I. Lingering Mysteries about the Slaughterhouse Cases (1873)
In 1866, members of the Joint Committee on Reconstruction introduced the Fourteenth Amendment into the House of Representatives and the Senate, respectively. Several speakers indicated that the force of the new amendment would be to protect basic or fundamental citizen rights against adverse action by state governments, and would allow Congress for the first time to protect such rights against such state action. The clause that would do this was the privileges or immunities clause: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
One speaker in the House, John Bingham, who had written Section One of the amendment, indicated that among the protected “privileges or immunities of citizens” were those rights listed in the first eight amendments to the Constitution, rights that previously had been enforceable only against Congress, not against state governments. He cited specifically the Eighth Amendment's prohibition on cruel and unusual punishments by way of example.Footnote 1
In introducing the amendment in the Senate, Jacob Howard (R–MI) explained that the “views and motives that had influenced the Joint Committee” in proposing the amendment included the goal of protecting against state governmental abridgment “the personal rights guaranteed and secured by the first eight amendments of the Constitution.”Footnote 2 He further noted that the import of the privileges and immunities clause was incorporation of the personal rights listed in the first eight amendments against state governments and the constitutionalizing of the rights listed in the Civil Rights Act of 1866. Given less than a month before the amendment went to the states for ratification, Howard's speech received detailed coverage and was featured prominently in major newspapers across the United States.Footnote 3 In the ensuing debates over adopting the Fourteenth Amendment, no one questioned the claims that the amendment would incorporate against the states the rights listed in the first eight amendments; however, numerous speakers referred in more general terms to those rights that were fundamental to members of a free society.Footnote 4
The pivotal U.S. Supreme Court decision that first set forth an interpretation of the Fourteenth Amendment was the Slaughterhouse Cases (1873), a decision that upheld a regulation on the slaughtering of animals in the metropolitan area of New Orleans.Footnote 5 This case raises a number of critical questions, which I will examine in turn.
First, if it is correct that the Republican 39th Congress, which drafted the Fourteenth Amendment, intended the privileges or immunities clause to incorporate fundamental civil rights and liberties against state governmental abridgment and was widely thus understood—so widely that the Supreme Court had to have been aware of it—and if it is also correct that the Slaughterhouse majority turned its back on that clause,Footnote 6 why would a Supreme Court with seven Republican justices,Footnote 7 turn its back on this meaning to empty the clause of any force within only five years?Footnote 8
In addition, occasional scholars have replied that Slaughterhouse is best read as not having turned its back on incorporation.Footnote 9 If this position is correct, how is one to explain the nearly unanimous decision proffered only three years later in U.S. v. Cruikshank,Footnote 10 where the same justices (eight holdovers from Slaughterhouse plus a new Chief) emphatically reject incorporation—specifically, incorporation of First Amendment rights, for which there is the strongest evidence of original intent in the incorporationist direction,Footnote 11 and of Second Amendment rights, for which there is also more than ample incorporationist evidence—indeed, for a specific motive of incorporation with an eye to giving blacks equal status as members of the armed citizen militia and the means of self-defense?Footnote 12 Apart from the Cruikshank problem, there are three other Supreme Court decisions within the thirteen years following Slaughterhouse that also reject incorporation.Footnote 13
Next, some scholars respond to this riddle by supposing a conscious motive on the part of the justices to handcuff the federal government in its Reconstruction efforts. If it is correct to read Slaughterhouse as having deliberately assaulted the privileges or immunities clause in such a way as to abandon the former slaves to the “tender mercies of the very states that had so recently made mincemeat of them,”Footnote 14 then why would Justice Miller have made such a fuss in the same opinion over the need to read the “general purpose” of the Fourteenth Amendment (and of its companions, the Thirteenth and Fifteenth) as providing protection to the newly freed black “from the oppressions of those who had formerly exercised unlimited dominion over him”?Footnote 15 Why would his opinion have described the Fourteenth Amendment as a direct response to the two following circumstances:
[1][State] laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value. … [2]It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced.Footnote 16
In other words, could Justice Miller have been sincere in his description of the core purpose of the Fourteenth Amendment? Did he not perceive that his emptying all force from the Privileges and Immunities Clause would undermine what he was calling the pervasive purpose of these three Amendments?
Scholars' willingness to read Slaughterhouse as the beginning of a national backtracking on Reconstruction—even though neither blacks nor any racial issues, let alone unlawful, racially-inspired terrorism were involved in the case, and even though the decision stressed this point—could be fueled by the fact that the Court decision coincided almost to the day with the attorney general's instructions to prosecutors in the field to drop all but a few prosecutions of such terrorism. These private instructions were followed by a public announcement from President Grant and his attorney general a few months later of clemency and pardons for persons who had pled guilty in the South Carolina Ku Klux Klan trials.Footnote 17 While the timing coincidence is undeniable, Ronald M. Labbé and Jonathan Lurie, in a recent book devoted to the Slaughterhouse Cases, make short shrift of the scholarly reading of it as a veiled attack on Reconstruction:
The major criticism levied against Miller is that through his opinion, he sought to hinder—if not derail entirely—the course of Congressional Reconstruction. … [T]here is no evidence for such a claim. … The current view of Slaughterhouse ignores these facts, somehow assuming that what happened after 1877 was inevitable in 1873—and this is not so.Footnote 18
Presidents and attorneys general are moved by many forces beyond Supreme Court opinions. Neither Grant nor his attorney general cited the Slaughterhouse Cases as an influence in this matter; rather, they stressed cost and the need for political reconciliation.Footnote 19 In sum, there is no evidence that the Slaughterhouse decision itself caused any retrenchment in the prosecution of Klan atrocities nor that any of the four Republican justices in the majority hoped that the decision would have such an impact.
Moreover, if Miller and his cohort were moving to undermine Reconstruction in Slaughterhouse—a case not involving Reconstruction programs—why would the same justices vote later in the same year to enforce Congressional desegregation of trains and, in 1880, to declare unconstitutional state efforts to keep blacks off of juries?Footnote 20
However, if one takes Miller at his word and reads him as sincere in his Slaughterhouse depiction of the central message of the Fourteenth Amendment, how can this reading possibly be made compatible with votes of Miller and the other justices to set free on legal technicalities the vicious murderers of multiple southern black victims in such decisions as Blyew v. U.S. (1872), and U.S. v. Cruikshank (1876)?Footnote 21 This mystery forces a return to my initial inquiry: If undoing Reconstruction was not the motive of the anti-incorporation move in Slaughterhouse, what was?
Those scholars who attempt to provide a motivation other than the undermining of Reconstruction for Miller's Slaughterhouse demolition of the Privileges and Immunities Clause have not been able to explain away these issues. John Ely, for instance, suggested that the language of the clause itself “frightened” the Miller majority. The seemingly limitless nature of the phrase “privileges and immunities of citizens,” drove Miller to cut the clause down so small as to render it effectively “dead.”Footnote 22 But surely, had the Court wanted to, it could have referred back to congressional debates and cited the leading spokesmen for the amendment as to its purpose of incorporating the Bill of Rights and the rights of the 1866 Civil Rights Act against state governments. This is a big list, but not a limitless one. (The Court could have done this while still rejecting the butchers' attack on the regulation, since there were clearly some “reasonable” grounds for the law the butchers challenged.)
