The Volokh Conspiracy

You have probably never heard of the hero of my book, The Day Freedom Died. His name is James Roswell Beckwith, and he prosecuted the Colfax Massacre alone (not by himself with a couple of clerks — alone), defying death threats in majority-white-supremacist New Orleans, back-channel obstructionism from Washington and the sheer physical difficulty of conducting two complex jury trials within four months in a malarial subtropical port city. If I accomplish nothing else with this book, I want to restore J.R. Beckwith to his rightful place in American history.

The oldest son of a farm couple, he was born in Cazenovia, New York, 20 miles south of Syracuse, on December 23, 1832. Cazenovia was antislavery country: Frederick Douglas frequently spoke at Cazenovia’s Free Church, as did Gerrit Smith. In late August 1850, as Congress debated the Fugitive Slave Act, Douglass, Smith and other abolitionist leaders assembled in a Cazenovia orchard. This “Cazenovia Convention” drew more than 2,000 people — roughly half of Cazenovia’s population. I imagine that James Beckwith, then 17 years old, joined the crowd, if only out of curiosity.

A few weeks after the Cazenovia Convention, Beckwith enrolled as a 17-year-old at the Methodist-run Oneida Conference Seminary, whose teachers drilled their students in anti-slavery doctrine. But, after a year there, he asked his parents for permission to go to New York City and read law. He aspired to be a “real, thorough” lawyer — “the noblest work of science,” as he put it. In 1854, he joined the New York bar. After finishing his legal training, Beckwith headed west, first to Michigan, where he served as a district attorney. He married Sarah Catherine Watrous in 1860. Catherine, as she liked to be called, came from Ashtabula County, Ohio, which was also anti-slavery territory. Catherine was a feminist novelist; her nom de plume, “Mrs. J.R. Beckwith,” mocked the prevailing subordination of wives to husbands.

On the eve of the Civil War, the Beckwiths moved to New Orleans, a mecca for lawyers because of its active commerce. As Northern Unionists, their existence was precarious until Union forces reoccupied the city in 1862. But they stayed. By 1868, Beckwith was known professionally, was an accomplished member of the bar with a deep voice and distinctive looks--high forehead, strong cleft chin and bristling walrus moustache.

Though he disdained politics and the “tricksters” who used it “for themselves and their emoluments,” something from Cazenovia still motivated him. His wife Catherine recognized it. In her novel, The Winthrops, she modeled the fictional lawyer Fred Houghton on her husband, depicting him as an “ardent champion for all the varieties of the oppressed, and [an] earnest rectifier of injustice.”

He joined post-Civil War Republican-led efforts to govern his adopted city and state. In 1870, Beckwith served as city attorney under Mayor Benjamin Franklin Flanders, a veteran Republican originally from New Hampshire. In late 1870, the United States Attorney for Louisiana, Alanson B. Long, was found dead in his office, blood seeping from a self-inflicted gash in his throat. New Orleans Republican leaders urged President Grant to replace Long with Beckwith, with one cabling the president that Beckwith was “a good lawyer, perfectly honest, conversant with the business of the office, [a] good Republican and worthy of the appointment.” By January 1871, Beckwith was at work, having first removed the carpet soaked with his predecessor’s blood.

Beckwith's powerful summation to the jury in the Colfax Massacre trial rings down through the ages: "I am not so constructed that I can look with calmness on such horrors as we have listened to. . . . I would rather be that poor wretch burned to a cinder in the ruins of the courthouse than stand as the apologist for the crime that caused it. I would rather go to the bar of God with the chances of the souls of the sixty-four or sixty-five human beings so inhumanly butchered than carry to God a soul so debased as to defend such a crime.”

Beckwith's ability, incorruptibility and moral fire made him dangerous to the white supremacists who hoped to rule Louisiana after Reconstruction. In the final days of February 1877, they demanded his firing as one of their conditions for accepting Rutherford B. Hayes as President. Their emissaries in Washington—including Beckwith’s former courtroom adversary, E. John Ellis--told the Republicans that “no peace could exist” in Louisiana as long as the Colfax Massacre prosecutor remained as U.S. Attorney. Beckwith was fired — almost two years before his term was supposed to end.

