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The Specter of the Second Amendment: Rereading Slaughterhouse and Cruikshank

Published online by Cambridge University Press:  09 November 2007

Leslie Friedman Goldstein
Leslie Friedman Goldstein
Affiliation:
University of Delaware
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Extract

In 1866, members of the Joint Committee on Reconstruction introduced the Fourteenth Amendment into the House of Representatives and the Senate, respectively. Several speakers indicated that the force of the new amendment would be to protect basic or fundamental citizen rights against adverse action by state governments, and would allow Congress for the first time to protect such rights against such state action. The clause that would do this was the privileges or immunities clause: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Type
Research Article
Information
Studies in American Political Development , Volume 21 , Issue 2 , Fall 2007 , pp. 131 - 148
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Copyright © Cambridge University Press 2007

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References

1. Congressional Globe, 39th Cong., 1st Sess., 3 Feb. 1866, 1088–95; 8 May 1866, 2542–43. Rep. Bingham makes clear his understanding that the Fourteenth Amendment would apply the privileges listed in the Bill of Rights against state governments by stating that the amendment would overturn Barron v. Baltimore, 32 U.S. 243 (1833), the case that had established the contrary rule. Four years later, Bingham had occasion to discuss the Amendment again on the floor and at this time he said he had specifically re-worded the Amendment in order to make clear that it secured “the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment” (Cong. Globe, 42nd Cong., 1st Sess. 84 [1871]).

2. Cong. Globe, 39th Cong., 1st Sess., 23 May 1866, 2765–66.

3. These included New York Times, New York Herald, National Intelligencer, Philadelphia Inquirer, Chicago Tribune, Baltimore Gazette, Boston Daily Journal, Boston Daily Advertiser, Springfield Daily Republican, Richmond Daily Examiner, Charleston Daily Courier. Halbrook, Stephen P., Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866–1876 (Westport, CT: Praeger, 1998), 36Google Scholar.

4. Bogen, David, “Slaughterhouse Five: Views of the Case,” Hastings Law Journal 55 (2003): 333–98Google Scholar.

5. Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873).

6. There is an enormous body of literature on the Fourteenth Amendment. The modern scholarly consensus reads the intent of the privileges or immunities clause as incorporating against state government the individual liberties of the first eight amendments of the Bill of Rights. Frequently cited in this vein are Curtis, Michael Kent, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC: Duke University Press, 1986)Google Scholar; Amar, Akhil, The Bill of Rights: Creation and Reconstruction (New Haven, CT: Yale Univ. Press, 1998)Google Scholar; and Amar, , “The Bill of Rights and the Fourteenth Amendment,” 101 Yale Law Journal (2000): 1193Google Scholar. Proponents of this view before it gained favor included Crosskey, William Winslow, “Charles Fairman, ‘Legislative History’, and the Constitutional Limitations on State Authority,” University of Chicago Law Review 22 (1954): 1, 2–119Google Scholar; and Justice Black dissenting in Adamson v. California, 332 U.S. 46, 68 (1947). For the view that was prevalent from 1947 until the mid-1980s, see Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding,” Stanford Law Review 2 (1949); Berger, Raoul, The Fourteenth Amendment and the Bill of Rights (Norman: University of Oklahoma Press, 1989), 8, 141Google Scholar.

7. Stanley Kutler commented that the Republicans expected from this Court a “judicial imprimatur for their policies” (Judicial Power and Reconstruction Politics [Chicago: University of Chicago Press, 1968], 162).

8. That Slaughterhouse effectively nullified the privileges or immunities clause is a conclusion on which the consensus is longstanding and overwhelming. For example, Sanford Levinson's statement that it “ruthlessly eviscerated the Clause of practically all operative meaning” is typical (Levinson, , “Some Reflections on the Rehabilitation of the Privileges or Immunities Clause of the Fourteenth Amendment,” Harvard Journal of Law and Public Policy 12 (1989): 71, 73Google Scholar.

9. Newsom, Kevin Christopher, “Setting Incorporationism Straight: A Reinterpretation of the Slaughterhouse Cases,” 109 Yale Law Journal (2000): 643Google Scholar; Wildenthal, Bryan, “The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment,” Ohio State Law Journal 61 (2000): 1051Google Scholar. See also Amar, “Bill of Rights and the Fourteenth Amendment,” 1258 (suggesting that Miller's Slaughterhouse opinion is more ambiguous as to incorporation than the “conventional reading” of it maintains); Palmer, Robert C., “The Parameters of Constitutional Reconstruction: Slaughter-House, Cruikshank, and the Fourteenth Amendment,” University Illinois Law Review (1984): 739Google Scholar (struggling to reconcile an incorporationist reading of Slaughterhouse with the plainly anti-incorporationist Cruikshank decision).