Michael Les Benedict offers a thoughtful account that explains the backing away from allowing any clout to the privileges or immunities clause in Slaughterhouse as part of a broad commitment on the part of both the Chase and Waite Courts to dual federalism (the view that a certain body of implicit states' rights function to check federal powers).Footnote 23 He notes persuasively that this commitment to preserving an appropriately state-centered federal balance was reiterated in Republican Party platforms of the Civil War and postbellum periods, as well as in speeches in Congress on behalf of the postbellum amendments and the postbellum Civil Rights acts.Footnote 24 The standard Republican claim was that the federal-state balance was being preserved save for those powers required to protect the freed slaves and their allies, who were being brutalized in the South. His argument succeeds in placing Miller's opinion within the moderate wing of the Republican party, which favored using the national government only so far as needed to secure the freed slaves in their full rights as free citizens. Congressional Republican moderates, however, had voted for the Fourteenth Amendment in the understanding that such Bill of Rights privileges as those found in the First and Second Amendments would be secured against state abridgement. Benedict's analysis cannot explain why the Miller Court felt a need to turn its back on the incorporation of these frequently mentioned rights.
One can readily agree with the claim that the accepted federal balance of late nineteenth-century America was far more state-centric than at present—indeed, there was not even a federal Department of Justice until 1870.Footnote 25 Furthermore, it is clear that, in 1873, Justice Miller found the dissenters' position in Slaughterhouse to present a frighteningly radical upsetting of the federal balance.Footnote 26 One need not doubt the commitment of the Chase and Waite Courts to dual federalismFootnote 27 in order to remain puzzled why the Chase Court would completely reject incorporation, instead of including it as part of the post-Fourteenth Amendment balance. Commitment to dual federalism does not determine per se where the federal/state dividing line is to be drawn.
Nor does a close examination of the judicial ideology at work in this Court shed much light on the questions outlined above. Eight of the justices on the Slaughterhouse Court had been appointed by either Lincoln or Grant. Justice Stephen Field, although appointed by Lincoln, was a California Democrat. Thus at the time of Slaughterhouse two of the nine justices—Field and the Buchanan-appointed, Nathan Clifford—had entered the Court with a Democratic party affiliation. Although these two Democrats split in Slaughterhouse, they would later prove to be the only dissenters in the 1880 decisions that applied the Fourteenth Amendment to secure for blacks the right to serve on state and local juries (Strauder v. West Virginia, 100 U.S. 303, Ex Parte Virginia, 100 U.S. 339, and Neal v. Delaware, 103 U.S. 350). In addition, Clifford and Field would also take the dissenting position in two 1880 decisions that upheld congressional authority to regulate corrupt behavior of state officials in congressional elections (Ex Parte Siebold, 100 U.S. 371, and Ex Parte Clarke, 100 U.S. 371). This pattern suggests that the two Democrats did not view the issues at work in Slaughterhouse as linked to Reconstruction.
The Slaughterhouse majority contained one of the two Democrats, Clifford, and it also contained a wavering Republican, Justice David Davis, who would eventually leave the Court to serve in the Senate as an Independent rather than a Republican in 1877. However, in the matter of Slaughterhouse (1873), Davis's political affiliation was likely still where it had been during on his unsuccessful bid for the presidential nomination under the Liberal Republican banner in 1872.
The other Republican members of the Slaughterhouse majority were all Grant appointees: Samuel Miller; William Strong, a Pennsylvania Republican; and Ward Hunt, one of the founders of the New York Republican Party. Strong was to author the black jury rights decision in Strauder (1880). One of Reconstruction's strongest advocates on the Court, Hunt would pen the lone dissent in U.S. v. Reese (1876) in the Court's first ruling against the constitutionality of Reconstruction legislation.Footnote 28
As for Miller himself, he appears to have been quite sincere in his public proclamation that the core purpose of the postbellum amendments was to protect the former slaves from Southern oppression, because in private he expressed the same sentiments. Miller biographer Charles Fairman cites evidence drawn from private letters to demonstrate that, at least between 1866 and 1869, Miller sincerely (albeit with some regret) supported ratification of the Fourteenth Amendment as a necessary check on both southerners' violent expressions of “fiendish hatred for the Negro” (through attacks on “the negro and Union white man” such as the massacres in Memphis and New Orleans in 1866) and on the Black Codes that virtually reinstated slavery.Footnote 29
In addition to the Democrat, Field, Slaughterhouse's dissent included Joseph Bradley, Noah Swayne, and Chief Justice Salmon P. Chase. Chase, a Lincoln appointee, was a founder of the Free Soil Party and was a vociferous opponent of slavery. Grant appointee Joseph Bradley was a New Jersey Republican who, by 1876 (three years after Slaughterhouse), was viewed as an ideological independent, as demonstrated by his selection to serve on the presidential election commission appointed to resolve the disputed Hayes-Tilden election. The final dissenting justice, Lincoln appointee Noah Swayne, was an antislavery Ohio Republican, who had served as counsel to defend a number of fugitive slaves.Footnote 30
Thus, whether judged by political party alignment or by later votes in Reconstruction-related cases, the voting alignment of the Slaughterhouse Court presents no clear pattern that might explain a conscious turning away from the incorporation meaning of the Fourteenth Amendment. The only change in the Court's personnel by the time of Cruikshank is that Chief Justice Morrison Waite, a cofounder of the Ohio Republican Party, replaced Chief Justice Chase. In the period between the Cruikshank decision (1876) and the pro-Reconstruction decisions in which the seven Republicans all voted in favor of jury rights for blacks (1880) the only change was that David Davis, who had split with the Republican Party by this point, was replaced with John Marshall Harlan, a staunch supporter of Reconstruction.
Based on this evidence, then, judicial ideology does not appear to explain why the Miller majority chose to draw the line dividing federal power from state power in a place so starkly different from where they had ample reason to know Congress wanted it drawn. In this article, I will attempt to uncover the motivation behind that choice and offer a rereading of the Slaughterhouse decision that offers potential answers to the puzzles discussed above. To do this, I foreground both the legal and the societal context of the 1870s.
Within the legal context, I examine cases that bookend the Slaughterhouse decision in the 1870s: circuit court case U.S. v. Hall (1871), decided by Woods;Footnote 31 the Ku Klux Klan cases of 1871 and 1872, which the Supreme Court avoided deciding on the merits;Footnote 32Blyew v. U.S. (1872); and the nearly unanimous U.S. v. Cruikshank decision of 1876, where—in contrast to the Slaughterhouse decision, which offered little more than general guidelines because incorporation was not directly at issue—the Court confronted and rejected the argument that the Fourteenth Amendment enabled the federal government to secure First or Second Amendment rights against private violence, where a state was neglecting to do so.
