United States v. Cruikshank

Explanation and Analysis of the Document

Waite’s opinion outlines a concept of dual citizenship first developed by the Supreme Court in 1873 in the Slaughter-House Cases. A citizen owed allegiance to both the federal and state governments and, in turn, could expect those governments to protect the specific rights attributable to each jurisdiction. Under this construction it was left to the states to prosecute cases of murder, manslaughter, and homicide as well as most infringements of civil rights.

Although Waite argues that the Fifteenth Amendment in itself does not guarantee the right to vote, he concedes that the amendment’s second section constructed a new constitutional right that could be protected by the federal government, namely, that voters not suffer discrimination “on account of race, color, or previous condition of servitude.” Yet such wording, he contends, means that the fact that Cruikshank and his collaborators were charged with murdering black Republican voters was not sufficient to bring them under the scope of the Enforcement Act of 1870: Prosecutors had to charge—and prove—that the victims were murdered because of their race. The right not to be discriminated against as such was the only relevant right protected under federal law. But the prosecutors did not demonstrate violation of this right in this instance. The chief justice asserts that the indictments were so vague that they did not sufficiently meet the Fourth Amendment standard of informing the accused of the offense for which they were being tried. Had the indictment specified that race was the basis upon which the accused murdered the victims, then and only then would the actions of the accused have come under the Enforcement Acts.

Waite’s opinion mentions the sixteen counts on which Cruikshank, Hadnot, and Irwin were convicted. The first eight counts charged that the defendants “banded together” to deprive Levi Nelson and Alexander Tillman of their rights, while the ninth through sixteenth counts charged, equivalently, that the defendants “conspired” to deprive Nelson and Tillman of their rights. The defendants were charged with seeking to deprive Nelson and Tillman of, in the first and ninth counts, the right to assemble peacefully; in the second and tenth counts, of the right to keep and bear arms; in the third and tenth counts, of the right to not be deprived of life and liberty without due process of law; in the fourth and twelfth counts, of equal rights and equal treatment under law; in the fifth and thirteenth counts, of their rights as citizens by reason of their race; in the sixth and fourteenth counts, of their right to vote; in the seventh and fifteenth counts, of the right to vote without suffering harm; and in the eighth and sixteenth counts, of the free exercise of their rights secured by federal law and the Constitution.

In his opinion, Waite carefully goes through the sixteen counts, which were framed with section 6 of the Enforcement Act of 1870 in mind. That section states that if two or more people “shall band or conspire together” to intimidate or harm “any citizen” to prevent that citizen from exercising his rights secured by the Constitution and federal law, those people could be found guilty of a felony and could be fined, imprisoned, or both. Citing the Slaughter-House Cases, Waite distinguishes between the rights of citizens protected by the federal government and those protected by state government. He reads the Bill of Rights as operating to restrain the federal government, not state governments, and thus quickly sets aside those charges dealing with the right to assemble peacefully and to bear arms. He rather summarily dismisses those counts that addressed the victims’ right not to be deprived of life or liberty without due process, arguing that state governments were to protect those rights. Repeatedly he offers a narrow view of federal power based upon his interpretation of the Fourteenth Amendment; time and again, he argues that the victims needed to seek recourse at the state level.

Waite also criticizes the indictment as too vague in what it alleged. He rejects the fourth and twelfth counts, charging that they failed to claim race as the reason the defendants attempted to deprive Nelson and Tillman of their civil rights, even as he admits that the Fifteenth Amendment did establish a new right, that of exempting citizens from racial discrimination in their effort to exercise the right to vote. He employs the same justification as the reason the defendants attempted to deprive Nelson and Tillman of the right to vote, thus setting aside the sixth and fourteenth counts: He repeats that reasoning in dismissing the seventh and fifteenth counts, which charged the defendants with endangering Nelson and Tillman because they had voted.

This left two pairs of counts: the fifth and thirteenth, which concerned whether Tillman and Nelson had been deprived of their rights as citizens because of their race, and the eighth and sixteenth, which simply said that they had been deprived of their rights as U.S. citizens. Here Waite finds that section 6 of the Enforcement Act of 1870 went beyond the grant of authority extended to Congress in the Fifteenth Amendment by failing to specify race, rendering the section inappropriate; in turn, he finds the counts “too vague and general” and “so defective that no judgment of conviction should be pronounced upon them.”

Waite’s opinion develops the notion of federalism and dual sovereignty, reminding Americans that the Court would not nationalize all rights and grant them federal protection. Having failed to specify the federal right being violated as specified in the Enforcement Act of 1870, the indictment, in Waite’s opinion, was insufficient and could not sustain a conviction. The Fourteenth Amendment offered minimal protection, as it called for federal intervention to remedy state inaction or violation of the Bill of Rights, but, again, the prosecution did not demonstrate the relevant unlawful activity, namely, any such inaction or violation on the part of the state. In sum, although Waite was willing to accept the responsibility of the federal government to protect a voter from finding his right to vote challenged or blocked owing to his race, the chief justice’s decision placed a heavy burden of proof on prosecutors by requiring that they specify that motive and demonstrate it.