US v. Cruikshank—the KKK Acts, the Constitution and the Reconstruction Amendments
Part 2 of 2.
by Tsuhai Nzinga
The investigation into the Colfax massacre lasted almost a year. President Grant had suspended Habeas Corpus and ninety seven white men were indicted. Only nine would face trial. The remaining perpetrators were wholly protected by the white community at large and were never caught. The indictments and subsequent trials were seen as a grave injustice against white men and their supremacy; so much so that not even the presence of Federal troops could inhibit the operation of the hate or the violence. In fact, In August, 1873, the Louisiana District Attorney reported that “These men are desperate…and say that if they are going to be prosecuted for killing negroes on April 13, they might as well kill a few more negroes and radicals.” In the account given by Leeann Keith, former slave and US Marshall Loyd Shorter disappeared without a trace. He was an informer in the Colfax investigation and he had been overheard threatening to shoot one of the murderers “whose bright yellow horse…had cut a prominent figure in the Easter Sunday fight.”
The first trial ended in a mistrial. US Attorney Beckwith, citing the atrocity of the massacre would retry this case, much to the disdain of the white Louisiana populace. Beckwith was appalled by the events of Easter Sunday 1873 and was determined to bring about justice knowing full well that the State of Louisiana could not and would not. The Enforcement Acts gave Beckwith the authority to prosecute and he would do so come hell or high water. And that is exactly what Beckwith was met with. Supreme Court Justice Bradley, who had heard the 1871 appeal in US v. Avery, was riding circuit.
The second trial was renamed US v. Cruikshank, et al. It was originally US v. Nash, et al, Nash having been the ringleader and acting sheriff at the time of the massacre. But he was never apprehended. Beckwith charged the 9 defendants with 16 counts of conspiracy to deprive Negros of their Constitutional rights and conspiracy to commit murder which, if convicted would have to the death penalty. Beckwith was quite serious. The victims in this case were denied and hindered from enjoying their right to vote, to assembly, to bear arms and ultimately denied their right to life.
Beginning on May 18, 1874, the trial would last almost 3 weeks with 188 witnesses being called. Eighty-nine for the prosecution; ninety-nine for the defense. The defense attorney once again tried to object to the indictments not to “quash the indictments…[but] to challenge the very authority of the federal court.” He was not permitted to make his argument at that time; however Supreme Court Justice Bradley who was riding circuit this time around entered the courtroom on May 22, without fanfare during the testimony of a prosecution witness. When the witness stepped down, Justice Bradley, to the objection of Beckwith, opened the floor to the defense attorney and his challenge to the Court’s authority. It is here where Justice Bradley virtually praised the defense attorney’s argument and instructed him to file a motion in arrest of judgment should there be a guilty verdict.
The verdict was handed down. All defendants were found not guilty of murder. Only 3 were found guilty of conspiring to deny the rights of only two Black men. According to author Charles Lane, one newspaper said of the verdict that it “is only another proof of the fearful fact that Southern white men have no rights that Republican officials are bound to respect.” A rather interesting choice of words, echoing the Dred Scott ruling that a Black man “has no rights which a white man is bound to respect.”
And it is in this climate of respect that Cruikshank was decided. It is easy to read the Court’s opinion and see that the ‘respect’ was not for the Black man. In the Circuit Court, Justice Bradley’s ruling was that the 14th Amendment’s due process clause “is not intended as a guaranty against the commission of murder, false imprisonment, robbery or any other crime committed by individual malefactors so as to give Congress the power to pass laws for the punishment of such crimes in the several states generally.” The full Court would agree two years later, ruling also on who has jurisdiction to protect the rights of citizens of a State.
The defendants were white supremacists who had slaughtered Black men who had been elected to public office and/or commissioned and deputized to protect the local government. Those Black men were painted as insurrectionists. They were painted as a dire threat to the quality of life in Grant Parish and elsewhere in the south. Those Black men had no rights which a white man was bound to respect. And the Supreme Court again legalized the lack of respect for the life of a Black man 20 years after Dred Scott.
Justice Bradley and the full Supreme Court said that the acts of individual white citizens could not be punished by the Federal government because that was within the State’s jurisdiction and the Federal government had no authority to infringe upon that jurisdiction. It was up to the State to protect its citizens.
Cruikshank made clear who the protected citizens were. The laws of protected rights belonged to the white man. When the kkk conspired, according to Cruikshank, they were acting as private citizens. The case never acknowledges that Nash, having never been caught, was sheriff and had deputized the white posse. The case never acknowledges that the white, Republican Mayor Kellogg deputized the Black militia and ordered them to protect the seat of government. The case never acknowledges that the actors on both sides were operating under State sanctioned authority.
In fact, the case is decided upon the fact that the kkk militia was acting independently of the laws of the state when in fact they were acting in a political capacity. The Colfax massacre was a political battle for control of the local government. The local government is governed by the State and its constitution. None of this was considered in deciding this case.
Justice Bradley’s ruling that the due process clause “is not intended as a guaranty against …any…crime committed by individual malefactors…” gave way to the kkk reign of terror in 1873. And “[as] summarized by Louisiana Governor William Pitt Kellogg, Bradley’s order had effectively ‘establish[ed] the principle that hereafter no white man could be punished for killing a negro.’” There was no legal protection for Black people…anywhere. Not just in the south. Justice Bradley’s Circuit Court ruling was upheld by the Supreme Court and therefore applied to the entire United States. White men could kill a Black person with impunity across the nation.
