United States v. Cruikshank

Context

In the five years following the end of the Civil War, Congress adopted several measures that together removed race as a barrier to African Americans’ right to vote. The change was piecemeal in approach but revolutionary in impact. In March and July 1867 and March 1868, the Reconstruction Acts provided for the enfranchisement of African Americans so as to allow them to participate in fresh elections to establish new state constitutions in ten former Confederate states. African Americans also won election as delegates to these conventions, and the ten state constitutions that eventually emerged from this process secured their right to vote. In July 1868 the Fourteenth Amendment guaranteed citizenship for former slaves and equal protection under the law for all, and, while recognizing that the right of suffrage remained one reserved to the states, it provided that a state’s representation in the House of Representatives would be reduced in proportion to the state’s restrictions upon suffrage. That year, over half a million African Americans voted in the presidential election, providing the Republican candidate Ulysses S. Grant with his popular majority—though he would have still claimed victory in the Electoral College had blacks not voted in such numbers.

Although Republicans achieved much with the enfranchisement of most southern blacks, blacks still could not vote in many other states, including key northern states such as Ohio and Pennsylvania. Republican efforts to secure suffrage for blacks in several northern states between 1865 and 1868 usually fell short of success. With Grant elected, Republicans turned to amending the Constitution once more, this time to remove barriers to voting for American citizens based on “race, color, or previous condition of servitude,” as the Fifteenth Amendment would state. Such phrasing recognized that states remained the primary determiners of suffrage qualifications for their citizens but forbade those states from depriving black citizens of the right to vote based on their race. As constitutional amendments are ratified by state legislatures, not by popular vote, and the Republicans then controlled enough state legislatures for ratification, the Fifteenth Amendment became part of the Constitution in 1870.

Southern white supremacist terrorists first targeted black voters during the 1868 presidential contest. By 1870 Congress decided to take action, and on May 31 it passed the Enforcement Act of 1870, designed to provide federal protection for black voters and the means to prosecute white terrorists. In April 1871 another Enforcement Act, also known as the Ku Klux Klan Act, authorized President Grant to suspend the writ of habeas corpus in the effort to subdue such domestic terrorism: Grant used these powers to pursue the Klan in South Carolina in the fall of 1871. However, the Ku Klux Klan Act was of limited duration, and it expired in 1872. That year, a presidential election year, violence broke out in Louisiana during a closely contested local election whose results were disputed. Both Democrats and Republicans claimed victory; with Congress declining to count the state’s electoral vote, it remained unclear for weeks which party would gain control of the state government, including the governorship. Eventually the Republicans prevailed—but not without outbreaks of violence, the most sensational of which happened in Colfax, in Grant Parish.

Established in 1869 and named after the nation’s eighteenth president, Grant Parish is located along the Red River, north of New Orleans, in the heart of Louisiana; the county seat located at Colfax is named after Grant’s first vice president, Schuyler Colfax. It soon witnessed its share of political friction and violence: Both parties claimed victory in the 1872 elections. Clashes between blacks and whites subsequently increased, and in the early spring, blacks seeking protection began flocking to the shelter of the Colfax courthouse. Efforts to prevent a confrontation proved futile, and some three hundred whites gathered outside the courthouse. On Easter Sunday, April 13, 1873, the whites first demanded that the blacks surrender; when that proved unavailing, they allowed women and children to depart. Soon after, a firefight between the two sides commenced. Eventually the whites launched an assault on the courthouse, set it on fire, and tracked down those blacks who had fled from the building, killing some and capturing others. That night, the whites slaughtered the remaining black prisoners. Estimates of the dead for the entire day ranged from fifty to some four hundred black men; a federal investigation settling upon 105 known dead black men, with the fates of dozens more remaining unknown.

