the most logical consistency. When we first study
the constitution of a free country we think of its principles only as appli-
cable to that state of society and to those needs of the people which then
exist and with which we are familiar. But, in time, new circumstances
arise, new social conditions appear, and minds will then be found who
will propose to include the new phenomena under the old rule. This will
startle many as an innovation, as a violation of the constitution, whereas
138
Id.
139
Id. at 335.
140
Id.
141
Id.
142
Id. at 370 (statement of Rep. Monroe).
143
Id.
144
Id.
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1409
it may be only the application of known and admitted principles to new
circumstances.
145
As to privileges and immunities and equal protection, Monroe
agreed with Hoar.
146
Others also read privileges and immunities to
include rights in the Bill of Rights. For example, Senator Frelinghuy-
sen cited the takings guarantee as one of the privileges or immunities
of citizens.
147
Representative Hawley included the right to express
opinions as one right protected by the Fourteenth Amendment.
148
As to equal protection, Frelinghuysen, like Monroe, said states
could deny equal protection by inaction as well as by action. A state
denied equal protection by failing to protect.
149
Furthermore, it was
“the constitutional right and duty of the General Government to see
to it that the fundamental rights of citizens of the United States are
protected.”
150
How, he asked, could the government “protect the pri-
vileges of citizens of the United States in the States?”
151
It could not
“compel proper legislation and its enforcement; it can only deal with
the offenders who violate the privileges and immunities of citizens of
the United States.”
152
For these congressmen and senators, the Privileges or Immunities
Clause did not simply give Americans of African descent the rights
enjoyed by whites under state law. Instead it gave whites and blacks
national privileges and immunities that should be absolutely un-
abridged.
Some, of course, expressed more or less divergent views. Con-
gressman Willard, a Republican of Vermont, insisted that the Privi-
leges or Immunities Clause merely guaranteed equality of privileges
with other citizens of the state. He relied on the Civil Rights Act
(which he read as merely securing equality in rights states provided)
to prove his point. Willard saw enforcement of the Fourteenth
Amendment as initially proposed as a violation of the rights of the
states.
153
People like Willard believed citizens had a right to equality
under state law. They may have found the final language of the stat-
ute (punishing private action to deprive people of equal privileges or
immunities) consistent with their limited view of privileges or immu-
145
Id.
146
Id.
147
Id. at 499 (statement of Sen. Frelinghuysen).
148
Id. at 382 (statement of Rep. Hawley).
149
Id. at 501 (statement of Sen. Frelinghuysen).
150
Id.
151
Id.
152
Id.
153
Id. at app. 188 (statement of Rep. Willard).
1410 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
nities and therefore acceptable. At any rate, Willard voted for the fi-
nal version of the bill, which reached private conspiracies.
154
As we have seen, a number of Republicans relied on the Equal
Protection Clause as a source of federal power to reach private vio-
lence. By an often expressed view, the Equal Protection Clause, by
prohibiting state denials of equal protection, required states to provide
protection of the laws to all. The Clause went beyond requiring laws
equal on their face; it also required administration of the law that
provided equal protection. To deny protection was to refuse to sup-
ply it. People had a right to protection of the laws. Since Southern
states were unable to supply protection, Congress under Section 5 of
the Fourteenth Amendment could do so. As Senator Morton ex-
plained,
If a State fails to secure to a certain class of people the equal protection
of the laws, it is exactly equivalent to denying such protection . . . . [It did
not matter whether the failure was] willful or the result of inabil-
ity . . . . [That was a question] into which it is not important that Con-
gress should enter . . . . If there be organizations in any of the States hav-
ing for their purpose to deny to any class or condition of men equal
protection, to deny to them the equal enjoyment of rights that are se-
cured by the Constitution of the United States, [it was] the right and duty
of Congress to make such organizations and combinations an offense
against the United States . . . . [C]itizens of the United States, whatever
may be their political views [should have] the equal protection of the
laws.
155
Referring to the Equal Protection Clause, Senator Edmunds said
that it meant that the citizen “shall have the protection of the law. Al-
though the word is negative in form, it is affirmative in its nature and
character.”
156
The Equal Protection theory was not necessarily exclu-
sive. A number of congressmen believed that Congress had the pow-
er to supply protection when the state failed to do so, and that it also
had the power to protect any national constitutional right belonging
to the citizen against a conspiracy aimed specifically at that right.
Still, a few Republicans accepted the idea that the Privileges or
Immunities Clause (whatever it meant), the Due Process Clause, and
the Equal Protection Clause merely limited state power. One of the
strongest attacks on an earlier version of the statute came from Con-
gressman Farnsworth of Illinois. He felt the time for reconstructing
the South had past. “We have reconstructed, and rereconstructed,
and we are asked to reconstruct again . . . . I fear we are governing
154
Id. at 808 (statement of Rep. Willard, voting with the majority in favor of the act).
155
Id. at 501 (statement of Sen. Frelinghuysen); id. at app. 251 (statement of Sen. Morton).
156
Id. at 697.
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1411
the South too much.”
157
Farnsworth believed the proposed version of
the statute—providing a remedy for conspiracy “to do any act in vio-
lation of the rights, privileges, or immunities of any person, to which
he is entitled under the Constitution and laws of the United States.”
and which act would otherwise be criminal under state law
158
imper-
iled the federal system.
159
“I do not believe in centralization of the
powers of Government, nor in abolishing the State lines and State
governments or abridging their powers.”
160
Farnsworth reviewed the congressional debates on Bingham’s pro-
totype. His review showed significant opposition to the prototype;
that it was replaced with the current version of Section 1 with privi-
leges or immunities, due process, and equal protection prefaced with
“no State shall;” and that Bingham and others had referred to the re-
vised version as limiting state power.
161
According to Farnsworth, Section 1 “requires no legislation; ‘it is a
law unto itself;’ and the courts can execute it.”
162
To the extent that it
excludes the Congress, this view is starkly inconsistent with what lead-
ing framers of the Amendment said when it was being framed in the
39th Congress.
163
At any rate, according to Farnsworth, the Amend-
ment was merely a limit on state power, and congressional power
could not reach individuals—under equal protection or any other
theory apparently.
164
For Farnsworth there was no middle ground.
The question was “whether we shall obliterate State lines and abolish
State constitutions and State Legislatures, and centralize all the pow-
er of these States of ours in one grand despotic, central Government
at Washington.”