Beckwith remained in New Orleans, making a distinguished career as an appellate advocate with frequent appearances before the US Supreme Court. But he and Catherine were never blessed with children. She predeceased him. And when he died in August, 1912, at the age of 79, he was living in genteel poverty, alone except for an African American valet who stayed with him until the end. His estate was valued at a mere $973.72, all of which went to creditors, lawyers and notaries, except for $50 paid to his valet “for attendance during last illness.”

The only substantial historical commentary on Beckwith came in 1987, when Charles Fairman published the second volume of his history of the Supreme Court during Reconstruction. Fairman, who died in 1991, was a distinguished member of the Harvard and Stanford law faculties, a confidant of Justices Felix Frankfurter and Robert H. Jackson, and a teacher of William Rehnquist. As a scholar, Fairman was best known for arguing — as Beckwith's legal adversaries had argued in the 1870s — that the framers of the 14th Amendment did not intend it to “incorporate” the Bill of Rights. Fairman defended the Supreme Court’s reasoning in Slaughterhouse and Cruikshank, though he conceded their baleful impact.

Fairman derided Beckwith as “not a quick learner,” and asserted that “the prosecution in Cruikshank failed because the United States Attorney did not have enough understanding to frame his indictment to charge conspiracy.”

This was terribly unfair, both legally and morally. I hope that, after my book, the record will stand corrected.

J. R. Beckwith believed that the United States could not truly call itself a nation of laws as long as the men who spilled a sea of blood in Colfax, Louisiana on April 13, 1873 went “unwhipped of justice.” And he was right.

A special moment during my recent book tour to Louisiana came when I visited Beckwith's tomb in Metairie Cemetery in New Orleans. It is well-tended, but incomplete. Owing to his poverty at death, and to the fact that he had no survivors, no one ever took the time to inscribe the year of his death on the tomb, as should have been done. Perhaps with the cooperation of some New Orleans lawyers, I can get that done, as an overdue tribute to a great man.

As promised, I'd like to go into the 13th and 15th Amendment issues in Cruikshank, by way of suggesting why Justice Bradley's ruling as circuit justice in the case was so mistaken -- legally, not just morally.

First, consider the indictment by US Attorney J.R. Beckwith. It's hard to summarize a sprawling, 32-count document which scarcely resembles the charging papers of today's criminal justice system. But the gist of his case was as follows.

The first half —Counts 1 through 16—was based on Section 6, the Enforcement Act’s anti-conspiracy provision, and charged the white perpetrators with joining together to “injure, oppress, threaten, or intimidate” freedmen so as “to prevent or hinder” their “free exercise and enjoyment” of rights guaranteed by the Constitution or federal law.

In specifying these rights, Beckwith necessarily improvised, doing his best to fit within both the precedents set by the lower courts, and by the newly decided -- and still poorly understood -- Slaughterhouse Cases. In Count 1, Beckwith charged the defendants with violating the black men’s “right and privilege peaceably to assemble.” In Count 2, he charged a violation of their “right to keep and bear arms for a lawful purpose.”

The case for these two counts, based on the First and Second Amendments, respectively, was, indeed, harder to make after Slaughterhouse. But the ruling gave him plausible reasons to try. In enumerating the “privileges and immunities” of citizenship that the Federal government could still protect, Slaughterhouse had specifically mentioned “the right to peaceably assemble and petition for redress of grievances.” As for the right to bear arms, Slaughterhouse had said nothing one way or the other.

