March 27, 1875 – U.S. Supreme Court Decides United States v. Cruikshank

On January 19, 1874, President Ulysses S. Grant nominated Morrison Waite, an attorney and politician from Ohio, to serve as the seventh Chief Justice of the U.S. Supreme Court. Waite went on to author what is generally characterized as one of the Supreme Court’s worst rulings, one that handicapped the federal government’s ability to protect newly freed slaves for nearly a century.

Chief Justice Morrison Waite

In United States v. Cruikshank, 92 U.S. 542 (1875), the Court held that protections afforded by the newly enacted Fourteenth Amendment, including due process and equal protection, only governed state actions, not those committed by individuals.

This decision overturned the convictions of three white men accused of the murder of at least 105 blacks (and perhaps up to 300) in the Colfax massacre at the Grant Parish, Louisiana, courthouse on Easter 1873. In the wake of a disputed gubernatorial election between a white Democrat and a black Republican, a riot broke out between the White League (a group akin to the Klu Klux Klan) and Louisiana’s largely African American state militia. Several hundred whites, armed with rifles and even a small cannon, surrounded the courthouse where the blacks were ensconced, and opened fire. The black defenders ran up a white flag of surrender, but the mob wasn’t interested in mercy, butchering any they could reach. It became known as the worse slaughter perpetrated against blacks during Reconstruction, and that’s saying a lot, given the violent nature of the times.

In any event, the men were not charged with murder, but rather with violating the Enforcement Act of 1870. The statute prohibited two or more people from conspiring to deprive anyone of their constitutional rights. After being convicted, the men appealed to the U.S. Supreme Court on just such a basis, the rights in question in this case being the First Amendment’s freedom of assembly and the Second Amendment’s right to bear arms. [This was the first case to come before the Supreme Court which involved a possible violation of the Second Amendment.]

Chief Justice Waite held that the First Amendment right of assembly and the Second Amendment right to bear arms only protected against violations by the federal government, not the states.

He intoned:

. . . .for their protection in its enjoyment … the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.”

He further observed:

The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.”

The fact that the perpetrators of the violence in Colfax were never convicted of a crime served to embolden terrorist organizations like the Ku Klux Klan and other groups seeking to restore racial hierarchy to the South.  

At that time, of course, and for almost the next one hundred years, the southern states, with the imprimatur of “sovereignty” for the protection of the rights of life and personal liberty of its citizens, acted mainly on behalf of white citizens only, ignoring the violence against and intimidation of blacks. Indeed, southern government officials were often complicit in it.

As a history of the Colfax Massacre in “The Atlantic Magazine” noted:

The decision in Cruikshank set a pattern that would hold for decades. Despite being dominated by appointees from the party of abolition, the Court gave its constitutional blessing to the destruction of America’s short-lived attempt at racial equality piece by piece. By the end, racial segregation would be the law of the land, black Americans would be almost entirely disenfranchised, and black workers would be relegated to a twisted simulacrum of the slave system that existed before the Civil War.”

President Grant was at least personally committed to ensuring that black citizens enjoyed their constitutional rights, including the vote. In October of 1876, he told members of a Pennsylvania “colored men’s marching club” that:

…it was his purpose to see that every man of every race and condition should have the privilege of voting his sentiments without violation or intimidation. When this was secured we would then, and only then, deserve to be called a free Republic.” (Ron Chernow, Grant, p. 838)

But in 1876, Rutherford B. Hayes was elected president, in part because the Democrats, in “the Compromise of 1877,” agreed to award him contested electoral votes in exchange for his promise to bring an end to Reconstruction, withdraw all federal troops from the South, and restore “home rule.”

President Rutherford B. Hayes

The significance of Cruikshank is often overlooked. But as Rutgers Professor of Law and Sidney Reitman Scholar James Gray Pope wrote persuasively in “Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon” (Harvard Civil Rights-Civil Liberties Law Review, Vol 49, 2014):

United States v. Cruikshank (1876) is an unacknowledged landmark of American constitutional jurisprudence. Cruikshank, not the far more famous Civil Rights Cases, limited the Fourteenth Amendment to protect only against state action; Cruikshank, not the notorious Slaughter-House Cases, narrowed the Privileges or Immunities Clause of the Fourteenth Amendment to exclude rights enumerated in the Bill of Rights; Cruikshank, not the canonical Washington v. Davis, announced that the Fourteenth Amendment’s Equal Protection Clause protected only against provably intentional race discrimination; and Cruikshank, not the Civil Rights Cases or City of Boerne v. Flores, first excepted the Fourteenth Amendment from the general principle that Congress enjoys discretion to select the means of implementing its constitutional powers. Historically, if the argument of this Article holds true, Cruikshank played a crucial role in terminating Reconstruction and launching the one-party, segregationist regime of “Jim Crow” that prevailed in the South until the 1960s.”

As for the legacy of Cruikshank, as “The Atlantic” history points out:

The conservative majority on the Supreme Court today is similarly blinded by a commitment to liberty in theory that ignores the reality of how Americans’ lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice.”

One only need read the opinion of Justice Roberts in Shelby County v. Holder on June 25, 2013, which invalidated part of the Voting Rights Act of 1965. Chief Justice Roberts, delivering the opinion for the court, wrote:

Not only do States retain sovereignty under the Constitution, there is also a ‘fundamental principle of equal sovereignty’ among the States. Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’ [citations omitted]”

Once again, Southern states took heart from the Court. Within two hours of the ruling, Texas announced a voter identification law would go into effect, along with redistricting. Other states soon followed.