Apologies ... from the wrong party
The Senate is expected today to pass a resolution of apology for not having passed federal anti-lynching legislation when it was most needed. Apologies certain are in order, but Congress isn't the party which needs to make them. It's the Supreme Court which owes the apology.
In 1870, Congress passed the Enforcement Act, to enforce the 14th Amendment's mandate that no state violate the privileges and immunities of US citizenship. The Act made it illegal, inter alia, to "injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same..." The penalty was imprisonment for up to ten years.
In 1875, the Court ruled in U.S. v. Cruikshank that lynching a person (actually, a hundred people) did not deprive anyone of the privileges and immunities of national citizenship. (It's relevant to Second Amendment history in that the Court also ruled that disarming people and preventing their assembly were not violations of the 14th Amendment, either). Here's the language. Bear in mind that the Court was playing a word-game along these lines: (1) Privileges and immunities of State and of national citizenship must be different things (why?); (2) If a right existed beforethere was a national government, it must not be a P&I of national citizenship; therefore (3) the more fundamental, and the earlier a right can be seen as existing, the less likely it is to be a federal P&I protected by the 14th Amendment. Here's what the Court held as to the right to life:
"The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, 'of their respective several lives and liberty of person without due process of law.' This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana. The rights of life and personal liberty are natural rights of man. 'To secure these rights,' says the Declaration of Independence, 'governments are instituted among men, deriving their just powers from the consent of the governed.' The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these 'unalienable rights with which they were endowed by their Creator.' Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself."
What makes Cruikshank particularly appalling was that it arose out of the worstracial violence in American history. Sheriff Cruikshank had been a leader of a mob that attacked a group of freedmen occupying a courthouse, burned the courthouse to force them out, disarmed them and murdered over a hundred of them. Here's an account by one of the mob: " the whites slaughtered many of the negroes as they rushed from the burning building, and many were ridden down in the open fields and shot without mercy. Those lying wounded on the court house square were pinned to the ground by bayonets. [About 48 were taken prisoner, and some of the mob were tasked with escorting them to jail.] .... When I got to the garden," continued Mr. Tanner, "I heard Luke Hadnot say, 'I can take five,' and five men stepped out. Luke lined them up and his old gun went off, and he killed all five of them with two shots. Then it was like popcorn in a skillet. They killed those forty-eight." Under the Supreme Court's ruling -- this was no violation of the 14th Amendment and could not be federally prosecuted.
Cruikshank has never, BTW, been overruled. The only way our Bill of Rights liberties (not to mention more fundamental rights such as that against being murdered by State functionaries) became applicable to the States was via the 14th Amendment's due process clause, which the Court only began vigorously to apply in the 1960s. So for virtually the entire period for which the Senate is apologizing, it would have done it no good to pass anti-lynching legislation, since Supreme Court caselaw had held that it exceeded Congressional powers.
Apologies are in order ... but they shouldn't come from the Capitol, but from a building across the street. I'm sure the All Writs Act would have something covering it.
Welcome Instavalanche! While you're here, consider taking a look around the site. It's devoted to the legal aspects of the firearms issue, everything from current Supreme Court actions to Second Amendment history to (occasionally) proposals for legislation. On matters relevant to this post, I've got a review of Robert Williams' book "Negroes with Guns," the story of how he and other black veterans organized, armed themselves, and successfully fought the Klan.
TrackBack URL for this entry:
Listed below are links to weblogs that reference Apologies ... from the wrong party:
» Apologizing for lynchings from rgcombs.blog-city.com
The Senate passed a resolution last night apologizing for its failure to pass anti-lynching legislation. The House passed bills making lynching a federal crime three times, but in the Senate, Southern Democrats blocked the bills with filibusters. [Read More]
Tracked on June 14, 2005 08:58 AM
While we're apologizing, shouldn't the political party that did the filibusters make a special apology?
Posted by: Andy Freeman at June 14, 2005 07:43 AM
Note that the overnight AP news story on this apology stated that previous Senate bills were filebustered by 'southern conservatives' -- no political party specified.
Posted by: JimO at June 14, 2005 09:29 AM
I suspect that if any of you were truly angry about lynchings past and present, you would not be complaining about what party was identified most with them in the media, but would instead spend your energies by calling Thad Cochrane and Trent Lott's office to request that they stop embarrasing the Republican party by refusing to condemn the practice.
Why are you defending the convergence of conservatism with racism? Do you think it helps the cause?
Posted by: Tom at June 14, 2005 12:27 PM
Andy, There were no white Southern Republicans after the Civil War (party of Lincoln!!!).
Southern white folks did not become Republican until the Democrats passed Civil Rights Legislation, (see Strom Thurmand).
Why don't we just have the Southerners make a special apology?
Posted by: Tim Z at June 14, 2005 12:36 PM
Might behoove you to check into the Civil Rights Legislation (see Sen Everett Dirksen (R) for passing and Sen Robert Byrd (D) for filibustering). The legislation would not have passed if the republicans had not voted for it in a much higher proportion than the democrats (see history).
Posted by: dick at June 14, 2005 01:16 PM