Answers must also be sought outside the legal arena: the societal context of this period was marked by numerous episodes of violence perpetrated by armed white mobs across the South. This is important because there is evidence that this armed violence was, at the time of Slaughterhouse, a prominent issue for decision-makers both in Congress and the executive branch. Moreover, awareness of this armed violence was fresh in the justices' minds; they had just confronted this very issue in the Ku Klux Klan cases in the two terms immediately preceding Slaughterhouse.
Finally, I treat as settled the scholarly case that the intent of the 39th Congress was to incorporate the personal rights of the first eight amendments (along with other rights mentioned in the Constitution, such as habeas corpus) into the Fourteenth AmendmentFootnote 33 and I posit that the justices on the Slaughterhouse court would have been well aware of Congress' intent.Footnote 34 After this examination of the social and legal environment in which Slaughterhouse was argued, I will suggest that within this social environment lies the key to understanding the Court majority's rejection of Bill of Rights incorporation in Slaughterhouse along with the more thorough expression of that rejection in Cruikshank, even in the face of Congressional intent to the contrary.
II. Providing a Motive for Slaughterhouse
My argument is based on the understanding that, in practical terms, ongoing mass violence across the South in the early 1870s would have made incorporation of the Second Amendment against state governments look problematic. As such, I agree with those scholars who depict Justice Miller's 1873 decision as not aiming to impede Reconstruction; however, I expand on this argument by explaining why Miller and his majority cohort went beyond the issues at the heart of Slaughterhouse to reject what they almost certainly knew to be Congress' incorporationist intent.Footnote 35 I am suggesting that the most plausible motive for this rejection was a desire to avoid incorporating the Second Amendment against state governments.Footnote 36 The incorporation question became prominent in several circuit court cases from the two years prior to the Court's Slaughterhouse decision, cases where the federal enforcement of Reconstruction against armed violence was under challenge. I turn to those cases.
In U.S. v. Hall (1871), Circuit Court Judge William B. Woods upheld a prosecution under the Enforcement Act of 1870 for deprivation of the First Amendment rights of free speech and peaceable assembly via private white violence against blacks. Heeding advice offered in correspondence with Supreme Court Justice Bradley, Woods read the First Amendment free speech and assembly rights as having been incorporated against the states by the Fourteenth Amendment's privileges or immunities clause. He similarly followed Bradley's advice to treat “state inaction or incompetency” to protect these rights for blacks as grounds for federal intervention under the equal protection clause, arguing that a failure to protect one group was equivalent to denying that group equal protection.Footnote 37
Additional key evidence is found in the Ku Klux Klan cases that the Supreme Court essentially dodged in 1872. In two of three cases, the specific issue of Second Amendment incorporation confronted the Court: In response to federal indictments for interfering with black citizens' Second Amendment right to bear arms, the Klansmen's attorneys argued that Second Amendment rights were not subject to federal protection. In both these cases,the two-judge panel below was divided on the issue of “whether the right to keep and bear arms is a right granted and secured by the Constitution of the United States” (and therefore over whether a conspiracy to deprive others of the right to bear arms could be federally prosecuted under Section 6 of the Enforcement Act, which punished conspiracies to interfere with constitutionally secured rights.). In the first case, though the Court examined the certificate of division of opinion from the judges below on the topic, the justices were ultimately persuaded by the arguments of Attorney General George Williams to deny its own jurisdiction for the case. In the second case, although the two lower court judges once again certified that they divided over the incorporation question, defense attorney John Ficken opted not to pursue the issue and dropped it from his appeal.Footnote 38 While the Supreme Court offered no significant rulings, it is undeniable, then, that, through these Ku Klux Klan cases, which came before the Court in the term immediately preceding the Slaughterhouse decision, the justices were exposed to and familiar with the use of incorporationist legal theory to apply the Second Amendment at the state level.Footnote 39
Moreover, the Klan cases' Second Amendment facet was widely publicized in the years leading up to Slaughterhouse. In fact, the Klan's vicious opposition to arming blacks in the South Carolina militia was at the heart of the racial violence that plagued the state in 1869. Driven to investigate the causes of this violence, Congress issued two separate reports on Klan activity in 1872. In the minority report, Democrats insisted that Klan violence was a matter of self-defense motivated by the supposedly legitimate goal of disarming the black militiamen who had allegedly provoked the violence. Conversely, in the majority report, Republicans portrayed Klan violence for what it was—terrorism– and prominently noted that one goal of these marauders was to deprive black people of their Second Amendment rights. The South Carolina piece of this conflict over black militias led to a declaration of federal martial law across nine counties. The publicity generated by the conflict in Congress, declarations of martial law, and, of course, spectacularly gruesome Klan attacks ensured that Second Amendment incorporation was a high profile issue in the early 1870s.Footnote 40
The Klan's violent activities in South Carolina immediately prior to Slaughterhouse were hardly unique—the South was, in fact, in a state of chronic armed violence in the period preceding both Slaughterhouse and Cruikshank. Responses to this extended postbellum-era insurgency, included, at one time or another, declarations of martial law at both the federal and state levels, as well as a host of “near-martial law” state-level responses. Indeed, a comparison to the recent turbulence of post-U.S.-invasion Iraq is not far-fetched.Footnote 41 At the time of the Court's 1872 refusal to decide the Klan cases on their merits, court dockets included more than 1,200 pending Enforcement Act trials for crimes ranging from murder or conspiracy to murder, to interference with First or Second Amendment rights, to interference with voting rights.Footnote 42
On 13 April 1873, one day before the Court handed down the Slaughterhouse decision, a pitched battle between white supremacists and black members of the state militia erupted in Colfax, Louisiana, which eventually ended in the death of nearly every black participant. This event is of particular significance as its perpetrators would come before the Court in U.S. v. Cruikshank (1876), where the Court would finally have to confront, and would squarely reject, a Second Amendment incorporation claim.
To understand the significance of the Colfax Massacre, it is helpful to examine Louisiana's political environment in the month preceding the event. In March 1873, a dispute over gubernatorial election results led to armed conflict in New Orleans between the official (Republican-supported) black militia and a competing white militia headed by the losing gubernatorial candidate. In this situation, the official militia successfully fought off the white insurrectionists while taking few casualties. Unfortunately, the official militia's success in New Orleans did little to quell the political unrest surrounding the contested elections. In mid-April 1873, a similarly organized group of whites clashed with the black militia at the Colfax courthouse in Grant parish. This time, however, the white forces were responsible for the deaths of anywhere from 100 to 400 black militia, many of whom were shot after they had surrendered. (The scores of arrests that followed would be the genesis of the cases that would eventually make its way to the Supreme Court in the form of U.S. v. Cruikshank.)