Count 3 spoke of the two men’s right not to be deprived of life and liberty without due process of law. This resembled a claim rejected in Slaughterhouse. However, the right to due process was not only in the post-Civil War 14th Amendment but also in the pre-war 5th Amendment. And though it dissected “privileges and immunities,” Slaughterhouse dismissed the plaintiffs' due process claim briefly. To Beckwith, this must have left open the possibility that the Enforcement Act could be construed to protect a 5th Amendment due-process right for men who were not resisting paying a fee to slaughter their cattle, but who themselves had been imprisoned, beaten and killed like animals.

Count 4 cited the freedmen’s right to the same legal protection “for the security of their persons and property . . . that is enjoyed by white citizens.” Beckwith derived this right -- almost verbatim -- from the statute which established it, the Civil Rights Act of 1866. In Beckwith’s view, the allegation flowed from the simple and obvious fact that the white mob at Colfax would never have treated their victims this way if they had been white men.

Count 5 was more general. It spoke of an enterprise to violate the men’s “rights, privileges, immunities and protection as citizens of the state of Louisiana and the United States . . . on account of their race and color and for the reason that they, being such citizens, were persons of African descent and race and persons of color and not white citizens.”

Count 6 charged the defendants with banding together to punish the Colfax freedmen because they had exercised the right to vote on Election Day, November 4, 1872, at which both state and federal offices had been contested. Count 7 charged them with combining to prevent the Negroes from exercising the right in any future elections.

Count 8 charged the violation of “every, each and all and singular of the several rights and privileges granted or secured to them respectively by the constitution and laws of the United States.” It was vague, but Beckwith thought that its advantage lay precisely in its generality. It was a catch-all charge that said, essentially, “Whatever rights the black men may have under the Constitution or federal law, the conspirators violated them.”

Beckwith based counts 16 through 32 on Section 7 of the Enforcement Act — its penalty provision, which provided that, if conspirators committed any common-law felony in the course of their unlawful enterprise, they would face the prescribed penalty of the state in which they lived. Thus, they repeated the litany of violated rights from the first 16 counts, but added that the conspirators had murdered a freedman in the process of violating his rights. If the jury convicted on any of these 16 counts, the defendants would get Louisiana's penalty for murder: death.

In this respect, Beckwith's case was utterly revolutionary: Southern white men, he said, should pay with their lives for killing black men. The fact that he proposed to make this happen on the basis of largely black prosecution testimony was even more audacious.

Beckwith was giving the jury so many different ways to convict that they would take at least one. Given the ambiguous text of the Enforcement Act and the uncertainties created by Slaughterhouse, the indictment was a credible effort. In crucial respects, it was similar to indictments used to convict Klansmen in other states.

Moreover, as a good real-world practitioner, Beckwith was acting on his knowledge that William Woods, the Republican author of U.S. v. Hall, would preside over this trial as circuit judge. To be sure, in Slaughterhouse -- now binding precedent -- the Supreme Court had not embraced Woods’ broad view of U.S. citizenship. But, given Woods’ record, Beckwith had every reason to hope he would find a way around that problem.

Crucially, federal law of the time provided for no appeals to the Supreme Court in criminal cases. Cases could reach the high court only if two judges sat on the trial, and disagreed on a legal issue. Thus, strategically Beckwith's aggressive indictment also made since, since with only Woods presiding, no such "division of opinion" could occur.

It was only happenstance that the first trial, during February and March 1874, ended in a hung jury, necessitating a second trial that happened to fall during Bradley's circuit-riding in New Orleans during May and June. If there had been a verdict of any kind in the first trial there would have been no US v. Cruikshank, 92 US 542. Such are the accidents of history.

So, how did Justice Bradley dismantle the indictment (on a post-conviction motion in arrest of judgment)?

The first two counts, premised on 14th Amendment incorporation of rights to assemble and bear arms were easy: No state action + Slaughterhouse. Fair enough -- though it was, at the very least, hypocritical of Bradley to invoke Slaughterhouse, since in that case he had been outraged by a state law that merely required white men to pay a fee to slaughter their livestock.

Ditto for Count 3, the due process violation.