165
A few others took a very narrow view. Senator Trumbull insisted
that the Privileges or Immunities Clause had not extended the rights
and privileges of American citizens “one iota” and he insisted it did
not protect persons in the states except as to the equality guaranteed
157
Id. at app. 116–17.
158
Id. at app. 113 (statement of Rep. Farnsworth, referring to what was then the second sec-
tion).
159
Id. at app. 117.
160
Id.
161
See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 1063–64 (1866) (statement of Rep. Hale); id.
at 1095 (statement of Rep. Hotchkiss).
162
CONG. GLOBE, 42d Cong., 1st Sess. app. 117 (1871) (statement of Rep. Farnsworth).
163
E.g., CONG. GLOBE, 39th Cong., 1st Sess. 2766 (1866) (statement of Sen. Howard) (dis-
cussing how Congress will enforce Section 1 under its enforcement powers in Section 5);
id. at 2542 (statement of Congressman Bingham).
164
CONG. GLOBE, 42d Cong., 1st Sess. app. 117 (1871) (statement of Rep. Farnsworth).
165
Id.
1412 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
by Article IV, Section 2.
166
The states were “the depositories of the
rights of the individual against encroachment.”
167
At any rate the
Amendment only reached “infringement by law.”
168
In the 39th Congress, Republicans had replaced a provision that
gave Congress direct power to secure equal protection in life, liberty,
or property. The critics understood that provision to allow the Con-
gress to legislate on virtually all state law issues. They were not then
facing massive political terrorism, and they did not consider whether
the revised Amendment would allow Congress more limited power—
to act against private terrorists who acted with the specific intent of
punishing the exercise of constitutional rights protected in Section 1.
Congressman Garfield seems to have taken a middle ground. He
seemed to read the Privileges or Immunities Clause and the Due
Process Clause as equivalent to the first section of the Civil Rights
Act.
169
How Section 1 of the Civil Rights Act contained a federal stan-
dard of due process the states were required to obey, Garfield did not
say. Taken literally, his remarks suggest he found protection for at
least one Bill of Rights liberty in the Civil Rights Act.
As to equal protection, Garfield said he might be pushing the
words beyond their natural limit, but he believed that the prohibition
on denying equal protection required the states to provide equal pro-
tection.
170
Garfield did say that when the laws of the state were equal
on their face but systematically not enforced, the Enforcement Clause
would allow Congress to act to supply Equal Protection:
Now if the second section of the pending bill can be so amended that
it . . . shall employ no terms which assert the power of Congress to take
jurisdiction of the subject until such denial be clearly made, and shall not
in any way assume the original jurisdiction of the rights of private persons
and of property within the States . . . I shall give it my hearty support.
171
As finally written, the statute reached private action, and it did not
condition prosecution on proof of state neglect.
172
Still, Garfield
voted for the final version.
173
The Fifteenth Amendment also had state action language.
174
Here
Garfield found power to reach private violators. Garfield said that
166
Id. at 576 (statement of Sen. Trumbull).
167
Id. at 577.
168
Id. at 576.
169
Id. at app. 151; but see id. at 152 (statement of Congressman Garfield).
170
Id. at app. 153.
171
Id.
172
Act of Apr. 20, 1871. ch. 22, 17 Stat. 13 (1871).
173
CONG. GLOBE, 42d Cong., 1st Sess. at 808 (showing the vote).
174
See U.S. CONST. amend. XV.
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1413
the Amendment plus the power of Congress to regulate the time,
place and manner of elections, “arms Congress with the full power to
protect the ballot-box at all elections, at least of officers of the United
States, and to protect the right of all men within the limit of that
clause to the suffrage.”
175
He may have doubted that the Fifteenth
Amendment alone would be sufficient to reach private violence
aimed at the right to vote because of race.
In addition, Garfield found full power to punish persons, includ-
ing private persons, who denied to blacks the rights in the Civil
Rights Act (which he read to secure equal rights with white men) and
who violated the right of voters to enjoy the suffrage “guaran-
tied . . . in the main text of the Constitution and in the fifteenth
amendment.”
176
Near the end of the debate, Senator Edmunds of Vermont noted
that the Fourteenth Amendment secured the rights of “white men” as
much as “colored men.” He insisted that under the Fourteenth
Amendment the national government could
[P]reserve the lives and liberties of white people against attacks by white
people, against rapine and murder and assassination and conspiracy,
contrived in order to drive them from the States in which they have been
born or have chosen to settle, contrived in order to deprive them of the
liberty of having a political opinion.
177
Moreover,
The disorders in the South are not like the disorders in many other
States, where there always are disorders, the results of private malice.
The slaying of men [in the South], as a rule, is not because the murderer
and the assassin have any hostility or quarrel with the person who is the
victim; but it is one step in the progress of a systematic plan and an ulte-
rior purpose, and that is not to leave in any of those States a brave white
man who dares to be a Republican or a colored man who dares to be a
voter.
178
The final version of the 1871 Act satisfied most Republicans. As
we have seen, it made it a crime for two or more persons to
conspire together, or go in disguise upon the public highway or upon the
premises of another for the purpose, either directly or indirectly, of de-
priving any person or any class of persons of the equal protection of the
laws, or of equal privileges or immunities under the laws, or for the pur-
pose of preventing or hindering the constituted authorities of any State
from giving or securing to all persons within such State the equal protec-
tion of the laws, or shall conspire together for the purpose of in any
175
CONG. GLOBE, 42d Cong., 1st Sess. app. 149 (statement of Rep. Garfield).
176
Id. at app. 153.
177
Id. at 696 (statement of Sen. Edmunds).
178
Id. at 702.
1414 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
manner impeding, hindering, obstructing, or defeating the due course of
justice in any State or Territory, with intent to deny to any citizen of the
United States the due and equal protection of the laws . . . .
179
Senator Edmunds had explained that the statute would not reach or-
dinary crimes or feuds in a state, but if people conspired to injure a
person because he was a Democrat, or a Methodist, or a Vermonter
the section would reach that conduct.
180
This suggests that he con-
nected congressional power to privileges protected by the Fourteenth
Amendment as well as to equal protection.
E. The Proper Scope of Congressional Power Under Section 5 of the Fourteenth
Amendment
Some things are clear from Congressional enforcement of the
Fourteenth Amendment shortly after its ratification. First, Republi-
cans overwhelmingly concluded that Congress could reach private
conduct motivated by a specific intent to deprive people of constitu-
tional rights. Some found the right to protection in the Equal Pro-
tection Clause, some in the right to protect liberties in the Bill of
Rights, some in the ability to protect less textually explicit fundamen-
tal rights, some in the guarantee of republican government, and
some in all of these. Many who found the right to protection under
Equal Protection found it existed when the state systematically was
unable or unwilling to supply protection. But once those facts were
present—a matter for Congress to decide—Congress could pass a na-
tional statute to be used as necessary.