In response to the escalating tensions, local whites organized the Crescent City White League, which would be responsible for organizing, among other things, the assassination of six Republican officials. On 14 September 1873, 3,500 Leaguers (including numerous Confederate Army veterans) assaulted and overwhelmed similar numbers of blacks organized as militiamen and the Metropolitan Police of New Orleans, and occupied the statehouse, city hall, and arsenal before withdrawing rather than face superior numbers of federal troops mobilized by President Grant.Footnote 43 Apart from the ongoing use of federal troops and federal prosecutions to stem race-based slaughter in the South at the time of the Slaughterhouse decision, several Southern states under Republican leadership had, in recent years, found it necessary to implement widespread martial law or martial law-like proceedings.Footnote 44
It makes sense, then, to imagine that southern Republican state governments (of which there were few remaining in 1873) would have wished to enact some sort of restrictions on the “keep[ing] and bear[ing of] arms” by those other than members of the official militia.Footnote 45 (Granted, even if Second Amendment rights had remained, per Congressional intent, incorporated against the states, judges could arguably have allowed some state regulation of arms-bearing under the emergency conditions that were prevalent. Incorporation, however, would have made the whole process more difficult and litigation-fraught, and thus might well have looked particularly risky to the Court majority by 1873.)
White southerners' armed insurgency continued throughout the period between Slaughterhouse and the Court's explicit rejection of Second Amendment incorporation in Cruikshank. For example, in 1874, a series of armed “skirmishes” ensued in Arkansas between competing self-proclaimed militias, each backing rival claimants of victory in the disputed legislative and gubernatorial elections of 1872. The armed conflicts continued until President Grant intervened in May 1874. In Louisiana, according to historian Eric Foner, “Every election between 1868 and 1876 was marked by rampant violence.” In August 1874, two Republican county leaders in Alabama were assassinated; mobs destroyed blacks' homes and crops and attacked polling places (one poll-worker was killed while guarding a ballot box, which was subsequently seized and torched). Klan-type groups initiated a “reign of terror” across the state, openly firing upon unarmed blacks headed for ballot boxes, killing seven and wounding dozens, and using public threats of armed force to drive uncounted others away from the polls. In Mississippi, bands of armed whites kept blacks from the polls in 1874 in Vicksburg and drove the black sheriff out of town. When a posse of armed blacks showed up from the state capital, their pistols and shotguns proved no match for the long-range rifles of the white forces. By the time President Grant intervened with federal troops in early January 1875, as many as 300 blacks had been murdered in the state.Footnote 46 Against this backdrop of violence across the South, U.S. v. Cruikshank was argued before the Court in mid-January 1875, less than two weeks after Grant's intervention in Mississippi.
Cruikshank was not the only case to emerge out of the regional racial violence to play a potentially critical role in the incorporationist debate. A year before the Slaughterhouse decision was handed down (but after lawyers had already argued the case), the Supreme Court did decide one case on the merits that involved anti-black violence in the South. Blyew v. U.S. would have impressed upon the justices not only the viciousness with which some southern whites were attacking their black neighbors, but also the feebleness of the federal government as a national policing system for dealing with such violence.Footnote 47 This case concerned an exceptionally brutal ax murder by two white men of a black family that included a blind 97-year old grandmother, both parents, a daughter, and a son who had been left for dead, but who lived long enough to give eyewitness testimony under oath. In addition, a second daughter, who survived by hiding from the attackers, was able to give eyewitness testimony.Footnote 48 Because Kentucky law prohibited blacks from testifying against whites, the case was removed to federal court under § 3 of the 1866 Civil Rights Act, which provided,
That the district courts of the United States … shall have, exclusively of the courts of the several States, cognizance of … all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act. (Ch. 31, § 3, 14 Stat. 27)
The first section of the act had plainly specified that black citizens now must have the same “right … to … give evidence” as white citizens. Defense counsel pointed out to the Court that to interpret witnesses in a criminal case as persons being “affect[ed]” by “the cause” would render all laws in Kentucky unenforceable due to judicial backlogs, because any person charged with a crime could then insist on use of a black witness and therefore removal to federal court, and there existed only two federal courts to serve the entire state. The Supreme Court chose to interpret persons affected by the “cause” in criminal cases to be only the prosecutor and the accused and threw the case out of federal court. Blyew was then indicted in state court but fled from the authorities before he could be convicted.Footnote 49
In light of these circumstances, it is quite plausible that, in Slaughterhouse, Justice Miller was seeking to avoid the shoals of Bill of Rights incorporation since this (because of the Second Amendment) could have hampered a state's ability to deal with armed violence. However, it would also appear, that based on his claims in his “general purpose” language, Miller sought to read the Fourteenth Amendment in such a way as to allow for focused protection by the federal government of the newly granted civil rights of blacks (pushed through Congress by his own party).Footnote 50 The plausibility of this surmise rests on the view that Miller and the rest of his majority viewed the state governments as in need of the power to regulate armed violence and that in their view to slap the Second Amendment on these governments would worsen rather than improve the situation.
Based on available evidence, my assertions regarding Miller's intentions are clearly compatible with several key elements of Slaughterhouse's history. First, my approach fits with Miller's background as someone who had been motivated to join the Republican Party and to change state of residence due to his hostility to slavery, as well as with his privately expressed belief that the Fourteenth Amendment was needed to protect blacks from the mad violence of southern white mobs. My argument also fits with the fact that the Slaughterhouse majority was four-fifths Republican, as well as the fact that the three of these Republican justices still on the Court in 1880, along with the three other Republican justices remaining from the Cruikshank Court upheld black rights to serve on juries in three cases decided in 1880.Footnote 51 Finally, my argument is supported by Miller's description of the three postbellum amendments as meant to protect the blacks from oppressions common at the time.
Finally, the most contemporaneous bit of evidence as to the 1873 Court's attitudes on race and Reconstruction can be found in its disposition of Railroad Co. v. Brown, a case decided in November 1873, just seven months after Slaughterhouse.Footnote 52 At issue in this case was a railroad corporate charter granted by Congress in 1863 to extend a rail line from Virginia through the District of Columbia to connect to the Baltimore and Ohio line. In 1868, the company was being sued for having forced a “colored” woman to sit in a car so designated, instead of allowing her freely to choose her seat, even though the charter stated that “no person shall be excluded from the cars on account of color.” In its defense, the company essentially made a “separate but equal” claim by insisting that it had complied with federal law because it had not excluded “coloreds” from all “the cars”; rather, the passenger in question was merely excluded from the “whites-only” car. The 1873 Court would have none of this. In a unanimous decision explicitly linking segregated railroads to badges of slavery, the Court noted:
It was the discrimination in the use of the cars on account of color, where slavery obtained, which was the subject of discussion at the time, and not the fact that the colored race could not ride in the cars at all. Congress, in the belief that this discrimination was unjust, acted. It told this company, in substance, that it could extend its road within the District as desired, but that this discrimination must cease, and the colored and white race, in the use of the cars, be placed on an equality. This condition it had the right to impose.Footnote 53
What the Court majority did to Fourteenth Amendment law, then, in Slaughterhouse was to treat the generality of Corfield v. Coryell fundamental rights of free-persons-in-a-free-society (understood as civil rights of state citizenship) to be (as Justice Washington had said in Corfield) amenable to reasonable restrictions at the state level that were up to each state.Footnote 54 However, just as Corfield had effectively stated, “however you restrict them, they have to be alike as to out-of staters,” Miller reads the Fourteenth Amendment to say, “however you states restrict these rights, they have to be alike as to the two races, black and white, or as to the two peoples, the former enslavers and the former slaves.” This rule of non-discrimination as to basic rights is what Congress sought to accomplish in the 1866 Civil Rights Act, and what it then entrenched (per Miller in the Slaughterhouse opinion) in the equal protection (not the privileges or immunities) clause. This is, in fact, a broadly accepted, non-controversial point regarding the Slaughterhouse majority cohort.
