by Peter Irons
The gunfire from the Colfax Massacre reverberated across the nation. In its wake, Foner reported, “an avalanche of heart-rending pleas for protection descended upon the South’s Republican governors.” But local officials did nothing to prosecute the attackers. Federal investigators, however, identified ninety-six men, who were indicted for violating the Ku Klux Klan Act of 1870. Of this group, only nine stood trial, and six were acquitted by jurors who heard conflicting testimony about their presence at the massacre. Presented with clear evidence of the participation of three men-William Cruikshank, John Hadnot, and William Irwin—the jurors convicted them of conspiring to prevent two black men—Levi Nelson and Alexander Tillman—from “the free exercise and enjoyment of the right to peaceably assemble” and depriving them of “life and liberty without due process of law,” rights guaranteed by “the Constitution and laws of the United States.” Nelson and Tillman had been killed at the Colfax courthouse, but federal officials could not prosecute Cruikshank and his fellow marauders for murder, because that was a state crime. Charging them with depriving Nelson and Tillman of their lives may seem to us like the same offense as murder, but not to the Supreme Court in 1876.
Chief Justice Waite wrote for a unanimous Court in reversing the convinctions of Cruikshank and his fellow Colfax killers. In many wars, Waite’s opinion rivaled that of Chief Justice Taney in Dred Scott in its deliberate misreading of law and history. The Reconstruction amendments had been adopted to reverse Dred Scott, but Waite seemed oblivious to this fact. In his Cruikshank opinion, Waite repeated Justice Miller’s reliance in the Slaughterhouse Cases on Taney’ s distinction between national and state citizenship. And he reached back to Chief Justice Marshall’s opinion in Barron v. Baltimore, decided in 1833, for the proposition that the Bill of Rights did not bind the states to their enforcement.
Waite began his opinion by searching the Ku Klux Klan Act for legal defects. Under the law, the rights “enjoyed” by Levi Nelson and Alexander Tillman and “hindered” by the Colfax conspirators must be among those “granted or secured by the constitution or laws of the United States.” The Chief Justice never mentioned that the two black men had been murdered and could not “enjoy” any rights, or that Cruikshank had "hindered” them by joining in the massacre. He simply shut his eyes to these bloody facts. Waite cited Slaughterhouse for the dubious proposition that “the same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these government will be different from those he has under the other.” Among the rights that Cruikshank had denied to Nelson and Tillman was that of peaceable assembly at the Colfax courthouse, a right guaranteed by the First Amendment. Waite saw two problems, with this "right” as a basis for enforcing the Constitution. First, he read the amendment to require that those who “assemble” must gather "for the purpose of petitioning Congress for a redress of grievances.” The First Amendment makes no such requirement; the rights of assembly and petition are distinct, and the amendment speaks broadly of “the Government,” not just Congress. However, the last clause of the First Amendment is not a model of clarity, and Waite may have correctly parsed its meaning.
He was certainly incorrect, however, in reading its words to require that the blacks who assembled at the Colfax courthouses did not enjoy the protection of federal law unless they had gathered "for consultation in respect to public affairs,” This was clearly one purpose of their assembly, considering the election dispute that brought them together. Waite simply ignored this obvious fact. “Such, however, is not the case,” he stated with no reference to our facts. This deliberate blindness allowed him to conclude that Nelson and Tillman had not gathered with other blacks to exercise any right guaranteed by the Constitution. Consequently, the Colfax conspirators had not “hindered” their "enjoyment” of the First Amendment. Waite’s reading of the Constitution may strike us as tortured or even absurd, but he wrote for a Court that seemed determined to end Reconstruction by judicial fiat.