But then Bradley came to Count 4, derived from the Civil Rights Act. And Bradley had long believed, as he wrote in his famous dissent in U.S. v. Blyew, that the Civil Rights Act was valid legislation under the 13th Amendment, since it was necessary to destroying the incidents of slavery. The 13th Amendment did permit Congress to criminalize individual behavior, Bradley believed, since it contained no state action language.

This is where Bradley went off on what today we might describe as a flight of judicial activism -- showing, in the process, how his views were evolving to reflect the growing pro-South opinion of Northern conservative Republicans.

He struck down the count because it failed expressly to allege that the conspirators had acted with a racial motive. No federal court had ever required such a clear statement in criminal pleadings. Bradley just made it up, contending that otherwise it might be possible for people who were not former African slaves to gain the protections of the Civil Rights Act -- as if that were a bad thing. Even accepting Bradley's point (that Congress did intend to protect freedmen first and foremost) it was utterly formalistic for him to insist on a precise clear statement in this case, considering that Beckwith had specified that the victims were black, and that they had been denied the rights they would have gotten if white. "It ought not to have been left to inference" -- no matter how clear -- "it ought to have been alleged," this jurist huffed.

Count 5, however, did specifically allege that the men's rights had been violated "on account of race." How would Bradley overcome that? Now he invoked different criteria, noting simply that the allegation of violated rights was too vague. It didn't specifically say which privileges and immunities the men had been denied by being attacked and killed. He used the same argument to get rid of Count 8. To me, this is the best demonstraton of his bad-faith determination to void these indictments.

As for counts 6 and 7, the voting rights violations, Bradley once again invoked his racial-intent clear statement rule. He argued that the Enforcement Act was unconstitutional insofar as it did not limit federal authority to cases in which voting rights were denied "on account of race." This, too, was brand-new. No federal judge had ever even suggested such a rule. It also blew by the obvious facts of the case: an attack on blacks by whites plainly motivated by race -- as abundant testimony in the trial showed.

Another demonstration of Bradley's true, political intent: Bradley could have ordered the defendants held without bail, while Beckwith empaneled a new grand jury and attempted an indictment that would meet Bradley's new specifications. Instead, the justice sua sponte ordered them released on bail. They vanished into the swamps and backwoods of Central Louisiana, far beyond the reach of the poorly-funded, outgunned federal law enforcement team in the state.

The Supreme Court in its final ruling two years later did not go as far as Bradley did in striking down the Enforcement Act's conspiracy provision for lacking a racial-intent clear statement rule. But it did hold that no case could be made under the Act without both alleging and proving such intent. As Beckwith and other US Attorneys recognized, this was a distinction without much of a difference: in the real world of the post-Civil War South, proving specific racist intent to a jury beyond a reasonable doubt would be a tall order indeed.

Thus did Cruikshank help cripple federal law enforcement in the South after Reconstruction.

In response to an astute comment: yes, I made a mistake in the citation for U.S. v. Cruikshank. It is 96 92 U.S. 542. My apologies. Absolutely everything else I have to say is completely correct and perfect, however.

I'll get back to the role of the 13th and 15th amendments in the Supreme Court's erroneous Cruikshank decision. But for now, I just wanted to add another piece of interesting evidence regarding the intent of the framers of the 14th, as well as the other two.

One of the little nuggets you'll find in my book, The Day Freedom Died, is a recreation of the Supreme Court oral argument in the case, based on a near-verbatim transcript published in the Baltimore Sun of April 1 & 2, 1875. Of particular interest is the second-day rebuttal delivered by Attorney General George H. Williams. A former Republican Senator from Oregon, he invoked his experience as one of the drafters of the 13, 14 and 15th Amendments, as well as all the civil rights legislation to enforce them.

Williams' words to the Court are especially significant today as evidence — previously unreported, to my knowledge — regarding the intent of the framers of those post-Civil War provisions.