What this article offers is a suggested motive for the Slaughterhouse majority's moving the Fourteenth Amendment protection from the privileges of immunities clause over to the equal protection clause: namely, a desire to avoid Second Amendment incorporation. My novel suggestion regarding judicial motives in Slaughterhouse is influenced not only by the salience of the problem of armed violence in 1873 and the salience of the Second Amendment as a legal and political issue, but also by several oft-neglected passages in the Cruikshank opinion, which I detail in the following section.
If all this is correct, did the Miller majority knowingly turn the privileges or immunities clause into an utter nullity in rejecting incorporation in the Slaughterhouse and Cruikshank decisions? I contend that the majority stopped just short of this point. If it is correct that the majority cohort viewed the granting of state citizenship in the Fourteenth as the granting of basic civil rights to blacks, protected from state race-based infringement by the equal protection clause (which then, like the 1866 act, forbids race-based discrimination but does not allow for a complete federal assumption of the definition of citizens' basic rights), what did they make of the privileges or immunities clause? As the first sentence of the Fourteenth gives state citizenship to blacks, and the equal protection clause enforces that right, so the rest of the first sentence gives national citizenship to blacks and the privileges or immunities clause protects them in the attendant rights. What did it protect? It protected just what the Dred ScottFootnote 55 decision had denied. Dred Scott had said that blacks, even if citizens of a state, could not be national citizens in the sense of having constitutional rights to invoke the diversity of citizenship jurisdiction of the federal courts.Footnote 56 The privileges or immunities clause (per Miller's opinions) now says states cannot insist that their state citizens somehow differ among themselves or are otherwise restricted in their access to the privileges or immunities of national citizenship, such as access to the federal courts. Although one might have assumed that the supremacy clause already denied states such a power once the first sentence of the Fourteenth Amendment made blacks citizens, the Dred Scott (1856) ruling had specifically rejected access to federal courts by all persons of African descent. Under Dred Scott, a suit by a black citizen of Massachusetts against a black citizen of New Hampshire could not be taken up in federal court under diversity of citizenship jurisdiction. In short, the privileges or immunities clause, like the first sentence of the Fourteenth Amendment is now being read by the Slaughterhouse majority as a response to the Dred Scott holding, in that it specifically underlines that states cannot abridge such federal rights as access to federal courts. They did not, then reduce the clause to an utter nullity; rather, they reduced the clause to a mere matter of emphasis.
III. What is the Evidence?
A. Circumstantial
The evidence for the Second Amendment motivation of the Slaughterhouse majority is largely circumstantial. The most compelling circumstances include the prevalence of armed violence in the South; the Court's prior (virtually concurrent) unofficial confrontation with the Second Amendment issue in the Klan cases in 1871 and 1872; and the fact that it was white southern Democrats (not the pro-Reconstruction northern Republicans) in Congress who, in the immediate wake of the Slaughterhouse decision, touted the incorporation intent of the privileges or immunities clause.Footnote 57 To the congressional Democrats, the right to bear arms would have protected white vigilante groups (which, by this point, were prominent and active throughout the South)—the very groups whom the Miller majority might now be trying to avoid shielding from state regulation.
There is additional circumstantial evidence that the Miller majority in Slaughterhouse had reason to be concerned about the Second Amendment consequences of incorporation. The KKK cases occupied not only the prosecutorial and judicial branches of government. From April 1871 through February 1872, a Congressional Joint Select Committee to investigate Klan violence was busily recording and compiling twelve volumes of testimony (featuring extensive descriptions of Klan attacks designed to disarm blacks) and developing competing reports on the subject. The Republicans' (majority) report prominently featured Klan activity aimed at disarming southern blacks, including former Union soldiers, as part of the effort to uphold the traditions of slavery. In response, the Democrats' (minority) report was replete with claims of the wrongfulness of arming black militias, allegations of black-instigated trouble while disarming white militias, and complaints that “the white men are denied the right to bear arms or to organize, even as militia, for the protection of their homes.”Footnote 58
Also, in his April 1872 report to the House on his enforcement of the Civil Rights Act of 1871, President Grant also expressed a desire to use federal power to secure Second Amendment rights. He explained that the nine South Carolina counties had been put under martial law in order to address Klan activities, which were designed,
by force and terror to prevent all political action not in accord with [their own]…, to deprive colored citizens of the right to bear arms and of the right to a free ballot, to suppress schools in which the colored citizens were taught, and to reduce [them]… to a condition closely akin to that of slavery.Footnote 59
In sum, the evidence undergirding the supposition that Miller's Slaughterhouse majority cohort were reading the Constitution in such a way as to channel—rather than undo—Reconstruction is partly circumstantial. First, it fits their likely Second Amendment concerns, which, I posit, would have been driven by the rampant violence across the South; by discussions of the right to bear arms in Congressional testimony, commentary, and reports; by discussion of the right in federal Klan prosecutions and in President Grant's report; and by the Court's having been presented with this issue in the first of the Klan cases. In addition, my assertions are politically compatible with later rulings in Railroad v. Brown, Strauder, Neal, and Ex parte Virginia. In the Slaughterhouse decision, the majority opinion breaks with the presidential and congressional position that the right to bear arms itself is a privilege of citizenship and thus under the federal government's protective aegis. Instead, the decision grants that, should one racial group's rights receive unequal protection under the law, then the federal government is constitutionally authorized to intervene.
One can locate indirect support for this Slaughterhouse interpretation also, in certain largely neglected passages from the Cruikshank decision handed down in 1876. At first blush, because Cruikshank both dismissed indictments of whites convicted in the murder of blacks and accepted the U.S. v. Reese ruling that voided two sections of the Enforcement Act of May 1870, the Cruikshank decision certainly appears to be a direct assault on Reconstruction.Footnote 60 Because the 1876 Reese-Cruikshank duo represents the first Supreme Court declaration of unconstitutionality with respect to Reconstruction, the matter deserves more thorough exploration. How could it be that the Court is merely trying to channel rather than undermine Reconstruction in the very decisions that would begin to hack away at it? Although the Reese decision has no direct bearing on incorporation, a brief digression to discuss it is warranted, because it appears to show the Court coming up with extreme interpretations that could be explained only by intense animus against Reconstruction.
