The Past is Now

Why the federal government stopped protecting Blacks from organized terrorism 150 years ago

When we talk about the present, armed men, aggrieved, demanding the right to carry their guns wherever they choose, in the name of enforcing freedom, we are also talking about any number of epochs in American and world history.   After such men seceded from their country and went to war to enforce their version of freedom — the state gets the final word on whether we can hold slaves or not and what we are allowed to do to them — they were damned if they were going to let some federal government they had already seceded from tell them what to do.   

After the Civil War it was up to Congress, the white supremacist President who succeeded Lincoln and, most especially, the Supreme Court, to decide how things would be settled for former slaves (and everyone else deprived of guaranteed constitutional rights by a state) for the next century.  It wasn’t long after the Civil Rights Act was passed, and to enforce it, the XIII, XIV and XV Amendments were made part of the Constitution, that the Supreme Court settled matters by putting the key to enforcement of all three, the XIVth Amendment, into an almost century long judicially-induced coma.

A few years after the war the rest of the rapidly expanding, war-ravaged nation soon lost any interest in protecting the rights of newly equal citizen Negroes, whose day as the “special favorites of the Law,” in the words of the Supreme Court (in the cruelly ironically titled 1883 Civil Rights cases), was fittingly at an end.  It was decreed that freed slaves must simply get the same rights all poor, powerless white citizens enjoy, no more and, well, actually, a few less. 

As a result of the 5-4 Slaughterhouse decision in 1873, and the even uglier one in U.S. v. Cruikshank, the protections of the XIVth Amendment (as well as XIIIth and XVth) were effectively nullified.   Blacks, and anyone else whose newly established XIVth Amendment rights were violated, were barred from the federal courts for more than ninety years pursuant to Slaughterhouse.  Corporations, ironically, were the main beneficiaries of the XIVth Amendment until the late 20th century.  States were deemed the sole enforcers of criminal violations of civil rights for almost a century, pursuant to the ruling in a series of cases starting with Cruikshank.

The Slaughterhouse cases were initiated by white butchers who the court went out of its way to point out were not the former slaves for whose benefit the lofty and complex XIV Amendment had been crafted.   The court then took pains to set out, in a familiar, crabbed, judicially perverse manner, exactly how limited the rights of federal citizenship guaranteed in the Amendment really were, so called “intent of the framers” (most of whom were still around) be damned.   As often in supremely biased Supreme Court split decisions, the dissent had the better of the argument and now appears prescient.   

But the unappealable 5-4 majority ruled and that was the law of the land for a century – under a tortured interpretation of the Constitution the doors of the federal court were virtually closed to XIVth Amendment cases, unless the plaintiff was a corporation.   The 5-4 decision in Slaughterhouse was as good as, and even more binding than, the historic 9-0 decision in Brown v. Board of Education almost a century later.

The Slaughterhouse court went out of its way to hold that an American’s federal rights were extremely limited, the right to use ports, to travel freely from state to state, to be protected from piracy on the high seas and the right to use navigable interstate waterways. The rest, left up to the states.

Justice Stephen J. Field, writing for the three other dissenters, offered a well-reasoned, far-sighted defense of the principles of liberty guaranteed by our laws.  Fields pointed out the obvious “intent of the framers” of the amendment:

This legislation was supported upon the theory that citizens of the United States as such were entitled to the rights and privileges enumerated, and that to deny to any such citizen equality in these rights and privileges with others, was, to the extent of the denial, subjecting him to an involuntary [83 U.S. 36, 92] servitude. Senator Trumbull, who drew the act and who was its earnest advocate in the Senate, stated, on opening the discussion upon it in that body, that the measure was intended to give effect to the declaration of the amendment, and to secure to all persons in the United States practical freedom.

After referring to several statutes passed in some of the Southern States, discriminating between the freedmen and white citizens, and after citing the definition of civil liberty given by Blackstone, the Senator said: ‘I take it that any statute which is not equal to all, and which deprives any citizen of civil rights, which are secured to other citizens, is an unjust encroachment upon his liberty; and it is in fact a badge of servitude which by the Constitution is prohibited.’


In Corfield v. Coryell, Mr. Justice Washington said he had ‘no hesitation in confining these expressions to those privileges and immunities which were, in their nature, fundamental; which belong of right to citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose the Union, from the time of their becoming free, independent, and sovereign;’ and, in considering what those fundamental privileges were, he said that perhaps it would be more tedious than difficult to enumerate them, but that they might be ‘all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, 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 justly prescribe for the general good of the whole.’

This appears to me to be a sound construction of the clause in question. The privileges and immunities designated are those which of right belong to the citizens of all free governments. Clearly among these must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons.

full dissent

However, 5-4 it was, and for almost a century the privileges and immunities, equal protection of the law, and guarantees of due process the XIVth Amendment was designed to protect, were limited almost exclusively to corporations. The Cruikshank case put the final deadly nail into the coffin of the rights of freed Blacks to be protected from terrorism, making it explicit that only the states could prosecute murders within their borders.  

Cruikshank led a large white mob of Confederate veterans, on horseback with at least one cannon, that overwhelmed a group of Black Union veterans guarding the county seat in Colfax, Louisiana. The vastly outnumbered Blacks were defending their recent electoral victory, the whites, intent on overturning the election results, slaughtered countless Blacks, many of whom had already surrendered.  As enraged mobs will do, when engaging in “legitimate political discourse”.  No white man would go to prison for this slaughter, under the law of Louisiana, or the Ku Klux Klan Act which had been designed to prosecute such atrocities (and had been extremely effective during the short period of its enforcement).

The final word on the lasting meaning of the Civil War, three constitutional amendments and numerous laws guaranteeing equality before the law, went to a narrow majority of one vote on the Supreme Court.  C’est la vie, one supposes.     History shows that if we make strong laws to ban the study of historical subjects that are shameful, we don’t need to feel shame about the past, or worry about its loud reverberations in our own time.  So simple!         

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