Remember that the other side in the case was arguing that the Enforcement Acts were unconstitutional because they amounted to federal usurpation of state police powers that remained unchanged by the Civil War Amendments. Anyway, here's what Williams said:

First, he made an implicit allusion to the antebellum Fugitive Slave Law, noting that it had been upheld (in Prigg), and that the 14th Amendment had simply enabled Congress to apply the same principles of federal authority to a law enforcement statute that operated to the benefit of African Americans. He said: “the original constitution recognized the right of the slaveholder to property in his slaves and the Supreme Court decided that Congress had the right to pass a law to protect him in those rights. If the time ever comes when as liberal a construction shall be given to laws designed to protect human freedom as had always been given to laws designed to protect human slavery, then the doctrine of the government in this case would be admitted.”

Recounting the legislative history of the Civil War amendments, the Civil Rights Act of 1866, and the Enforcement Act, he explained to the court that “by the 13th and 14th Amendments, and the civil rights bill, the people of the United States intended to secure to the colored man, under the protection of the United States, the right to make contracts, to sue, to hold property, and the various other rights of citizenship.” Alluding to the dissenters' words in The Slaughterhouse Cases, he said that his opponents in this case “contended that the 14th Amendment was nothing more than an empty formula and amounts to nothing—nothing but empty and vain words” — but this had to be wrong. “Even before the adoption of the late Amendments Congress had the power to protect the right to vote for presidential electors,” Williams argued.

Justice Joseph P. Bradley cut him off. “Suppose Congress should enact a law making it a felony to steal the property of another,” Bradley asked. “Congress has the undoubted right to punish the stealing of the property of the government, or of property in the service of the government, but beyond that the law would be unconstitutional. Now, when a law is so framed that one part is constitutional and another unconstitutional, and the two are so bound together as to be impossible to sever, can you hold one part constitutional and the other part unconstitutional?”

Bradley’s point was implicit but clear: the plain language of the Enforcement Act's conspiracy provision seemed to protect both white and black voters from conspiracies to interfere with their rights, whether racially motivated or not. But if the court felt the post-Civil War amendments only authorized Congress to punish racially-motivated violence—which was Bradley’s position--how could it salvage any part of the statute?

Williams replied that “the law could be enforced as to those offences which it is admitted are within the power of Congress to provide for.” That had to include at least elections for Congress, Williams argued, because “the very existence of the government depends upon these elections. If Congress has no power to protect the voters, then the White League of Louisiana, a minority of the people, can stand around the polls and prevent the majority from voting.” This was similar to an argument that Judge Hugh Lennox Bond of the 4th Circuit had found persuasive in upholding Klan indictments in 1871.

Williams pressed the point: “The learned counsel on the other side said that the fathers never attempted to exercise these powers. Did the counsel forget the great civil revolution through which we had passed? The fathers had never exercised those powers because there was no necessity to exercise them. Just as it was necessary to exercise certain powers during the rebellion never before exercised, so now it was necessary to exercise powers to maintain the results wrought out of that rebellion. The fifteenth amendment confers upon the colored people the right to vote. Unless Congress has the power to enforce that guarantee it is of no value whatever.”

Democratic Justice Nathan Clifford observed that in his home state, Maine, “the colored man always had the right to vote,” so there was no need for a 15th Amendment there. Clifford asked Williams: “If two indictments were found of conspiracy, one to prevent the colored man from voting and the other a white man from voting, would the Circuit Courts of the United States have jurisdiction of both cases?”

“They would in the case of the black man,” Williams answered. “I don’t contend that they would in the case of the white man.”

“Then colored men have more rights in the United States courts than white men,” Clifford shot back.

“That does not follow,” Williams insisted. “The constitution does not confer upon white people the right to vote, but it does upon colored people and thence the power of Congress arises to protect them in that right.” He did not mean to suggest that Negroes have greater rights than whites, Williams added, but surely the purpose of the post-Civil War amendments was to free them from slavery, guarantee them equal rights, and protect them against discrimination. Floundering a bit, Williams said he would modify his answer to Clifford: to keep it consistent with his answer to Bradley, it would be better to say that the federal government could prosecute a conspiracy to violate a white man’s right to vote at a congressional election, but not if the violation was at a state election.