In U.S. v. Reese, the Court threw out Sections Three and Four of the 31 May 1870 Enforcement Act because, although Sections One and Two spoke of interference with voting rights “on account of race, color, or previous condition of servitude,” Sections Three and Four relied for this point on the shorthand phrase, “as aforesaid.” Despite the phrase's obvious meaning of “on account of race, [etc.],” the seven justices in the majority ruled that these sections could not count as “appropriate legislation” under the enforcement section of the Fifteenth Amendment.Footnote 61 Their opinion was based on the idea that, because the Fifteenth Amendment produced such a “radical change” in the federal-state arrangements, “[n]othing [in the penal aspects of the law] should be left to construction.” All terms in the statute should be “explicit.”Footnote 62 In other words, every time Congress intended an issue to be qualified “on account of race,” it had state, not imply, those words.
In the lone dissent, Justice Ward Hunt stated the obvious: This reading of the statute, in light of the plain meaning of its actual language and well-known political context was so strained as to be “almost ridiculous.”Footnote 63 It is quite possible that the obvious perverseness of the majority's reading of the statute in Reese has contributed directly to the image of the 1876 Court as out to bury Reconstruction.
However, there may have been more at work in the Reese decision than is readily apparent in the Court's language. Because Reese was indicted under the statute as written, the Court was therefore obligated to deal with it in those terms. However, throughout 1873 and 1874, Congress had recodified federal laws and had quietly omitted the two key words “as aforesaid” from these sections. By the time of the Cruikshank decision, the recodified version of the statute did actually state what the majority accused it of meaning.Footnote 64 The majority's having perversely interpreted that phrase in the original statute as saying nothing was one way it could act to force Congress to reinsert the original sense into the statute with the inclusion of the phrase, “on account of race.”Footnote 65
B. Cruikshank, Incorporation, and the Guaranty Clause
In U.S. v. Cruikshank, the Supreme Court voided the convictions of three white murderers convicted for their participation in the Colfax massacres. For this outcome, the Court deployed four separate lines of constitutional reasoning. First, the Court rejected four of the sixteen counts of the indictments (six, seven, fourteen, and fifteen), which concerned interference with the right to vote, on the grounds that no racial motivation of the perpetrators was alleged (or proved). The Fifteenth Amendment forbade racial discrimination in voting but did not guarantee voting as such. Although the words of the Fifteenth Amendment forbid race-based denials or race-based abridgment of the vote “by the United States, or by any state,” (in other words, anticipating federal enforcement only when government officials acted to abridge the vote), the Waite Court was prepared to allow federal protection of the vote even against private racially-motivated violence, as long as the racial motivation was in the charge and was proved.Footnote 66
Waite's second line of argument rejects the idea that First or Second Amendment rights have been incorporated via wholesale incorporation of the Bill of Rights through the privileges or immunities clause against state governments. The Second Amendment, he says, “has no other effect than to restrict the powers of the federal government.”Footnote 67
As to the First Amendment, he distinguishes between peaceably assembling for any lawful purpose and, by contrast, assembling to “petition Congress for redress of grievance or for any thing else connected with the … national government.”Footnote 68 Only the latter is protected as “an attribute of national citizenship” “by the United States.”Footnote 69 The former remains in the hands of the state police power. In this section, Waite recapitulates Miller's Slaughterhouse opinion. This time, however, Bradley concurs silently. (This rejection of incorporation, incidentally, breaks with Justice Bradley's circuit court rationale for the case. Although he had retained First and Second Amendment incorporation, he argued that private action could not violate those rights because under the Fourteenth Amendment state action was required for a violation of those rights.Footnote 70)
Thirdly, Waite throws out those counts alleging interference with either due process of law or equal protection of the law, on the grounds that these specific Fourteenth Amendment clauses refer only to actions by states, not by private persons. Neither clause “adds any thing to the rights which one citizen has under the Constitution against another.”Footnote 71 He is ruling out congressional enforcement of either the equal protection or the due process clauses against private persons, as distinguished from states.
Then (fourthly), interspersed within his arguments both on the First Amendment right to assemble peaceably for any lawful purpose and his arguments on the right to be equally protected by the laws in one's person and property, Chief Justice Waite inserted several statements about the demands of a republican form of government. For instance, he writes that the “very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.”Footnote 72 Waite further notes that the “equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power.”Footnote 73
While the conventional reading of this “if” phrase is to take “power” as a reference to legitimate authority, as distinguished from effective capacity, in fact Waite's statement has close echoes not only in the Bradley lower court opinion described above, but also in speeches made by stalwart supporters of Reconstruction in the Senate, in an extended discussion of Reese and Cruikshank that transpired within days of the decision. Whereas Chief Justice Waite put the force of constitutional authorization in the republican form of government clause to skirt what he saw as the state action limitations of the equal protection and due process clauses, Senator Oliver Perry Morton (R–IN) placed the authorization of federal power in the equal protection clause and in the Fifteenth Amendment:
When a State government utterly fails to protect a large class of her people, that is denying them the equal protection of the laws. It is the duty of the State to protect every class of her population and when a state fails to do it … it is denying equal protection of the laws, and Congress can come in and furnish that protection. This was the understanding with which both these [Fourteenth and Fifteenth] amendments were passed … and we all know it . … [I]f the State by its government failed to protect a part of her people, or if she were unable to do it, if anarchy prevailed, that failure… of the State [denies equal protection]. That was the understanding we had of the Fourteenth and Fifteenth Amendments … and this whole country knows it.”Footnote 74
Chief Justice Waite pointedly adds to his equal protection discussion the fact that, “There is no allegation that this [depriving others of equal benefit of laws] was done because of race or color of the persons conspired against.”Footnote 75 If he were simply making the argument that Congress cannot act to enforce the equal protection clause unless there is unconstitutional state action to restrain, there would have been no reason for him to add these passages. If one takes the words seriously, a rationale for federally punishing racially motivated attacks on persons and property becomes apparent, as Justice Bradley's circuit court opinion would have permitted under (evidently) either the Thirteenth Amendment or some sort of combination of the citizenship clause of the Fourteenth and the privileges or immunities clause of the Fourteenth.Footnote 76 However, Justice Waite's, and now the Supreme Court's, rationale for allowing this protection would be the republican form of government clause. Waite's implicit suggestion was that Congress and the federal executive invoke their duty to guaranty a republican form of government to the states (under Article IV, § 4) in situations where a state's failure to stem private race-based violence showed that it was not “within its power” to secure republican government.Footnote 77 Such government, according to the Waite Court, included both the right to petition government for redress of grievance, and the same right for black persons as is enjoyed by white persons “to the full and equal benefit of all laws and proceedings” of the state “for the security of their respective persons and property.”Footnote 78
I am thus suggesting that the most sensible way to read this set of arguments is as follows: (1) The Court is rejecting Second Amendment incorporation against state governments; but (2) is inviting the federal government, if it again gets mobilized in a pro-Reconstruction direction, to legislate to protect the rights of assembly and political expression against private violence as part of its power under the clause that assures that the United Sates will guaranty a republican form of government to every state. This approach eliminates the troublesome specter of Second Amendment incorporation, allowing states to regulate to reduce armed violence, but protects those freedoms mentioned in the First Amendment that are needed for a republican form of government. (3) Finally, the Waite opinion for Cruikshank invites the federal government to produce more particularly drawn indictments that specify racial animus behind private violence or a pattern of non-enforcement of state laws for the protection of blacks as such. The Court implies that it will uphold such indictments as proceeding (again) from the republican form of government clause. Under this clause there would be no state action requirement to block federal punishment of merely private wrongs. Now that blacks have been freed by the Thirteenth Amendment and made citizens by the Fourteenth, they and their descendants are implicitly guaranteed the basic rights of free persons in a free society (subject to reasonable police power limits), including the right to be free of group-based denial of equal security under the laws through state inaction. Such inaction would amount to a state failure to provide a republican form of government and would make federal intervention appropriate under the guaranty clause.