10. 92 U.S. 542 (1876). To the extent that part of Cruikshank relies on the companion case of U.S. v. Reese, 92 U.S. 214 (1876), it was not unanimous, but that is not central to the argument here. Also, in Cruikshank, one justice, Justice Clifford (the lone Democrat on the Court) concurred as to result but did not reach any constitutional issue, limiting his concerns to the sloppiness of the drafting of the indictments.

11. Bogen, “Slaughterhouse Five” at 381, 382; Wildenthal, “Lost Compromise,” 1075 (citing several authorities). Southern states had restricted freedom of speech and press with respect to the subject of slavery, and the postbellum Congress specifically aimed to forbid this practice by means of the privileges or immunities clause.

12. Halbrook, Freedmen. Cottrol, Robert J. and Diamond, Raymond T., “The Second Amendment: Toward an Afro-Americanist Reconsideration,” 80 Georgetown Law Journal (1991): 309–61, 346Google Scholar; Cornell, Saul, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2006), 166–73)Google Scholar. Cornell offers several citations to congressional statements leading up to adoption of the Fourteenth Amendment about the need on the part of blacks for protection of their right to bear arms). John Norton Pomeroy, the dean of New York University Law School, in his widely respected 1868 textbook, An Introduction to Constitutional Law, urged ratification of the Fourteenth Amendment as a remedy to situations where a state constitution might guarantee the right to bear arms but then deny this right to black persons (Well-Regulated Militia, 186–87, nn.40–41).

13. Two were Seventh Amendment cases—Edwards v. Elliott, 88 U.S. (21 Wall.) 532 (1874) and Walker v. Sauvinet, 92 U.S. 90 (1876)—where the Court unanimously refused incorporation of the right to jury for civil cases; the third was a Second Amendment case—Presser v. Illinois, 116 U.S. 252, 267–68 (1886)—where the Court did the same as to the right to bear arms. These buttress the reading of Slaughterhouse and Cruikshank as rejecting incorporation. Interestingly, the (losing) attorney in the Presser case, who argued that the Second Amendment right to bear arms should apply against the state government of Ohio, was Sen. Lyman Trumbull (R–CT), principal draftsman of the Thirteenth Amendment and of the 1866 Civil Rights Act, and prominent supporter of the Fourteenth Amendment.

14. Quote from Curtis, “Resurrecting the Privileges or Immunities Clause and Revising the Slaughterhouse Cases without Exhuming Lochner,” Boston College Law Review 38 (1996): 1–106, 76Google Scholar. As early as 1878, some legal scholars had begun to condemn the Slaughterhouse Cases as a backtracking on the protection of former slaves that was the purpose of the Fourteenth Amendment (Royall, William, “The Fourteenth Amendment: The Slaughterhouse Cases” Southern Law Review 4 [1878]: 558, 576n.)Google Scholar. See also Richard L. Aynes, “Constricting the Law of Freedom: Justice Miller, The Fourteenth Amendment, and the Slaughter-House Cases,” Chicago-Kent Law Review 70 (1994); Davis, Abraham and Graham, Barbara L., Supreme Court, Race, and Civil Rights (New York: Sage, 1995), 16Google Scholar (“For blacks, this interpretation of the Fourteenth Amendment meant that protection of their rights remained the responsibility of the states that were least likely to provide that protection.”); Foner, Eric, Reconstruction: America's Unfinished Revolution 1863–1877 (New York: Harper and Row, 1988), 529Google Scholar (noting “Few of these rights [that Miller said the privileges or immunities clause does protect] were of any great concern to the majority of freedmen.”); Smith, Rogers M.. Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, CT: Yale, 1997), 333Google Scholar (“[T]he majority had to know that the ruling's stress on states' powers might also mean deference to efforts to preserve or rebuild the old racial status quo.”); Wang, Xi, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860–1910 (Athens: University of Georgia Press, 1997), 124Google Scholar (“The decision cleared the way for southern acts of terror that the federal enforcement mechanism had been designed to challenge or hinder”); and Kaczorowski, Robert, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866–1876, (New York: Oceana, 1985), 150–59Google Scholar (“The Court must have know[n] the debilitating consequence its decision would have on the efforts of Department of Justice officers to enforce civil rights in the federal courts of the South,” 159); and Kaczorowski, “The Chase Court And Fundamental Rights: A Watershed In American Constitutionalism,” N. Kentucky Law Review 21: 151–91.

15. Slaughterhouse Cases, 83 U.S. (10 Wall.) 36, 71 (1873).

16. Ibid., 70.

17. Hall, Kermit L., “Political Power and Constitutional Legitimacy: The South Carolina Ku Klux Klan Trials, 1871–1872,” Emory Law Journal 33 (1984): 921–51Google Scholar; Kaczorowski, Politics of Judicial Interpretation, xii, xiv, 110–13; and Boston Globe, 1 Aug. 1873, “Ku Klux. Positions of the Government on the Subject—Prosecutions to be Suspended, But the Laws to Be Enforced,” 1. The Globe article makes public a private letter from the Attorney General promising to treat with maximum leniency, and to drop most prosecutions of, persons being held in the KKK trials, on the understanding that the Klan had agreed to behave itself in the future.