Federal officials indicted ninety-eight men under the terms of the Enforcement Act of 1870, among them, William J. Cruikshank, John P. Hadnot, and William D. Irwin, who, along with six other men, had been taken into custody by federal authorities. The nine men were tried in New Orleans before the U.S. circuit court judge William B. Woods. The prosecuting district attorney, James R. Beckwith, with a view to presenting a clean case, carefully narrowed the number of victims to two—Levi Nelson and Alexander Tillman, who had not been involved in resisting the whites by force. (Indeed, Nelson survived the massacre and testified for the government.) A first trial acquitted one defendant, while Woods declared a mistrial for the other eight defendants when the jury was unable to agree on a verdict. Those eight men underwent a second trial in May 1874, and on June 10 three men—Cruikshank, Hadnot, and Irwin—were found guilty of violating section 6 of the Enforcement Act of 1870, which stipulated that if two or more people conspired to violate the provisions of the act or to “oppress” any citizen by trying to prevent him from exercising his rights under federal law or the Constitution, such an act would be punished as a felony, with possible fines and imprisonment.

During the second trial, Judge Woods was joined for short periods of time by the Supreme Court associate justice Joseph P. Bradley, who appeared in New Orleans as part of his duties as a federal circuit-court judge—an onerous additional duty performed by all justices of the Supreme Court at the time. Woods was inclined to uphold the convictions, but Bradley dissented and was determined to explain why. His detailed opinion carefully defined federal power to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments. He argued that while violence inflicted for racial reasons was well within the jurisdiction of federal law, that motive had to be proved: It was insufficient to argue simply that conflict between people of different races must be due to the racial difference. Unless race as a motive could be established, cases of criminal violence should be handled in state court. Turning to the case at hand, Bradley argued that as the indictment did not expressly specify that Nelson and Tillman’s rights as U.S. citizens had been violated owing to their race, there was no justification to treat them under federal law. It was an opinion narrow in its reasoning but broad in its implications. As the district attorney who prosecuted the case later complained, “If the demolished indictment is not good, I am incompetent to frame a good one”; Bradley had come close to implying just that. As Bradley and Woods divided on the propriety of the convictions, the punishment was placed in abeyance, or “arrested,” while the Supreme Court heard the case.

Between the time of the massacre at Colfax in April 1873 and the Supreme Court’s release of its decision nearly three years later, Republican Reconstruction policy suffered a series of serious setbacks that all but doomed the federal government’s efforts to protect African Americans as free people, as citizens, and as voters and officeholders. In several southern states, including Alabama, Arkansas, Mississippi, and Texas, Republicans lost their hold on power as the result of political circumstances, terrorism, and internal friction. In Louisiana and Mississippi, violence played a key role in Democrats’ resurgence; although Republicans barely held on to power in Louisiana, they lost it in Mississippi, where the Democrats embraced as a slogan a pledge that they would regain power peaceably if they could and forcibly if they must. An economic depression in 1873 had long-term effects and, combined with debates over monetary policy and tales of Republican corruption and malfeasance, resulted in the Democrats’ reclaiming control of the House of Representatives in 1874, shutting down any further efforts to pass legislation to protect black citizens from violence and intimidation.

Even President Grant, who had once expressed his willingness to protect black rights, allowed frustration to get the better of him. In a special message to the Senate in January 1875, he made specific reference to the Colfax massacre, “a butchery of citizens … which in bloodthirstiness and barbarity is hardly surpassed by any acts of savage warfare.” Nearly two years later, he declared that while critics of Reconstruction waxed eloquent about the missteps of southern Republican regimes, “every one of the Colfax miscreants goes unwhipped of justice, and no way can be found in this boasted land of civilization and Christianity to punish the perpetrators of this bloody and monstrous crime.” Grant at length grew exasperated with the fractious behavior of southern Republicans and eroding support in the North for protecting the fruits of victory. When Mississippi’s governor requested that federal troops be dispatched to his state in 1875, the president declined, explaining that “the whole public are tired out with these annual autumnal outbreaks in the South” and would no longer support such federal intervention policy. In fact, Grant himself had nominated Bradley to the Supreme Court in 1870, and it was his administration’s Department of Justice, led by Attorney General George H. Williams, that did not seem equal to the task at hand, as much because of its lack of legal skill as a paucity of resources.