In Cruikshank, these guaranty clause passages can be interpreted as rescuing the rights of political expression and of voting (at least in situations where the state is refusing to protect them for a specific class of its citizenry) from the Court's Slaughterhouse-Cruikshank rejection of incorporation per se. These concerns would have played to the pragmatic as well as the principled side of the Republican Party. To the degree that southern violence could succeed in violently suppressing Republican Party gatherings and the votes of southern blacks (by far the most solid Republican voting bloc), the Republican national majority would be threatened. Indeed, having lost the House overwhelmingly and most southern state legislatures in the 1874 election, this majority was hanging by a thread at the time the Cruikshank decision was handed down in March 1876.Footnote 79 Michael McConnell has described the 1876 election season as possibly the “most violent, fraud-ridden, and tumultuous in history,” and has noted that people were openly predicting another civil war over the election outcome.Footnote 80
Even though the federal executive essentially ceased using federal troops to protect black rights in the South after the Hayes-Tilden election was settled, Chief Justice Waite's willingness (expressed in the Cruikshank reasoning) to allow federal prosecutions for violent private interference with voting rights, as long as the indictments were more carefully framed, was not lost on the federal government. Almost immediately after Cruikshank, Chief Justice Waite himself displayed his willingness to support federal prosecutions by upholding indictments against whites charged with violent interference with black voting rights during the 1876 campaign in South Carolina.Footnote 81 The Department of Justice (although massively underfunded, to put it mildly) continued its prosecutions of voting rights violations in the South, until Congress repealed the relevant laws in 1893.Footnote 82 The department launched more than 1,200 prosecutions between 1877 and 1893 in the former Confederacy.Footnote 83 (Second Amendment rights were another story—any discussion of incorporation was buried for good with the Cruikshank decision.)
In terms of Republican Party principles, Chief Justice Waite's turn in Cruikshank to the clause guarantying a republican form of government (Art. IV, Sec.4) as the grounding for federal enforcement of black civil rights against private violence had impeccable credentials. The link between “essential principles of republican government” and the protection (entrenched in the Fourteenth Amendment) of a distinct “portion of the population” to whom a state “systematically refuses or neglects to [give] protection” was elaborated by no less mainstream an authority than Thomas M. Cooley in his widely consulted 1873 edition of Story's Commentaries on the Constitution.Footnote 84 Chief Justice Salmon Chase, the most outspoken opponent of slavery on the Slaughterhouse Court had penned the unanimous opinion in Texas v. White (1869) to uphold congressional Reconstruction as authorized by the guaranty clause.Footnote 85
The guaranty clause approach of the Cruikshank opinion also had sturdy political roots. Republican candidates had been invoking the guaranty clause regularly in speeches defending Reconstruction policies between 1867 and 1870.Footnote 86 Discussion of the clause figured prominently in the February 1870 debates over readmission of Virginia and Mississippi to the Union.Footnote 87 Just three months later, Congress enacted the first of the Ku Klux Klan Enforcement Acts, under which Cruikshank and his criminal associates had been found guilty. The guaranty clause, combined with its companion domestic insurrection clause had figured prominently in 1871 Congressional defenses of the constitutionality of the Enforcement Act of 20 April 1871 (the Ku Klux Klan Act). In a 30 March 1871 statement, Representative Austin Blair (R–MI) defended the act, and offered the following supplement to the Fourteenth Amendment arguments circulating at the time:
Considering the whole of the article four, section four, together, I do not hesitate to say that a fair construction of it will authorize the Government to intervene in a State to suppress domestic violence where the state authorities cannot, or through complicity, will not apply for such intervention. The mandate to guaranty to each State a republican form of government, and to protect it, on application, against domestic violence, will authorize such protection without the application where the necessity arises, although the state authorities willfully refuse to apply for aid and plainly intend to allow one half of the people to destroy the other half.Footnote 88
Notably, the Senate committee appointed five days after the Reese and Cruikshank decisions to investigate the “force, fraud, and intimidation” against blacks and their allies in the 1875 Mississippi election, and to recommend appropriate legislation to deal with the problem picked up on Waite's guaranty clause suggestion. In August 1876, the committee opted to ground its legislative recommendation not on the power to secure Fifteenth Amendment rights nor on the Fourteenth Amendment's equal protection clause, but rather on the republican form of government guarantee: “The United States has guaranteed to the State of Mississippi a republican form of government, and this guarantee must be made good.”Footnote 89 The recommendation of laws to be passed came in the most general of terms, and with the House controlled by Democrats, no more concrete proposals to protect voting rights were put forth in this Congress.
IV. What's Wrong with this Picture? Limits of the Argument
To be sure, the case I present in this article is hardly air-tight. Even if one can get past the fact that the Supreme Court was releasing convicted murderers from a racially-motivated massacre to see that its reasoning in Cruikshank was not necessarily undermining Reconstruction, there are at least two lingering doubts about the argument presented here that deserve acknowledgment. First, one must wonder why the Supreme Court would not state its desires in a more direct manner. What it said in Slaughterhouse was not, “Second Amendment incorporation would be a disaster for the large part of the U.S. that is attempting to deal with serious outbreaks of armed violence, so we have to alter the meaning of the privileges and immunities clause.” Instead, the Court wrote that the butchers' attorneys (along with the dissenters) were contending that the privileges or immunities clause relegated to federal protection such everyday matters as had been described in Corfield v. Coryell: “protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole”; that such a reading would turn the national government into the basic governing power; and, “We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”Footnote 90 But then, rather than selecting a plausible mid-point of incorporation, the Court interpreted congressional intent as emptying the clause of any new contribution to the constitutional order.
Had the Court actually looked for congressional intent in congressional testimony, it would have had to concede incorporation, of, at a minimum, First and Second Amendment rights. However, it would hardly be acceptable to state something akin to “We like First Amendment incorporation but not Second.” It is at least plausible that the Court found it more seemly to indicate vaguely that the Bill of Rights had not been incorporated against the states, and then later to find other ways to protect rights of peaceable assembly. In Cruikshank, although it continues to prohibit incorporation per se, it suggests that protections for peaceable assembly and voting rights are incidents of republican government that the federal government is free to protect as such.