The second defect Waite found in the Ku Klux Klan Act was that federal law, as he read the Constitution, could not protect black in exercising their right to vote. He reached this conclusion by walking around the Fifteenth Amendment, which prohibits “any State” from denying “citizens of the United States” their right to vote “on account of race, color, or previous condition of servitude.” It would be hard to deny that Nelson and Tillman, after their murders, were denied their right to vote “thereafter” in Louisiana election, as Cruikshank’s indictment charged. But the Chief Justice argued that “the right of suffrage is not a necessary attribute, of national citizenship,” and that states were only bound by the Fifteenth Amendment to protect voters against racial discrimination. Waite looked closely at the indictment and found that “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.” The indictment did, in fact, charge that Cruikshank and his fellow conspirators had deprived persons "of African descent” of their constitutional rights. Were not Nelson and Tillman murdered “on account of” their race? The Chief Justice simply ignored this obvious fact.
Having denied that the Constitution protected the blacks who assembled in Colfax to defend their courthouse, Waite also denied that federal law could protect their “lives and liberty” from murderous conspiracies. He found this charge in the indictment “even more objectionable” than those based on rights to assemble and vote, on two grounds. First, he claimed, the power to bring prosecutions for murder “rests alone with the States.” Waite ignored the fact that Congress had passed the Enforcement Acts because the southern states refused to protect blacks from terrorists like Cruikshank. His opinion reached previously unscaled heights of hypocrisy in quoting the Declaration of Independence for the proposition that the “very highest duty of the States” was to “protect all persons” in their enjoyment of the “unalienable rights with which they were endowed by their Creator.” Louisiana had refused to protect Levi Nelson and Alexander Tillman, or to prosecute their killers. But it was “no more the duty or within the power of the United States” to step in when the states failed in their duty, Waite piously stated.
Waite’s second ground for denying federal power to protect the “lives and liberty” of blacks rested on the Fourteenth Amendment’s provision that prohibits “any State” from depriving “any person” of life or liberty without due process of law. This provision “adds nothing to the rights of one citizen as against another,” Waite wrote. He applied the same reasoning to the charge that Nelson and Tillman had been denied the “equal protection of the laws” of Louisiana, Again, this provision of the Fourteenth Amendment added nothing “to the rights which one citizen has under the Constitution against another.” Under this logic, the only legal remedy that Nelson or Tillman—actually, their families—had against Cruikshank was a private suit for damages for causing their “wrongful death.” In recent years, the families of blacks murdered by white racists have sued the killers in state courts and won substantial damages. But in 1876, this form of legal recourse could not have prevailed in the climate of hostility toward blacks.
Chief Justice Waite’s opinion in the Cruikshank, case slammed every legal door in the face of federal officials who tried—and ultimately failed—to protect southern blacks against intimidation and violence. Not a single justice dissented from this ruling. By 1876, the Supreme Court—and most northern whites—had tired of Reconstruction battles and were ready to surrender to the former Confederates. The reaction of southern whites to Waite’s opinion reflected their sense of impending victory. One prominent lawyer expressed his jubilation: “When the decision was reached and the prisoners released, there was the utmost joy in Louisiana, and with it a return of confidence which gave best hopes for the future.” Needless to say, blacks across the South looked to the future with fear and foreboding.
17
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An Evil Eye and an Unequal Hand”
The Union’s military forces won the Civil War in 1865, but its political leaders surrendered that hard-won victory to the former Confederates over the next twelve years. The two men who succeeded Abraham Lincoln as president—Andrew Johnson and Ulysses Grant—followed appeasement policies that encouraged violent resistance to Reconstruction and weakened Republican resolve to protect the civil rights of the former slaves. Despite the presence of federal troops in southern states, the Ku Klux Klan and other groups that vowed to “redeem” the South were able to terrorize and murder blacks with virtual impunity. The Supreme Court’s decision in United States v. Cruikshank, handed down in 1876, simply underscored the fact that no branch of the federal government would offer southern blacks any protection from the reign of terror that swept the region.