Having found widespread violence designed to deprive people of
their constitutional rights in Southern states, Congress passed a na-
tionwide statute. It did not limit the law to specific districts where the
problem currently existed. Nor did it condition prosecution on any
finding of a denial of protection by the state. Congress exercised a
power to reach private persons who acted with intent to deny to citi-
zens their constitutional rights. The final language was broad
enough to cover denials of equal protection, denials of equal consti-
tutional privileges or immunities, and denials of equality under state
laws. Prosecutors were not required to prove state neglect, inability,
or denial. Virtually all Republicans in the Congress who had been in
the 39th Congress voted for the final version.
181
179
Act of Apr. 20, 1871, ch. 22, 17 Stat. 13.
180
CONG. GLOBE, 42d Cong., 1st Sess. 567 (1871).
181
See, CONG. GLOBE, 39th Cong., 1st Sess. 3149 (1866) (indicating House vote on the final
version of the Fourteenth Amendment); id. at 3042 (showing passage in the Senate).
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1415
Both the Bingham view of privileges and immunities and the
Equal Protection theory should have been sufficient to support con-
gressional action reaching private persons who acted with the specific
intent to punish people for exercising constitutional rights or to de-
ter them from exercising them or to interfere with constitutionally
mandated equality. In addition, Congress should have been able to
reach private action with the specific intent to deprive people of the
right to vote because of race. In the case of the Fourteenth Amend-
ment, the prohibition against state or federal denial of Bill of Rights
liberties should be understood as an implicit recognition that Ameri-
can citizens (and as to process rights all persons) had those rights.
Once one accepts that Americans have a right to free speech and
press, Congress should have the power to punish the private violence
undertaken with the specific intent to prevent or punish free speech
and free press. Similarly, a lynch mob could be punished (regardless
of the race of the victim) because it acts with the specific intent to
deprive the victim of his or her right to a trial in accordance with due
process.
When it adopted the Fourteenth Amendment, Congress had been
concerned both with individual rights and federalism. It rejected a
version that many thought permitted Congress to legislate on any and
every subject of state concern. The Enforcement Acts did not do
that. Because they were limited by a specific intent requirement, they
left ordinary crimes entirely to the states. But they reached politically
motivated attempts to use the tactics of terror to prevent the exercise
of constitutional rights. This approach protected the fundamental
rights of citizens while also protecting the role of the states.
Congress was attempting to protect the democratic process from
terrorists. A court more sympathetic to protection of fundamental
rights, the democratic process, and the right of the majority to rule
should have had little difficulty protecting federalism, fundamental
rights, and the democratic process.
A structural argument strongly supports congressional power to
reach violence specifically designed to punish or prevent the exercise
of constitutional rights. The principle of popular sovereignty asserts
that the people have the ultimate political power in both state and
national governments. Of course, the class of those entitled to vote
has expanded over time. But, subject to constitutional limitations,
the majority—as the white-black Republican coalition was in most
CONG. GLOBE, 42d Cong., 1st Sess. 522 (1871) (showing passage in the House); id. at 709
(showing Senate passage).
1416 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
Southern states—has a right to govern. A healthy representative de-
mocracy cannot exist when people on one side of a political dispute
are systematically murdered, whipped, exiled, and have their houses
and businesses burned and their animals killed—all because of their
political opinions. Federal power used to prevent such terrorist out-
rages does not destroy the role of the states. States can prosecute
such crimes under state law as murder, assault, etc. Preemption of
such state laws should be foreclosed in the interest of federalism. In
the interest of democracy we should remember the Titanic. Redun-
dant safety devices are a wise idea.
The first sentence of Section 1 provides for equal citizenship in
the United States and in the state of the citizen’s residence.
182
Citi-
zens who are the victims of a systematic plan to terrorize them be-
cause of their political views are denied the basics of citizenship. Be-
cause of the nature of republican government, at least all adult
citizens must have rights of speech, press, petition, and association—
whether or not they are legally entitled to vote. For those entitled to
vote, systematic terror designed to prevent them from creating a po-
litical majority denies the essence of equal citizenship. The first sen-
tence of Section 1 of the Fourteenth Amendment creates a right to
citizenship. It is not prefaced with “no State shall.”
Political terror should also activate congressional power under Ar-
ticle IV, Section 4 of the Constitution: “[t]he United States shall
guarantee to every State in this Union a Republican Form of Gov-
ernment.”
183
No state can be Republican where a minority is permit-
ted to use tactics of terror to deny their opponents the rights of
speech, press, association, and franchise and to thwart majority
rule.
184
182
U.S. CONST. amend. XIV, § 1 (“All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge the privi-
leges or immunities of citizens of the United States; nor shall any State deprive any per-
son of life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.”).
183
U.S. CONST. art. IV, § 4 (“The United States shall guarantee to every State in this Union a
Republican Form of Government, and shall protect each of them against Invasion; and
on Application of the Legislature, or of the Executive (when the Legislature cannot be
convened) against domestic Violence.”).
184
See WILLIAM M. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION 24–27
(1972) (describing the nature of republican government and the obligation imposed by
the Guarantee Clause); id. at 33 (showing the framers’ concerns with mob violence); id.
at 42 (delegitimizing extra legal violence through the Guarantee Clause); id. at 57–59
(securing republican government and securing the states against “dangerous commo-
tions, insurrections and rebellions,” according to James Wilson in the Constitutional
Convention); id. at 59 (describing Professor Wiecek’s observations that the Clause was de-
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1417
The choice between nationwide statutes (preventative as well as
remedial) and targeted ones should be up to Congress. General and
national statutes have several advantages. First, they avoid claims that
one region is being singled out and remove one source of resentment
and resistance. More important, they are in place so new outbreaks
of political terrorism can be dealt with immediately. Once in place,
they cannot be blocked in Congress by a faction that stands to benefit
politically from terrorism. Failure to have the statutes in place allows
the forces of terror and fraud to elect their preferred representatives
and block remedial legislation. That is what happened in the United
States after “Redemption.”
As it confronted claims under the Fourteenth Amendment, the
Supreme Court often failed to see obvious middle grounds between
the utter destruction of federalism and protection of the rights of cit-
izens. For example, in considering the Privileges or Immunities
Clause in the Slaughter-House Cases,
185
the Court presented the choice
as one between turning all matters of state law over to the federal
government or limiting the privileges or immunities of citizens to
things such as the right to visit the sub-treasuries, to be protected on
the high seas, and to be safe in foreign lands.