The second weakness of my argument concerns the durability of the guaranty clause line of argument. If this approach had such sturdy roots, why did it wither so quickly? In Ex Parte Yarborough (1884), one can still see faint glimmerings of it.Footnote 91 By 1882, the only remnants of the Cruikshank Court were Chief Justice Waite (Cruikshank author) and Justices Miller (Slaughterhouse author), Bradley (defender of incorporation in his Slaughterhouse dissent) and Field (lead dissenter in Slaughterhouse). Yarborough was a unanimous ruling that upheld convictions of white insurgents for conspiring to go in disguise on a public highway to assault a black person as a way of intimidating that person out of voting in, or out of advocating a candidacy in, federal elections. Because Congress limited the reach of the statute at issue to plainly federal matters, the case does not directly test the hypothesis here; however, the Court does plainly state that securing the purity of elections is essential “in a republican government like ours.”Footnote 92
The reason the guaranty clause argument withered quickly, one might suggest, is related to its inherent weakness. While this clause did not pose the “state action” problem that Waite saw in the equal protection clause, its wording did contain a clear expectation that federal help for dealing with violence would come “on application of the Legislature or Executive [of the state],” rather than whenever the Congress or president thought necessary. The Cruikshank court was looking for a constitutional locus for a federal power to secure to all free persons equal privileges under the law in instances where the state government was failing to do so for a distinct class of persons. By the time the U.S. v. Harris decision that effectively nullified an anti-lynching provision in one Klan Enforcement Act was handed down in 1883, the Court had moved to a state-failure-to-protect reading of the congressional power to enforce the equal protection clause.Footnote 93 This became the Court's effective substitute for Cruikshank's guaranty clause argument until the politics of court personnel changes rendered it a dead letter under the truly anti-Reconstruction Fuller Court. In Harris, the Court quotes from Cruikshank on the federal obligation to “guaranty that the states do not deny equality of rights” but notes that the federal statute in question was not within Congress's power to enact because it applied to culprits:
When the state has been guilty of no violation of its provisions; … when no one of its departments has … denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the state, as enacted by its legislative, and construed by its judicial, and administered by its executive departments, recognize and protect the rights of all persons,—the amendment imposes no duty and confers no power upon congress.Footnote 94
Congress, the Court was insisting, would explicitly have to limit the reach of its Fourteenth Amendment laws to instances of state failure to protect a distinct group of its citizens.
V. Conclusions
In order to unravel the puzzle of the Supreme Court's denial of incorporation in Slaughterhouse, I have examined the more detailed rejection of incorporation in Cruikshank and presented a more Reconstruction-friendly reading of Cruikshank than is conventional.Footnote 95 Although Cruikshank's specific outcome (the release of three white murderers) left the indelible impression that this decision was saying by deed what Dred Scott had stated in words—that the black man in this country had no rights that the white man was bound to respect—nonetheless, the Cruikshank Court took pains to offer constitutionally valid avenues for congressional and executive steps to protect the freed slaves. As such, my interpretation accounts for (1) the concurrence by a majority of eight in the reasoning—all the Republicans on the Court including Bradley, the Slaughterhouse incorporationist; (2) the extended language about the requirements of a republican form of government, which is not needed to settle the issues of the case; and (3) the language concerning a need to allege a race-based animus behind the violence.
In the eyes of the Cruikshank Court, the absence of state action could eliminate the equal protection clause as the avenue to federal power to prosecute; however, there is no reason for the Court to mention the lack of a racial animus accusation, unless the Court is planning to treat such an allegation as legitimating the federal power to prosecute future cases under a different part of the Constitution. The Court appears to point to the guaranty clause, as supplemented in the Thirteenth and Fifteenth Amendments, as that part.
It is thus a mistake to judge Cruikshank simply as a piece of the sign-off of Reconstruction that occurred after the 1876 election in which Rutherford B. Hayes secured the presidency with a promise to stop enforcing the rights of southern blacks. Cruikshank frees three murderers as the cost of assuring the country of what leading Republican spokesmen had been saying since the war's end—and what the Court majority had first adumbrated in Slaughterhouse—the Republican Party did not plan or wish to license the federal government to supplant state governments as the basic law enforcers. Rather, the party line on the Thirteenth and Fifteenth Amendments was that these simply empowered the federal government to secure these rights (of free persons and of voting) for the freed slaves. Cruikshank continued to allow such federal enforcement as long as indictments were carefully drawn.Footnote 96
Many in Congress had insisted that the Fourteenth Amendment would protect all Americans' fundamental rights, or Bill of Rights privileges, from abridgment by state governments; however, armed violence was so prevalent in the South, and Second Amendment rights so prominent in the discourse of Bill of Rights protections, that the Supreme Court “interpreted” that meaning out of the privileges or immunities clause. The Supreme Court has never put that meaning back with respect to the Second Amendment, and, once Cruikshank squarely confronted Second Amendment incorporation Justices Bradley and Woods, both of whom had earlier endorsed Bill of Rights incorporation, abandoned this position.Footnote 97 Although the Court in the 1870s did not match Congress's original intention regarding the privileges or immunities clause, perhaps the Court's stance was the wiser one, at least in terms of the Second Amendment.
APPENDIX
U.S. v. Cruikshank [excerpt from 92 U.S. 542, 551–55]
[Salient aspects of the reasoning are highlighted as follows: (a)underlining shows portions where the Court is rejecting the idea that First or Second Amendment rights have been incorporated via wholesale incorporation of the Bill of Rights through the privileges or immunities clause against state governments. Such incorporation would have applied the Second Amendment as a limit on the powers of state governments. (b)Italicization illustrates where the Court establishes the state action requirement for federal enforcement of the Fourteenth Amendment. (c)The bolded portions point in the direction of potential new civil rights legislation or more narrowly focused new federal enforcement against private action violating civil rights.]
The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government …
The first amendment to the Constitution… assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, 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.
The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States.The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever.
The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effectthan to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constitution of the United States.
The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, ‘of their respective several lives and liberty of person without due process of law.’ This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States …. 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. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society . … These counts in the indictment do not call for the exercise of any of the powers conferred by this provision in the amendment.
The fourth and twelfth counts charge the intent to have been to prevent and hinder the citizens named, who were of African descent and persons of color, in ‘the free exercise and enjoyment of their several right[s] and privilege[s] to the full and equal benefit of all laws and proceedings, …, enacted or ordained by the said State of Louisiana and by the United States; and … in force in the said State and District of Louisiana … for the security of their respective persons and property, then and there, at that time enjoyed …within said State and District of Louisiana by white persons, being citizens of said State of Louisiana and the United States, for the protection of the persons and property of said white citizens.’ There is no allegation that this was done because of the race or color of the persons conspired against. When stripped of its verbiage, the case as presented amounts to nothing more than that the defendants conspired to prevent certain citizens of the United States, being within the State of Louisiana, from enjoying the equal protection of the laws of the State and of the United States.
The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.
No question arises under the Civil Rights Act of April 9, 1866 (14 Stat. 27), which is intended for the protection of citizens of the United States in the enjoyment of certain rights, without discrimination on account of race, color, or previous condition of servitude, because, as has already been stated, it is nowhere alleged in these counts that the wrong contemplated against the rights of these citizens was on account of their race or color.