Well before the Cruikshank decision, southern “Redeemers” had backed up their fiery political rhetoric with guns and ropes. Intimidation and violence escalated as the 1874 elections neared. Blacks appealed vainly for protection from bands of armed whites, many of them former Confederate soldiers. “They are going around the streets at night dressed in soldiers clothes and making colored people run for their lives,” black residents of Vicksburg, Mississippi, wrote to the Reconstruction governor. “We are intimidated by the whites. We will not vote at all, unless there are troops to protect us.” A group of Mississippi whites attacked a gathering of black voters in Coahoma County and killed six. The black sheriff, who had been addressing the crowd, fled the area and never returned.
The tactics of terror succeeded. Blacks—and the dwindling number of southern white Republicans—stayed away from the polls in 1874 and Democrats won two thirds of the region’s congressional seats, giving them control of the House, although Republicans still controlled the Senate. Before the new members took office, however, Republicans pushed the Civil Rights Act of 1875 through Congress, a law declaring “that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations” in restaurants, theaters, hotels, and railroads. Based on the enforcement clauses of the Thirteenth and Fourteenth Amendments, early drafts of this law would have required integration of public schools and provided federal enforcement of its provisions.
Before its final passage, the Civil Rights Act was weakened by compromises. Congress eliminated the school integration and federal enforcement provisions, turning the enforcement burden over to individual litigants. Since few blacks had the money to file suits under the law or the fortitude to pursue them in the courts, the new law proved virtually toothless. Even the bill’s supporters expressed weariness and resignation. “Is it possible that you can find power in the Constitution to declare war . . . and pass laws upon all conceivable subjects,” one House Republican challenged his reluctant colleagues, “but can find no power to protect American citizens . . . in the enjoyment and exercise of their constitutional rights?”
The Civil Rights Act of 1875 proved to be the last gasp of the exhausted and embittered remnant of Radical Republicans in Congress. By then, many had deserted their positions and waved the white flag of surrender. Just before House Republicans turned their chamber over to the Democrats, who thirsted for more power and vowed to end Reconstruction, Joseph Hawley of Connecticut spoke in words of resignation. “I have been a radical abolitionist from my earliest days,” he said, but he now felt that “social, and educational, and moral reconstruction” in the South could “never come from any legislative halls.”
Like sharks who smelled blood, Democrats looked forward to an election contest with President Grant, whose two administrations had suffered the cuts of many scandals. Grant longed to run for a third term, but most Republicans considered him a liability. The party’s most popular leader, former House speaker James Blaine of Maine, lost his luster after press reports of his role in an Arkansas land scandal (long before the Whitewater problems of President Bill Clinton). The Republican convention in 1876 turned to Rutherford B. Hayes of Ohio, a man described by Henry Adams as a “third-rate nonentity.” A graduate of Harvard Law School and a three-term governor, Hayes won the nomination and campaigned on a platform of civil service reform, an important issue but one that failed to excite the electorate. The party’s platform completely ignored the issue of Reconstruction. Frederick Douglass, the former slave who feared a new enslavement of his people, challenged the Republican delegates: “Do you mean to make good to us the promises in your constitution?” The answer was silence.
Sensing victory, the Democrats united behind New York governor Samuel J. Tilden, one of the nation’s richest men in a period that rewarded the “Captains of Industry” with enormous wealth. Tilden gained his fortune as legal counsel to railroad and banking magnates like Jim Fiske and Jay Gould, who rewarded him with stock for steering them around the shoals of bankruptcy. “He is connected with the moneyed men of the country,” one supporter wrote. “That is exactly what we want.”
Once again, southern Democrats did not shrink from violence in their search for votes. “Armed bands disrupted Republican meetings, whipped freedmen, and murdered local officials,” wrote Eric Foner. To cite one bloody example, a white mob in Hamburg, South Carolina, attacked a Fourth of July gathering of black militiamen, capturing twenty-five as they fled. Matthew Butler, a former Confederate general and the area’s Democratic leader, reportedly singled out five blacks for summary execution. After the Democrats won control of South Carolina’s legislature, white legislators rewarded Butler with election to the United States Senate.