186
In state action cases,
allowing Congress under the Fourteenth Amendment to reach pri-
vate violence specifically designed to punish or deter the exercise of
core constitutional rights would hardly herald the end of the states.
187
Obviously, if congressional power is limited to crimes with the specific
intent to deprive people of constitutional rights and the doctrine is
carefully developed with a view to federalism, destruction of the role
of the states would not follow.
signed to secure internal order, to prevent the establishment of autocratic governments
in the states, and “third, [to] give broad powers to the federal government over the states
to achieve the first two objects.”); id. at 67 (explaining that The Federalist 21 suggested that
the clause was designed to prevent violent changes in republican institutions); id. at 67–
68 (supporting the fact that the clause was designed to assure popular control of govern-
ment, rule by majorities in the states with safeguards for the rights of minorities).
185
83 U.S. (16 Wall.) 36 (1872).
186
Id. at 77 (“And where it is declared that Congress shall have the power to enforce that
article, was it intended to bring within the power of Congress the entire domain of civil
rights heretofore belonging exclusively to the States?”).
187
See, e.g., United States v. Morrison, 529 U.S. 598, 620 (2000) (”These limitations are nec-
essary to prevent the Fourteenth Amendment from obliterating the Framers’ carefully
crafted balance of power between the States and the National Government.”).
1418 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
VI. CONGRESSIONAL POWER IN THE COURTS
In 1871, in United States v. Hall, the Circuit Court for the Southern
District of Alabama considered an indictment under the section of
the 1870 statute designed to enforce the Fourteenth Amendment.
188
The government had charged the defendants with conspiring to op-
press, injure, threaten, and intimidate citizens for exercising their
rights to free speech and freedom to assemble—alleged to be privi-
leges secured to them by the Constitution of the United States.
189
The
defendants moved to dismiss the indictment on the ground that the
conduct charged did not violate any right or privilege secured by the
Constitution of the United States.
190
Judge Woods wrote the opinion
(based largely on suggestions he received in correspondence with
Justice Bradley).
191
The United States’ attorney contended that the rights of free
speech and assembly, while not granted by the Constitution, were se-
cured by it.
192
Speaking for the court, Judge Woods noted that free
speech and other rights in the first eight amendments were protected
only against federal, not state, legislation. They were partially se-
cured. Still, under the first eight Amendments Congress lacked the
power to protect the people of a state from their violation.
193
But “the
fourteenth amendment has a vital bearing upon the question.”
194
It
made a person born in the nation a citizen and “entitled to all the
privileges and immunities secured by the constitution of the United
States to citizens thereof.”
195
The privileges were those that were fun-
damental and that belonged of right to the citizens of all free states.
“Among these we are safe in including those which in the constitu-
tion are expressly secured to the people, either as against the action
of the federal or state governments,” including freedom of speech
and the right peaceably to assemble.
196
Since both Congress and the States were forbidden to impair
these rights, they were secured to the people. The Fourteenth
Amendment gave Congress enforcement power. Congress had the
188
See United States v. Hall, 26 F. Cas. 79 (C.C.S.D. Ala. 1871) (No. 15,282).
189
Id. at 79.
190
Id. at 79–80.
191
CURTIS, NO STATE SHALL ABRIDGE, supra note 2, at 258 n.8.
192
Hall, 26 F. Cas. at 80.
193
Id. at 80–81.
194
Id. at 81.
195
Id.
196
Id.
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1419
power to protect these rights against unfriendly or insufficient state
legislation. This was so because the Fourteenth Amendment
not only prohibits the making or enforcing of laws which shall abridge
the privileges of the citizen, but prohibits the states from deny-
ing . . . equal protection of the laws. Denying includes inaction as well as
action, and . . . includes the omission to protect . . . . [T]o guard against
the invasion of the citizen’s fundamental rights, and to insure their ade-
quate protection, as well against state legislation as state inaction, or in-
competency, the amendment gives congress the power to enforce its pro-
visions by appropriate legislation.
197
It would be unseemly to interfere directly with state enactments and it
could not compel activity of state official. So the
only appropriate legislation it can make is that which will operate di-
rectly on offenders and offenses, and protect the rights which the
amendment secures. The extent to which congress shall exercise this
power must depend on its discretion in view of the circumstances of
each case. If the exercise of it in any case should seem to interfere with
the domestic affairs of a state, it must be remembered that it is for the
purpose of protecting federal rights, and these must be protected even
though it interfere with state laws or the administration of state laws.
We think, therefore, that the right of freedom of speech, and the other
rights enumerated in the first eight articles of amendment to the consti-
tution of the United States, are the privileges and immunities of citizens
of the United States, that they are secured by the constitution, that con-
gress has the power to protect them by appropriate legislation.
198
The decision combined the individual rights protected by the Privi-
leges or Immunities Clause with the right to equal protection. The
result was direct federal power to protect the rights against private vi-
olence aimed at punishing people for exercising them and aimed at
preventing citizens from exercising them.
The Supreme Court decided the Slaughter-House Cases
199
a couple
of years later. In that decision it distinguished (appropriately) be-
tween privileges and immunities under state law and privileges and
immunities of citizens of the United States. But the Court suggested
that almost all civil liberties and civil rights were privileges or immu-
nities under state law. Federal privileges or immunities included visit-
ing the seaports, the capital, and sub-treasuries, protection on the
high seas and in foreign lands, etc.
200
197
Id.
198
Id. at 81–82.
199
83 U.S. (16 Wall) 36 (1873).
200
Id. at 79–80.
1420 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
In 1874 in United States v. Cruikshank,
201
Justice Bradley returned, as
a Circuit Justice, to congressional power to reach private violence.
The case involved a bloody massacre of black Republicans in connec-
tion with a disputed election in Louisiana. The indictment was
brought under the sixth section of the 1870 Enforcement Act and al-
so under certain sections seeking to protect the right to vote.
The defendants were convicted under counts that alleged they
banded together to injure, oppress, threaten, and intimidate two citi-
zens of the United States of African descent with intent to deprive
them of their lawful privilege of peaceable assembly, to deprive them
of their lives without due process of law, to deprive them of their
right to bear arms for lawful purposes, and to intimidate them from
voting.