18. Labbé, Ronald M. and Lurie, Jonathan, Slaughterhouse Cases Regulation, Reconstruction, and the Fourteenth Amendment (Lawrence: University Press of Kansas, 2003), 12Google Scholar. These authors treat Justice Miller as having been sincere in support for Reconstruction but either as not aware that Congress meant to incorporate fundamental civil rights against state governments by means of the privileges or immunities clause, or as not in a serious way addressing the matter of Bill of Rights incorporation in this opinion, but speaking primarily to the matter of economic regulations (217–19). They characterize Miller as concluding simply that, “whatever the privileges and immunities of U.S. citizens may be, the rights claimed by the butchers were not among them” (216).

19. Kaczorowski, Politics of Judicial Interpretation, xii, xiv, 110–13.

20. Railroad Co. v. Brown, 84 U.S. 445 (1873); Strauder v. West Virginia, 100 U.S. 303 (1880), Ex Parte Virginia, 100 U.S. 339 (1880), Neal v. Delaware, 103 U.S. 350 (1880).

21. Blyew v. U.S., 80 U.S 581 (1872); U.S. v. Cruikshank, 92 U.S. 542 (1876). The only scholars I have encountered who take seriously this question are Benedict, Michael Les, “Preserving Federalism: Reconstruction and the Waite Court,” Supreme Court Review (1978): 39–79Google Scholar (arguing that the commitment to Reconstruction by the Chase and the Waite Courts has been underestimated by scholars and that it differed significantly from that of the truly anti-Reconstruction, post-1888 Fuller Court); and Ross, Miller biographer Michael, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civil War Era (Baton Rouge: Louisiana State University Press, 2003)Google Scholar. Ross's analysis closely parallels Benedict's as to Miller's views on Reconstruction.

As in this article, Benedict's and Ross's analyses take seriously that the Waite Court might have been sincere in developing a reading of the Thirteenth through Fifteenth Amendments that would protect the civil rights of blacks while honoring states’ rights. This essay goes beyond their analyses, however, both in attempting to locate a specific contextual reason for the Court's rejection of incorporation of the Bill of Rights in Slaughterhouse and in focusing on the Guaranty Clause reasoning of Cruikshank to demonstrate that the decision is not so anti-Reconstruction as its concrete results cause it to appear. Two other essays also exhibit parallels to the analysis here, in that they depict the Waite Court in Cruikshank as attempting to moderate rather than block or undo Reconstruction, but their primary focus is the state action doctrine, and they do not examine the incorporation question. These essays are Frantz, Laurent, “Congressional Power to Enforce the Fourteenth Amendment against Private Acts,” Yale Law Journal 73 (1964): 1353Google Scholar– and Brandwein, Pamela, “The Civil Rights Cases and the Lost Language of State Neglect,” in The Supreme Court and American Political Development, ed. Kahn, Ronald and Kersh, Ken (Lawrence: University Press of Kansas, 2006), 275–325Google Scholar.

22. Ely, John, Democracy and Distrust: A Theory of Judicial Review (Cambridge MA: Harvard University Press, 1980), 22–23Google Scholar.

23. Benedict, “Preserving Federalism.” In Justice of Shattered Dreams, Michael Ross seconds Benedict's account, and supplements it by an emphasis on Justice Miller's interest in permitting legislative regulation of the economy (chap. 8; see fn.36 below).

24. Benedict, “Preserving Federalism,” 45, 47–53. See also Nelson, William E., The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, MA: Harvard University Press, 1988), 64–90, 123Google Scholar; Bogen, “Slaughterhouse Five,” 379–82; Cornell, Well-Regulated Militia, 174.

25. Goldman, Robert, Reconstruction and Black Suffrage: Losing the Vote in Reese and Cruikshank (Lawrence: University Press of Kansas, 2001), 5Google Scholar.

26. Slaughterhouse [the decision], 78.

27. Lane County v. Oregon, 74 U.S. (7 Wall.) 71 (1868) makes plain this commitment. In this case, the Court unanimously struck down a federal law regulating legal tender, in deference to a state law about paying taxes.

28. 92 U.S. 214 (1876). Justice Clifford concurred as to the result in the case, but did not reach the constitutional merits.