Finally, Justice William Strong, one of the Grant appointees whose vote Williams had to win, piped up with a friendly question — as Justice Scalia occasionally pitches a softball to lawyers on "his" side today. Could the federal government prosecute a conspiracy to prevent a man from voting because he was the son of an Irishman? “It would certainly be a race discrimination,” Strong observed.

Strong was countering Clifford’s extreme suggestion by offering the Attorney General a hypothetical case in which at least some white voters could come under federal protection. When Williams did not at first seem to grasp Strong’s point, the justice sharpened it by asking, “Suppose the State of South Carolina, where the majority of the population are colored, should change the constitution of that state and say that no white man should vote, would a remedy against that lie in the United States court?” Now his point was clear. Even under the argument made by the defense, Congress could nullify explicitly discriminatory state laws. The example was obvious and showed how silly Clifford’s question had been.

Williams, seemingly relieved, answered yes — and got back to arguing from his own experience as a Senator. “My idea, in the main, of these amendments was that any and every right guaranteed by them may be protected in the courts of the United States,” he declared. “Give that construction to these amendments and they are of some value, give them the other construction and the freedom vouchsafed to the Negro becomes practically a curse. Any doubt as to the validity of this act should be resolved in its favor. Bear in mind that these amendments and the legislation under them were practically made by the same hands. Is it to be supposed that those who drew the amendments did not know their scope? According to the arguments on the other side it must be assumed of the Senators and Representatives either that they violated their oath or that they did not know the meaning of the language which they used themselves.”

“Ever since the years of the war,” he said, “no matter what was done to preserve the Union, and to protect the rights of the citizens, it has been met with these lugubrious schemes that you are encroaching upon state authority. . . . Millions of people are today waiting with feverish anxiety the verdict of this court, conscious that their lives and liberties are wrapped up in it. If this court decides in favor of this law it will do more to restore peace and quiet to this land than any decision or any legislation since the close of the war.”

“I look forward to the day,” Williams concluded, “when we can consider ourselves not a nation of inharmonious and warring sovereigns, but a Union whose broad shield shall protect--in all and every right of a freeman and a citizen--her people from one end to the other.”

Well put, but, alas, in vain.

Thanks for the comments on my first post. I'd like to take up Hans Bader's defense of Cruikshank, because it concisely gets to the heart of the matter: the state action requirement found by the Court in that case.

My book goes into this history in some detail, because it is crucial to understand that this requirement, so evident to some in retrospect, was not immediately perceived by all jurists at the time of the 14th Amendment's ratification.

In 1871, the Fifth Circuit held, in a case called US v. Hall, that the 14th Amendment incorporated the Bill of Rights(through the privileges and immunities clause — Prof. Bader and I agree, I think, that this was a proper interpretation that The Slaughterhouse Cases later muddled).

The facts of Hall, briefly, were that a political meeting of black men in Alabama was attacked by Klansmen, with casualties (all black Republicans) including killed and wounded. The US Attorney charged the Klansmen with conspiring to violate the men's First Amendment rights. The Fifth Circuit upheld the indictment by holding not only that the 14th Amendment incorporated the First Amendment against the states, but also — and crucially — that state inaction, i.e., failure to protect rights, was a form of state action. This was not the holding of Judge William B. Woods, the Fifth Circuit judge of the time alone: it was suggested to him privately in a letter from none other than Justice Joseph P. Bradley.

Thus, as of the Colfax Massacre, the law of the land was Hall, which stoo for the proposition that the 14th Amendment could be a shield against anarchy as well as (state) tyranny. This made sense in the context of the time: a contrary ruling would have enabled the Klan to conquer the South simply by creating a state of terror and ungovernability. The Slaughterhouse Cases would modify that considerably, of course; interestingly, Slaughterhouse was decided on April 15, 1873--two days after the Massacre.