202
In Hall, the circuit court (with Bradley as a ghost writer) upheld a
congressional statute that protected rights secured by the Constitu-
tion. By the time of Cruikshank, Bradley limited congressional power
to the protection of rights “guarantied” or granted by the Constitu-
tion.
203
Bradley distinguished Prigg v. Pennsylvania
204
as a case where
the Constitution had guaranteed the right to get the fugitive slave
back. He quoted Prigg rule that a right requires a remedy. Bradley
explained that Congress could enforce by appropriate legislation
every right and privilege “guarantied by the constitution.”
205
But with
reference to those rights and privileges of the citizen that were mere-
ly secured against state or federal denial, Congress could not ordinar-
ily reach private actors.
206
In the 1870 Act, Congress, with many fram-
ers of the Fourteenth Amendment present, had a different view. It
protected rights granted or secured by the Constitution and laws of the
United States.
207
According to Bradley, the Thirteenth Amendment was different.
It granted a right not to be enslaved. So Congress could punish pri-
vate persons who conspired to deprive former slaves of the rights and
privileges conferred by the Thirteenth Amendment. As Bradley ex-
201
25 F. Cas. 707 (C.C.D. La. 1874) (No. 14,897).
202
Id. at 708.
203
Id. at 709.
204
41 U.S. (16 Pet.) 539 (1842).
205
Cruikshank, 25 F. Cas. at 709.
206
Id. at 710.
207
Act of May 31, 1870, ch. 114, 16 Stat. 140, 141 (“That if two or more persons shall band or
conspire together . . . with intent to . . . injure, oppress, threaten, or intimidate any citizen
with intent to prevent or hinder his free 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 . . . .”) (emphasis added).
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1421
plained it, the Thirteenth Amendment granted blacks the equal en-
joyment of the laws, and a crime against them motivated by the spe-
cific intent to deny them that equality because of race (for example
in owning a farm) would be within the scope of Congress’s power.
208
As to the Fifteenth Amendment, not withstanding its negative lan-
guage, Bradley concluded it provided a new right to Americans of Af-
rican descent—not to be denied the right to vote based on race. This
right could be, in his opinion, enforced not only against unfriendly
state laws but also against individual violence designed to interfere
with the right.
209
But enforcement was limited to action on account of
race, color, or previous condition of servitude. This sounds helpful.
But Bradley explained that under the Fifteenth Amendment, Con-
gress
can regulate . . . nothing else. No interference with a person’s right to
vote, unless made on account of his race . . . is subject to congressional
animadversion. There may be a conspiracy to prevent persons from vot-
ing having no reference to this discrimination. It may include whites as well
as blacks, or may be confined altogether to the latter. It may have reference to the
particular politics of the parties. All such conspiracies are amenable to the state
laws alone.
210
As Bradley must have known, there was a vast conspiracy designed
to deprive people of the right to vote for political reasons. That is what
the Klan was up to. One lower court decision following the Bradley
approach suggested that race had to be the only reason for the vio-
lence.
211
208
Cruikshank, 25 F. Cas. at 711, 712.
209
Id. at 713.
210
Id. (emphasis added).
211
Charge to Grand Jury–Civil Rights Act, 30 F. Cas. 1005, 1007 (C.C.W.D. Tenn. 1875) (No.
18,260). The opinion despaired the lack of power in the federal government to protect
citizens against, for example, politically motivated murders, such as that of a wealthy
young man, killed because he had asked the governor to protect “negroes of his county
who were being driven from their homes, their houses burned, and themselves mur-
dered.” Id. The judge suggested that the Bradley approach still held out the hope of
protecting Americans of African descent from “violence upon the negro, simply because he
is such, finding its sole animus in his race and color” and that such violence “may be made pe-
nal by congressional enactment.” Id. (emphasis added). The judge suggested that the
Supreme Court might still (as he hoped) find in the Thirteenth Amendment or the first
clause of the Fourteenth the power to punish private persons where “life, liberty, and
property are violently taken, solely on account of the race and color” of the victim. Id.
This was, of course, important and worthwhile, but of no help to white and black Repub-
licans targeted because of their political opinions and activities—which is exactly what the
Klan and similar groups were up to. Reading a requirement of racial animus for private
violence into Section 1 of the Fourteenth Amendment substantially undermined its po-
tential against private violence. Similar problems existed under the Fifteenth Amend-
ment. See United States v. Miller, 107 F. 913, 916 (D. Ind. 1901) (“It cannot be success-
fully contended that the amendment confers authority to impose penalties for every
1422 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
By the revised Bradley view, a conspiracy to prevent lawful assem-
bly could not be punished by congressional legislation. According to
Bradley’s new view, to read the Fourteenth Amendment as allowing
Congress to punish individuals for “disturbing” (what a curious word
in light of the facts) assemblies would be “a strange inference. That is
the prerogative of the states.”
212
He granted that the Fourteenth
Amendment prohibited states from abridging the privilege (his
word) of the right to assemble, but it still gave Congress no power to
legislate against private attacks on assemblies.
213
The same was true of
the right to bear arms.
214
For Bradley, the distinction between
granted and secured rights was crucial.
As to the due process count Bradley noted the lack of any allega-
tion that the state had by its laws interfered with the right or that it
did not afford to all equal protection of the laws. So that count of the
indictment was also defective. As to the count of conspiracy to inter-
fere with the right of certain Americans of African descent to full and
equal benefit of laws for the security of person and property and to
vote, the counts failed to allege the deprivations were because of race.
Those counts were also fatally defective.
215
The U.S. Supreme Court affirmed the Cruikshank decision.
216
The
Court held that the right to assemble and the right to bear arms were
not rights granted by the Constitution. They were merely protected
against federal denial. They remained subject to state jurisdiction.
That was so except for assemblies to petition the federal govern-
ment.
217
The right to assemble and other rights in the Bill of Rights
were not intended to limit the power of the state governments. Just
eight years after the ratification of the Fourteenth Amendment, an
Amendment designed by its leading framers to overturn the rule in
Barron, the Court announced it was too late in the day to question
this decision.
218
As the Court saw it, equal protection, like due process, added
nothing to the right of one citizen against another. The duty to se-
cure equality of rights remained with the states. The United States
conceivable wrongful deprivation of the colored man’s right to vote. It is only when the
wrongful deprivation is on account of race, color, or previous condition of servitude that
congress may interfere and provide for its punishment.”).
212
Cruikshank, 25 F. Cas. at 707, 714.
213
Id.
214
Id. at 715.
215
Id.
216
United States v. Cruikshank, 92 U.S. 542, 559 (1875).