It should be kept in mind that the 1871 Joint Select Committee found that:
The KKK has become a political organization whose purpose, as variously expressed, is to put the democratic party up and the radical party down, to oppose the [Reconstruction] amendments to the Constitution, to have a white man’s government, and…“to oppose and reject the principles of the radical party…”
Once the Supreme Court issued its ruling in Cruikshank, Congress took no further action to protect Black citizens. In the same year Cruikshank was decided, there was the first ever contested presidential election where the deal was made to allow the Republican candidate to take office with the promise of the removal of Federal troops from the States of secession.
The reign of terror included massacres and lynchings for the next 150 years. Bryan Stevenson, founder of the Equal Justice Initiative and subject of the move Just Mercy, uncovered more than 4,000 terrorist lynchings by white mobs and the kkk from 1866 to the 1960s. A meme has circulated listing places and dates of massacres—25 total, 18 after the Cruikshank ruling. The application of the 14th Amendment would not apply to states until 1961. But this application still did not extend to Black people. The Supreme Court subsequently created the doctrine of Qualified Immunity, exempting government officials from liability in cases of violations of Civil Rights. This is what the majority opinion in Mapp v. Ohio describes as “grant[ing] the right but in reality…withhold[ing] its privilege and enjoyment.”
US v. Cruikshank legalized white supremist violence by eliminating the Federal protections of the 14th Amendment. By relegating the protection of Constitutional rights to the States, the Supreme Court declared, in no uncertain terms, that Constitutional protections belonged to the white man alone and the effects of this 1876 decision are still being felt today.
The Cruikshank ruling evolved. In 1883 the Court ruled that the “1st and 2d sections of the Civil Rights Act passed March 1st, 1876, [were] unconstitutional…[because the] denial of equal accommodations…imposes no badge of slavery or involuntary servitude...” In 1896 the Court decided Plessy v. Ferguson, legalizing the already existing Jim Crow social conditions of slavery and Reconstruction.
When looking to the history of white supremacy and its evolution, one need look no further than the Supreme Court. white supremist violence was legalized with the Cruikshank decision. The 1876 ruling set the precedent of the ruling class and the attempted demise of the oppressed.
This ruling affected criminal justice dramatically. Because of Cruikshank, Weeks v. US created the ‘golden parachute’ in law enforcement. The Feds could conduct an illegal search and hand the evidence over to a State prosecutor and the ill-gotten evidence was permissible. This “golden” era would not end until 1961 when Mapp v. Ohio was decided, declaring that the 14th Amendment applied to States. It was this ruling that allowed the 1965 Civil and Voting Rights Acts to pass. Cruikshank is THE historical and legal legacy that we need to study, discuss and make everyone aware of. The Supreme Court holds sway…no, the Court determines if Black people are citizens with equal rights. If, and I truly mean if the Court determines that Blacks are equally human and equally citizens with all the attendant rights that such designation means, then all other minorities will enjoy the same.
Inequality started with Black people from the land now called Africa. All things ‘minority’ begin there with Supreme Court decisions from the 1842 Prigg v. Pennsylvania to the 1856 Dred Scott and to the subject of this article, the 1876 US v Cruikshank on to the 1883 Civil Rights cases to Plessy v. Ferguson in 1896. These are the cases that deal directly with Black folk both before and after slavery. Each set a precedent that denied the humanity of Black people.
With the Cruikshank ruling, the Supreme Court upheld white supremacy.
Four of the Justices on the Court in 1876 were Lincoln appointees. Today there are three appointed by 45. This was not an accident. And, like Cruikshank, their decisions will impact us for generations to come.
Civil Rights cases, 109 U.S. 3 (1883); https://supreme.justia.com/cases/federal/us/109/3/
Dred Scott v. Sanford, 60 U.S. 393 (1856); https://www.law.cornell.edu/supremecourt/text/60/393
Keith, L. (2008). The Colfax Massacre: The Untold Story of Black Power, White Terror, & the Death of Reconstruction. New York: Oxford University Press.
Lane, C. (2008). The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction. New York: Henry Holt and Company.
Mapp v. Ohio, 367 U.S. 643 (1961); https://supreme.justia.com/cases/federal/us/367/643/
Plessy v. Ferguson, 163 U.S. 537 (1896); https://www.law.cornell.edu/supremecourt/text/163/537
Pope, J. G. (2014). Snubbed Landmark: Why United States v.Cruikshank (1876) Belongs at the Heart of the American Constutional Canon. Harvard Civil Rights-Civil Liberties Law Review, 49, 385-447. https://scholarship.libraries.rutgers.edu/discovery/delivery?vid=01RUT_INST:ResearchRepository&repId=12643395730004646#13643522370004646
Prigg v. PA, 41 U.S. (16 Pet.) 539 (1842); https://supreme.justia.com/cases/federal/us/41/539/
United States v. Cruikshank, 92 U.S. 542 (1875); https://supreme.justia.com/cases/federal/us/92/542/
Weeks v. US, 232 U.S. 383 (1914); https://supreme.justia.com/cases/federal/us/232/383/
Edwards, L. F. (2015). A Legal History of the Civil War and Reconstruction: A Nation of Rights. New York: Cambridge University Press
United States Congress. Joint Select Committee On The Condition Of Affairs In The Late Insurrectionary States. (1872) Report of the Joint select committee appointed to inquire into the condition of affairs in the late insurrectionary states, so far as regards the execution of laws, and the safety of the lives and property of the citizens of the United States and Testimony taken. [Washington, Govt. print. off] [Web.] Retrieved from the Library of Congress, https://lccn.loc.gov/35031867.
Williams, L. F. (1996). The Great South Carolina Ku Klux Klan Trials 1871-1872: Studies in the Legal History of the South. Athens: The University of Georgia Press.