Considering the violence against black voters, the rift among Republicans, and the Wall Street money behind the Democrats, it was not surprising that Tilden won a majority of the popular vote, by some 300,000 over Hayes. In addition to the “solid South,” Tilden carried the northern states of New York, New Jersey, Connecticut, and Indiana. But the embattled Republicans claimed victory in South Carolina, Florida, and Louisiana, states controlled by blacks and their white supporters. If the nineteen electoral votes from these states (plus one disputed vote from Oregon) went to Hayes, he would prevail in the electoral college by one vote. Without these votes, Hayes would lose to Tilden. The resolution of a great national issue rode on the outcome of this dispute.
Truthfully, the 1876 elections were a mess. Rival governments in the contested southern states presented Congress with rival slates of electors. For the first time since 1800—when the electors were evenly split between Thomas Jefferson and Aaron Burr—Congress faced a real dilemma. Ironically, the Constitution had been amended in 1804 to prevent just this problem. The Twelfth Amendment gave the House the power to choose a president if no candidate gained a majority in the electoral college. But this Amendment did not address the question of disputed electors. It simply provided that the Senate’s president shall “open all the certificates” and count the votes. “The person having the greatest number of votes for President,” the amendment read, “shall be the President, if such number be a majority of the whole number of electors appointed.”
Which candidate had the greatest number of electoral votes in 1876, Tilden or Hayes? Unable to decide the disputed claims, Congress turned the problem over to a blue-ribbon panel of fifteen members: five representatives, five senators, and five Supreme Court justices. The congressmen were divided equally by party, and the bill named four justices, two from each party. The final—and potentially decisive—vote would be cast by a fifth justice, chosen by the other four on the panel. Since only two Democrats sat on the Court at that time, it was certain that the fifth justice would be a Republican. But the expected choice, Justice David Davis, was considered by many to favor Tilden. Democrats in Illinois, however, damaged their party’s cause before Davis was appointed by supporting his election to the Senate, a choice made by the state legislature after the presidential election. Shortly after the Illinois lawmakers named Davis to the Senate, he resigned from the Court.
With Davis no longer available, the four justices on the election panel chose Justice Joseph Bradley, a highly partisan Republican, to join them. Predictably, Bradley voted with his party colleagues to award every disputed elector to Rutherford Hayes. Behind the scenes, Hayes had assured southern Democrats that he would look with “kind consideration” on their demands that Reconstruction end. Tilden’s backers suspected that Illinois Republicans had made deals with “slow-witted” Democrats to remove Davis from the electoral commission. “We have been cheated, shamefully cheated,” complained one Democrat. Those Republicans who supported Reconstruction knew they had lost. “I think the policy of the new administration will be to conciliate the white men of the south,” one lamented. “Carpetbaggers to the rear, and niggers take care of yourself.”
The outcome of the “Stolen Election of 1876” bears directly on the Supreme Court’s reading of the Constitution over the next three decades. In a nutshell, the Court turned its back on the claims of blacks and opened its arms to those of corporations. In large measure, this was a direct result of judicial appointments over the decade that followed the “election” of Rutherford Hayes. The new president had a seat to fill as soon as he took office in 1877, following the resignation of Justice Davis to join the Senate. Hayes paid an enormous political debt in nominating John Marshall Harlan of Kentucky. Born in 1833, Harlan was named for the former Chief Justice, whom his father, a prominent lawyer, greatly admired. Like his namesake, Harlan came from a slave-owning family, had just a year of formal legal education, very little judicial experience, and great political ambition. He was admitted to the bar at the age of twenty, joined the Whig Party, and served as a county judge for one year, his only judicial post before his Supreme Court service. Harlan made an unsuccessful bid for Congress in 1859, served as Kentucky’s attorney general from 1863 to 1867, and lost two races for governor on the Republican ticket in 1871 and 1875. During the 1876 presidential campaign, he played a key role at the Republican convention, swinging his state’s delegates behind Hayes. Harlan’s nomination to the Supreme Court was largely a political reward, but he was also an experienced and widely respected lawyer.