217
Id. at 552–53.
218
Id. at 552.
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1423
was only obligated to see that states did not deny the right.
219
The in-
dictment had alleged that the victims, Americans of African descent,
had been injured and oppressed because they voted. But the indict-
ment failed to allege the election was one for federal offices or that
the deprivation was because of race.
220
The Cruikshank decision limited the reach of the Fourteenth
Amendment to state action. The enforcement statute of 1871 also
had a clause that reached state action. It made persons who, under
color of law, subjected or caused to be subjected “any person within
the jurisdiction of the United States to the deprivation of any rights,
privileges, or immunities secured by the Constitution of the United
States” liable in a civil action.
221
By excising the rights in the Bill of
Rights from the Fourteenth Amendment, the Court deprived this sec-
tion of much of its power. Only much later—especially during the
Second Reconstruction of the 1960s, when the Court began to rein-
state the Bill of Rights as a limit on the states under the Fourteenth
Amendment—did this statute regain its lost power. In the 1961 case
of Monroe v. Pape, for example, the Court held that the victims of an
unreasonable search and seizure had a damage action against the of-
fending police officers under what is now 42 U.S.C. § 1983.
222
Since
the Court had incorporated the protection against unreasonable
searches and seizures as a limit on the states, this right joined the ex-
panding set of rights, privileges, and immunities of citizens of the
United States protected by the statute.
In the 1883 case of United States v. Harris,
223
the Court considered a
prosecution under the 1871 KKK Act. In Harris the defendants had
broken into a jail and beaten and otherwise abused a prisoner await-
ing trial. They were charged with violating a section of the 1871 Act
that punished two or more persons who conspire for the purpose of
depriving a person or class of persons of equal protection of the laws
or equal privileges or immunities under the laws or the due and
equal protection of the laws. The indictment charged the defendant
with denying the victim the due and equal protection of the laws.
224
The Harris Court declared the statute unconstitutional. The
Court held the Fourteenth Amendment was merely a “guaranty of
219
Id. at 554–55.
220
Id. at 555–56.
221
Act of Apr. 20, 1871, ch. 22, sec. 1, 17 Stat. 13 (1871).
222
365 U.S. 167, 171 (1961).
223
106 U.S. 629 (1883).
224
Id. at 629–33.
1424 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
protection against the acts of the State government itself.”
225
The
lynch mob was not the state. The state had violated no provision of
the Fourteenth Amendment. The Court found the statute defective
because it applied no matter how well the state had performed its du-
ties. Since the act was directed against private persons without refer-
ence to the laws of the state or their administration, it was unconstitu-
tional.
226
Decisions such as Harris, and the state action syllogism it
embodied, hobbled efforts to pass federal anti-lynching legislation.
There are very few bright spots in these years when congressional
power was often being contracted. In 1884, in Ex parte Yarbrough,
227
the Court upheld Yarbrough’s conviction for intimidating a citizen of
African descent in the exercise of this right to vote in a federal elec-
tion for members of Congress. He had been beaten and otherwise
mistreated.
228
The Court found Congress had power to punish private persons
for such crimes under its power to regulate the times, places, and
manner of elections. It also invoked structural concerns:
That a government whose essential character is republican, whose execu-
tive head and legislative body are both elective, whose most numerous
and powerful branch of the legislature is elected by the people directly,
has no power by appropriate laws to secure this election from the influ-
ence of violence, of corruption, and of fraud, is a proposition so startling
as to arrest attention and demand the gravest consideration.
229
The Court found the government had such power and need not rely
on the states. It also said the Fifteenth Amendment substantially con-
ferred “on the negro the right to vote, and Congress has the power to
protect and enforce that right.” The Court insisted that
[t]he principle . . . that the protection of the exercise of [the right to
vote] is within the power of Congress, is as necessary to the right of other
citizens to vote as to the colored citizen, and the right to vote in general
as to the right to be protected against discrimination.
230
The decisions of the Waite and Miller Courts were often bad, but
far worse was to follow. Congressional power to enforce the Fifteenth
Amendment was limited to state action.
231
But the Court made even
225
Id. at 638 (quoting Cruikshank v. United States, 25 F. Cas. 707 (C.C.D. La. 1874) (No.
14,897)).
226
Id. at 639.
227
110 U.S. 651 (1884).
228
Id. at 656–57.
229
Id. at 657.
230
Id. at 665.
231
James v. Bowman, 190 U.S. 127, 139 (1903) (“[I]t may be noticed that this indictment
charges no wrong done by the State of Kentucky, or by any one acting under its authority.
The matter complained of was purely an individual act of the defendant. Nor is it
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1425
that barrier ineffective. Soon clever state actions admittedly designed
to deny blacks the right to vote were accepted by the Court.
232
In ef-
fect, step by step, through a series of decisions, the Court ratified the
ability of a political minority to replace majority rule by force, fraud,
and later laws designed to disenfranchise American citizens of Afri-
can descent. Of course, the destruction of democratic government
was not completed by the end of Reconstruction. Many Americans of
African descent continued to vote in the South for almost thirty years
and some white-black political coalitions still existed.
233
More years of
violence and fraud and more decisions from a compliant Supreme
Court would be required to complete the work the state action syllo-
gism did so much to facilitate.
234
VII.
REFLECTIONS: LEGISLATURES AS GUARDIANS OF LIBERTY
We tend to think of the Court as the institution that protects our
rights and the legislature as a threat to them. But throughout our
history some of the great advances in liberty and equality have come
from the legislature—42 U.S.C. § 1983, the Civil Rights Act of 1866,
the Civil Rights Act of 1964, the Equal Pay Act, the Voting Rights Act,
not to mention the Bill of Rights, the Thirteenth, Fourteenth, and
charged that the bribery was on account of race, color or previous condition of servi-
tude.”).
232
See, e.g., Giles v. Teasley, 193 U.S. 146, 161–62 (1904) (describing state constitutional pro-
visions that imposed requirements for voting designed to disfranchise Americans of Afri-
can descent, including proof of literacy and property ownership); Williams v. Mississippi,
170 U.S. 213, 221–22 (1898) (describing “neutral” state constitutional provisions that the
state court admitted were designed to remove black voters, including the poll tax).
233
See, e.g., MICHAEL PERMAN, THE STRUGGLE FOR MASTERY: DISFRANCHISEMENT IN THE
SOUTH 1888–1908 (2000); KEYSSAR, supra note 84 (discussing the combination of terror-
ism and laws to suppress black, Republican, and Populist voters); D
EMOCRACY BETRAYED:
THE WILMINGTON RACE RIOT OF 1898 AND ITS LEGACY (David S. Cecelski and Timothy B.