The chief justice when Cruikshank was argued from March 30 to April 1, 1875, was Morrison J. Waite, appointed by President Grant. Waite’s eight associate justices, aside from Nathan Clifford, were all Republican appointees, though two, David Davis and Stephen J. Field (both Abraham Lincoln’s nominees), could no longer be counted as Republicans themselves. Samuel F. Miller and Noah H. Swayne, both also Lincoln nominees, had each hoped to be tapped as the next chief justice; the remaining justices, Ward Hunt, William Strong, and Joseph P. Bradley, had been named by Grant. It was Bradley whose vote while on circuit-court duty in Louisiana brought Cruikshank to the Supreme Court, and he hoped his detailed 1874 opinion would guide the Court’s decision and reasoning. Although ideally justices were to rise above their partisan roots, it was generally assumed that they would most often lean in the direction of their previous party affiliation and view cases in that light. When Congress passed legislation establishing an electoral commission to help resolve the disputed election of 1876, among the five commission members from the Court it was assumed that Clifford and Field would cast their votes for the Democratic case while Miller and Strong would side with the Republican claimant. When the supposedly independent Davis stepped aside to accept election as U.S. senator from Illinois, Democrats wondered whether his replacement, none other than Bradley, would also favor the Republicans. Some Democrats believed otherwise, in part because of Bradley’s actions in the course of events that brought the Cruikshank case before the Court, for he had thereby defied Republican preferences.

In 1873 all of the associate justices who heard the arguments in the Cruikshank case had participated in deciding what became known as the Slaughter-House Cases, with Miller delivering the opinion for a slim five-to-four majority on April 14, 1873—the day after the massacre at Colfax. The cases involved a series of suits testing the constitutionality of a Louisiana law that attempted to regulate the state’s slaughterhouse industry by establishing a private corporation that would exercise sole control over the industry by allocating space to area slaughterhouses. The suits cited the Fourteenth Amendment in support of their claim that the legislation was invalid. Miller’s opinion, allowing the Louisiana law and the controlling corporation to stand, argued that the Fourteenth Amendment’s privileges and immunities clause affects only those rights a person holds as part of U.S. citizenship, not as citizens of a state; furthermore, the primary objective of that clause was rather to protect the federal rights of former slaves. Thus, the Fourteenth Amendment did not protect the butchers’ interests, namely, to freely pursue their chosen vocation, against the interests of the state. Miller’s concept of dual citizenship would appear again in Cruikshank, this time as adverse to the former slaves. Clifford, Strong, Hunt, and Davis had agreed with Miller, while Field, Swayne, and Bradley dissented, along with Waite’s predecessor, Salmon P. Chase.

While many members of the Court at first glance seemed sympathetic to the ends of Reconstruction policy, Bradley’s circuit-court opinion on the Colfax massacre defendants, coming in the wake of Miller’s reasoning in the Slaughter-House Cases, suggested that a majority of the justices were in favor of a strict and narrow explication of congressional legislation, which did not augur well for the prosecution. Moreover, the government’s short brief for Cruikshank proved less than compelling in its argument, especially as it sidestepped Bradley’s circuit-court opinion, failed to mention either African Americans or the Fifteenth Amendment, and mentioned the Enforcement Acts only in passing. It instead focused on just two counts of the indictment that concerned “conspiracy,” arguing that an effort to conspire to deprive anyone of their constitutional rights was punishable under federal law. In contrast, the four briefs filed by the defense—including one by Justice Field’s brother, David Dudley Field—argued at length that the pertinent sections of the Enforcement Act of 1870 were unconstitutional and that the Bill of Rights, far from conferring upon citizens specific rights, simply prohibited their infringement by the federal government and did not apply to state governments. The lawyer Field went so far as to attack the constitutionality of all postwar civil rights legislation, and he sought to bring his arguments before the public by publishing his brief.

All in all, by the time the Supreme Court heard the arguments in the Cruikshank case at the end of March 1875, the political foundations of Reconstruction, flawed as they were, were beginning to erode. By the time the Court released its opinion in March 1876, what had begun as a fighting withdrawal by Reconstruction’s supporters was turning into a full-scale retreat to ensure the political survival of the Republican Party in the 1876 presidential contest.