The key ruling in Cruikshank was not so much the Supreme Court's 1876 decision as Bradley's 1874 ruling as circuit justice for the 5th Circuit, which overturned both Hall — and, of course, Bradley's own previous (private) view.

In my judgment, this about-face was not dictated by Slaughterhouse, which, even as it reduced the privileges or immunities clause of the 14th Amendment, left open the possibility that assembly, gun possession and due process rights might be part of protected "federal" POI. Furthermore, Slaughterhouse dealt with state action, par excellence: a statute setting up a regulated abbatoir that all butchers must use. It did not necessarily cover the anarchic situation contemplated by Hall — and presented by the Colfax incident.

What happened in between to change Bradley's mind? Remember that he dissented in Slaughterhouse, so you might have expected him to interpret it as narrowly as possible while riding circuit in Cruikshank. Instead, he wielded it aggressively against the federal prosecution.

I would argue that two things — neither of them legal — dictated Bradley's response.

1. Politics. The 1872 election had precipitated a split in Bradley's Republican party, between those who supported Grant's relatively aggressive use of federal power to stifle Klan violence in the South and those who thought it was an unconstitutional fool's errand. Bradley clearly leaned in the latter direction, as did several other Republicans on the Supreme Court at the time.

2. Race. Bradley had never been an abolitionist and in fact had a long history as a pro-South, pro-slavery Northerner. This changed briefly during and shortly after the Civil War, but by 1874, he was thoroughly frustrated with what he saw as the excesses of black-supported "carpetbagger" governments in the South. His dissent in Slaughterhouse was predicated, in part, on his wildly exaggerated belief that the Louisiana slaughterhouse statute was some kind of corrupt carpetbagger imposition, when in fact it was a moderate and sensible public health measure. In Cruikshank, when black lives and not white Southerners' sensibilities were at stake, his judgments changed accordingly.

This may seem unduly harsh as an assessment of Bradley's motivations, but I think it's accurate (at least that's how I argue it in my book). It helps to account for his seeming enthusiasm for a broad view of the 14th Amendment in Slaughterhouse, and his ultra-narrow view in Cruikshank.

The 14th Amendment, by the way, was not the only basis for the federal indictment in Colfax — or for the later decisions by Bradley (and the entire Supreme Court) which struck the indictment down. The 13th and 15th Amendments, and statutes derived from them also played a role. Even if Cruikshank was rightly decided on the 14th, the court might still have upheld the charges on other grounds. But I'll go into that more in a subsequent post.

[Reposted, with comments now working (I hope).-EV]

I've been pleasantly surprised by the interest blawgers and other reviewers have shown so far in The Day Freedom Died, my new book about a little-known massacre of more than 60 African Americans in 1873 — and the ill-fated federal effort to bring the perpetrators to justice. The Supreme Court let the guilty parties go free in U.S. v. Cruikshank, 96 US 542 (1876).

So I am grateful for Eugene's invitation to spread the word in this forum. The point of this and subsequent posts, I hope, is to deepen the discussion to talk about just why I feel that the court got it wrong not only morally — but legally. The pinched interpretation of the 14th Amendment embodied in Cruikshank and subsequent Reconstruction-era rulings (e.g., The Civil Rights Cases) has not only had deleterious consequences for constitutional law down to the present day. It wasn't even required at the time!

My book shows that, prior to Cruikshank, lower court federal judges had upheld pretty ample federal authority to go after the Klan, ruling that the 14th Amendment did empower Congress to criminalize individual acts that violated the civil rights of others. It was only with the intervention of Justice Joseph P. Bradley, riding circuit as the trial judge in Cruikshank in 1874, that that court began to see things differently. It was Bradley's decision to toss out the Colfax Massacre convictions in mid-1874 that the court upheld in the final Cruikshank ruling in 1876.

In the intervening two years, white paramilitary organizations, green-lighted by Bradley, ran unchecked through LA, Miss., and SC, overthrowing the last three Republican governments in the South's three black-majority states.

More anon.