Tyson eds., 1998) (describing the race riot and political coup that displaced the democ-
ratically elected government of Wilmington, North Carolina).
234
For some other discussions of state action, see, for example., Wilson R. Huhn, The State
Action Doctrine and the Principle of Democratic Choice, 34 H
OFSTRA L. REV. 1379, 1404 (2006)
(suggesting that the scope of the state action doctrine needs to be limited by democratic
principles); see also Michael Les Benedict, Preserving Federalism: Reconstruction and the
Waite Court, 1978 S
UP. CT. REV. 39 (1978) (articulating an account more sympathetic to
the role of the Waite Court). For another approach far less critical of the Waite Court’s
state action cases, see generally Pamela Brandwein, A Judicial Abandonment of Blacks? Re-
thinking the “State Action” Cases of the Waite Court, 41 L
AW & SOC’Y REV. 343 (2007). One
theory to justify federal power recognizes that the Equal Protection Clause requires pro-
tection and failure (for whatever reason) to protect basic constitutional rights is state ac-
tion. See generally Laurent B. Frantz, Congressional Power to Enforce the Fourteenth Amendment
Against Private Acts, 73 Y
ALE. L.J. 1353 (1964).
1426 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
Fifteenth Amendments—which of course were initiated by the Con-
gress.
As Reconstruction and its aftermath show, the Court has hardly
been a consistent champion of liberty. The Court excised the Bill of
Rights from the Fourteenth Amendment, and the decision stood for
many years. It hobbled statutes designed to reach Klan violence. It
struck down the ban on discrimination in inns, theaters, and railroad
cars in the Civil Rights Cases.
235
The same structural considerations
that led the Court to protect the right to vote in federal elections
should have led it to uphold statutes aimed at punishing Klan terror
designed to punish people for constitutionally protected conduct.
While the Warren Court did much for liberty and equality, one of
the chief things it did was to uphold congressional power in the Civil
Rights Act of 1964 (under the Commerce Clause)
236
and the Voting
Rights Act of 1965.
237
In 1966, in United States v. Guest, during another
episode of Klan terror, a majority of the Justices (in concurring opin-
ions) rethought the power of Congress to punish private conspiracies
undertaken with the intent of punishing people for the exercise of
constitutional rights.
238
The suggested expansion was short-lived,
however.
In the face of these developments, many thought the Court insuf-
ficiently active in protecting states’ rights. By this view, embraced at
the time by Barry Goldwater and Ronald Reagan, the 1964 Civil
Rights Act and the Voting Rights Act were unconstitutional as a viola-
tion of states’ rights.
239
Goldwater had two brilliant legal advisers, Wil-
235
109 U.S. 3 (1883).
236
See, e.g., Katzenbach v. McClung, 379 U.S. 294, 300 (1964) (finding that there was a con-
nection between the restaurants’ discrimination against African Americans and effects on
interstate commerce); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258
(1964) (upholding the constitutionality of the Civil Rights Act of 1964 to disallow inns
from discriminating against guests based on race).
237
South Carolina v. Katzenbach, 383 U.S. 301, 337 (1966) (“We here hold that the portions
of the Voting Rights Act properly before us are a valid means for carrying out the com-
mands of the Fifteenth Amendment.”).
238
383 U.S 745, 762 (1966) (Clark, J., joined by Justices Black and Fortas, concurring and
opining that Congress could—under section 5—reach private conspiracies to interfere
with Fourteenth Amendment rights); id. at 774–75 (Brennan, J., joined by Chief Justice
Warren and Justice Douglas, saying Congress could under section 5 reach private action).
The majority opinion was based on the right to travel which does not require state ac-
tion. Id. at 760 (“But if the predominate purpose of the conspiracy is to impede or pre-
vent the exercise of the right of interstate travel, or to oppress a person because of his ex-
ercise of that right, then, whether or not motivated by racial discrimination, the
conspiracy becomes a proper object of the federal law . . . .”).
239
TAYLOR BRANCH, PILLAR OF FIRE: AMERICA IN THE KING YEARS 1963–1965, at 357, 523 (ac-
counting Goldwater opposition to the Civil Rights Act of 1964);
Joseph Loftus, Goldwater
Hits Vote Rights Bill,
N.Y. TIMES, Apr. 2, 1965, at 24; LOU CANNON, PRESIDENT REAGAN: THE
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1427
liam Rehnquist and Robert Bork. Political changes that began in
1964 eventually brought Rehnquist and others to the Court and pro-
duced a Court more concerned with states’ rights and less inclined to
defer to congressional judgment. The trend crosses doctrinal catego-
ries, in cases such as United States v. Morrison
240
and Alden v. Maine.
241
The Court has recently reaffirmed limitations on congressional
power to enforce the Fourteenth Amendment against private per-
sons. In the Violence Against Women Act (really a gender violence
act) Congress sought to punish private persons who committed a
crime of violence based on gender—committed the crime, that is,
because of the person’s gender. In passing the act, Congress had task
force reports before it documenting constitutional violations (by state
neglect) in at least twenty-one states.
In United States v. Morrison, the Court found the part of the statute
that reached private persons unconstitutional based on United States v.
Harris and the Civil Rights Cases.
242
To the claim that state action was
present in the documented failure to protect, the Court said even if
that were a basis for congressional power, the Congress had passed a
nationwide statute with no proof of a nationwide problem. The stat-
ute was not congruent and proportional to the problem.
243
Congress
had reached a very different conclusion on these issues in its Recon-
struction enforcement acts. The Rehnquist Court rejected the con-
clusion of a majority of the justices in Guest and returned to the state
action syllogism of Harris, Cruikshank, and the Civil Rights Cases.
Of course, history carries us only so far. The congressmen who
passed the Fourteenth Amendment embraced a principle against ir-
rational discrimination,
244
but most did not see discrimination against
married women as irrational. Though they gave us a principle that
ROLE OF A LIFETIME 458 (1991); LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN
POLITICS 204, 233–34, 238, 391–92, 495 (2000) (highlighting Goldwater criticisms of the
Warren Court).
240
529 U.S. 598, 617, 627 (2000) (holding that neither the Commerce Clause nor Section 5
of the Fourteenth Amendment authorized Congress to pass the civil remedy provision of
the Violence Against Women Act).
241
527 U.S. 706, 712 (1999) (holding that the “powers delegated to Congress under Article I
of the United States Constitution do not include the power to subject nonconsenting
States to private suits for damages in state courts”).
242
Morrison, 529 U.S. at 621–24 (2000).
243
Id. at 665.
244
See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 1064 (1871) (documenting an exchange be-
tween Reps. Hale and Stevens on the status of married women). Stevens: “When a dis-
tinction is made between two married people or two femmes sole, then it is unequal legisla-
tion; but where all of the same class are dealt with in the same way then there is no
pretense of inequality.” Hale responded that by that logic, treating “negroes and white
men” differently would be
permissible. Id.
1428 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
reached caste legislation and irrational distinctions, they did not un-
derstand the principle as applicable to gender distinctions. We can
follow their principle or their expected application, but not both.
We should follow the more general principle.
This article may seem to be ancient history. Still, the issue of pri-
vate violence aimed at constitutional rights is still pertinent. The
1871 anti-KKK Act has survived in part in 42 U.S.C. § 1985 which pro-
vides a civil action for conspiracy to deprive a person of equal protec-
tion of the laws or equal privileges or immunities under the law. The
Court has read the statute narrowly, however. In 1993 in Bray v. Alex-
andria Women’s Health Clinic, for example, the Court held 42 U.S.C. §
1985 inapplicable to a private conspiracy to block access to abortion
clinics.
245
C
ONCLUSION
Federalism is an important and valid interest. But far too often
the Court and others have assumed a grave threat to the role of the
states in cases where it was not there and was never designed to be
there—sounding the alarm if the Bill of Rights were to limit the
states, if Congress had the power to strike at Klan violence designed
to punish people for the exercise of constitutional rights, and if Con-
gress could punish private violence motivated by gender. Reaching
“private” Klan violence or gender violence need not impair the role
of the states. States would remain free to punish the crimes against
state law. Preemption does not seem a threat here, but if it were the
Court could insist on the concurrent power of the states to punish as-
saults and murders in their jurisdictions.
Curiously, while the Court has vigorously limited congressional
power to protect constitutional rights against private persons in the
interest of federalism, it has been equally active in preempting state
laws in traditional state areas—where the justification for preemption
is far from clear under the applicable statutes. The result is to totally
disable state power to protect its citizens in the areas preempted. So
the Court has protected us from a congressional power that seems to
reinforce liberty and does not significantly interfere with the ability of
245
560 U.S. 263, 276–77 (1993) (“The federal guarantee of interstate travel . . . . protects
interstate travelers against two sets of burdens: ‘the erection of actual barriers to inter-
state movement’ and ‘being treated differently’ from intrastate travelers. . . . [F]rom this
record, the only ‘actual barriers to . . . movement’ that would have resulted from peti-
tioners’ proposed demonstrations would have been in the immediate vicinity of the abor-
tion clinics, restricting movement from on portion of . . . Virginia to another.”).
July 2009] THE KLAN, THE CONGRESS, AND THE COURT 1429
states to prosecute crimes arising from the same transaction, while
preempting state common law actions and statutes designed to pro-
tect basic common law rights (for example, in tort law) when the jus-
tification for doing so is weak and state power is totally disabled.
246
How are we to explain court decisions that hobbled efforts to pun-
ish the use of terror tactics against political enemies—tactics used to
deter their exercise of their constitutional rights and undermine de-
mocratic government? It is a difficult question to answer. Writing af-
ter he lost the case of Plessy v. Ferguson,
247
Plessy’s counsel, Albion
Tourgee, suggested that the Court had always been a consistent en-
emy of equal justice and equal rights.
248
Certainly it has often fallen
short.
The Court is made up of human beings who are affected by the
tenor of the times. When the Court was narrowing and striking down
anti-Klan legislation, many in the nation were reacting against both
Reconstruction and democracy. As Alexander Keyssar has noted, “By
the middle of the 1870s, a scant few years after passage of the Fif-
teenth Amendment, leading intellectuals and politicians voiced deep
reservations about universal or manhood suffrage.”
249
Many of these
had been abolitionists and had supported the Fifteenth Amendment.
Now they opposed universal suffrage in sweeping and systematic
terms.
250
In 1874 Democrats recaptured the House of Representa-
tives, flipping a 199-88 Republican majority into a 169-109 Democ-
ratic one.
251
In 1875, in Boston’s Faneuil Hall, Wendell Phillips was
shouted down when he called for federal protection for black rights
in Louisiana.
252
By 1875–1876, according to historian David Blight,
“[t]he will for federal intervention to stop violence and intimidation
by ‘white liners’ against white Republicans and blacks had all but van-
ished.”
253
In 1877, the Nation magazine complacently announced that
the “negro will disappear from the field of national politics. Hence-
forth, the nation as a nation, will have nothing more to do with
him.”
254
The story of the supposed horrors Reconstruction inflicted
246
Geier v. American Honda Motor Co., 529 U.S. 861, 874 (2000) (holding that a common
law tort action was preempted by a federal safety standard concerning airbags).
247
163 U.S. 537 (1896).
248
Michael Kent Curtis, Albion Tourgée: Remembering Plessy’s Lawyer on the 100th Anniversary of
Plessy v. Ferguson, 13 C
ONST. COMMENT. 187, 193 (1996).
249
KEYSSAR, supra note 84 at 119.
250
Id.
251
DAVID W. BLIGHT, RACE AND REUNION: THE CIVIL WAR IN AMERICAN MEMORY 130 (2001).
252
Id. at 131.
253
Id. at 135.
254
Id. at 138.
1430 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11.5
on the South and the abandonment of white and black Republicans
by the nation served a purpose, according to David Blight. That pur-
pose was to facilitate reunion, a reunion on terms desired by the el-
ites who controlled the South.
255
At the same time that many former supporters were repudiating
Reconstruction and the nation was retreating from it, the Court facili-
tated the retreat. The Court also suggested that national protection
of citizens’ rights would be the end of federalism.
In the turbulent civil rights struggles of the 1960s, the nation re-
newed its commitment to democracy and equal rights, with the Con-
gress, the Executive, and the Court all moving in the same direction.
In those years, faced again with political terror tactics, the Court
moved away—for a short time as it turned out—from the state action
syllogism.
By hobbling Reconstruction statutes designed to protect citizens
against political terrorism, the Court has provided examples of mis-
takes we should avoid. If the Court were more fully aware of its role
after the Civil War in undermining democracy, majority rule, liberty,
and equality for citizens in the South, it might be more circumspect
in praising or following decisions like Cruikshank and Harris.
255
Id. at 139.