29. Fairman, Charles, Mr. Justice Miller and the Supreme Court 1862–1890 (Cambridge, MA: Harvard University Press, 1939), 191–92Google Scholar, citing letters of 1866 and 1869. Although Fairman dates the 1866 letter at 11 Feb. 1866, the massacres it discusses took place in early May and at the end of July of that year (Foner, Reconstruction, 261–63). Miller's more recent biographer, Michael Ross, also treats the expressed concern for protecting the rights of freedmen as sincere, noting that the legislature whose statute the Miller majority was upholding was a legislature that contained a notoriously sizable percentage of blacks (Ross, Justice of Shattered Dreams, 201–2, and chap. 8). Ronald Labbé and Jonathan Lurie suggest that what largely fueled the image of the Slaughterhouse regulation law as a product of corruption was the fact that the Louisiana legislature contained thirty elected black representatives (Labbé and Lurie, Slaughterhouse, chaps. 1–4). Thus, they read the Slaughterhouse decision as in this dimension antiracist.

30. Website of Professor Michael Ariens of St. Mary's School of Law at http://www.michaelariens.com/ConLaw/justices/swayne.htm; last accessed on 8 Jan. 2007.

31. 26 F.Cas. 79 (C.C.S.D. Ala. 1871).

32. U.S. v. James W. Avery, 13 Wall. 251 (1872); Ex Parte Jefferson Greer, Sup. Ct. App. Case Files No.6200 (1872) U.S. v. Elija Sapaugh, Sup. Ct. App. Case Files No. 6482. The Supreme Court refused to decide Avery on the grounds that the decision of these issues was properly within the jurisdiction of the lower court; it refused even to grant a writ of habeas corpus in the Greer case; and the U.S. Attorney General George Williams forced the District Attorney Daniel Corbin to drop the Sapaugh case with a nolle prosequi (Williams, Lou Falkner, The Great South Carolina Ku Klux Klan Trials, 1871–1872 [Athens: University of Georgia Press, 1996], 100–12)Google Scholar.

33. The “fundamental rights” reading of Charles Fairman's “Does the Fourteenth Amendment Incorporate the Bill of Rights?” would not alter the analysis here. Miller's opinion would still need explaining, because he read the clause as adding no new rights to be protected from state abridgment—not even the First and Second Amendment rights that had been stressed in congressional debate on the amendment.

34. See fn.3 above.

35. Of course, at a more obvious level, and the one central to the case, they were also rejecting the dissenters' concern with entrenching as “fundamental rights” economic freedoms of property-holders against state regulation. This aspect of the decision presents no mystery. In an 1875 letter, Justice Miller expressed frustration with having to “contend with” fellow justices “who have been at the bar the advocates for forty years of railroad companies and all the forms of associated capital” in cases involving “such interests.” “All their training,” he lamented, “all their feelings are from the start in favor of those who need no such influence” (Fairman, Mr. Justice, 374).

36. The argument here is not concerned with deciding whether the Second Amendment right was a personal right to bear arms or a right to bear arms as a member of an organized citizen militia. In Bill of Rights, Amar argues that its meaning evolved from 1789 (militia right of states) to the Civil War period (when it was often discussed as an individual right of blacks for self-defense). In Freedmen, Halbrook insists strenuously on the individual rights reading, and he marshals much documentary evidence for it. See also Cornell, Well-Regulated Militia, where he argues that neither an individual rights nor a state militia picture of the Amendment captures the fullness of its public understanding in the period from the founding through Reconstruction. In fact, in this postbellum period, a good deal of the armed white violence against blacks was perpetrated by southern whites organized as nongovernmental militias and sometimes claiming a Second Amendment membership-in-the-militia right (see fn.43 below). Also, the arming of blacks in official state militias was so heatedly controversial that South Carolina's Republican governor caved to political pressure from whites and literally disarmed his state black militia. Foner, Reconstruction, 438-9; see also Williams, Great South Carolina Ku Klux Klan Trials, 23–27.

37. 26 F.Cas. 79, at 81. Scaturro, Frank, The Supreme Court's Retreat from Reconstruction (Westport, CT: Greenwood Press, 2000), 28Google Scholar; Williams, Great South Carolina Ku Klux Klan Trials, 131. Kaczorowski, Robert J., The Nationalization of Civil Rights; Constitutional Theory and Practice in a Racist Society 1866–1883 (New York: Garland Press, 1987), 210–52Google Scholar, quotation at 239 . Judge Woods joined the Supreme Court in 1881.

38. In the first of the cases, two questions were presented to the Supreme Court because of a division of opinion between the two judges in the court below, U.S. v. James W. Avery, 13 Wall. 251 (1872). They were (1) Could ordinary [state] crimes be federally punished under the 1870 Enforcement Act if they were committed in order to violate civil rights of former slaves; and (2) could a private conspiracy to deprive blacks of Second Amendment rights be federally punished under the Enforcement Act? Williams, Great South Carolina Ku Klux Klan Trials, 100–102, 107–12; and Halbrook, Freedmen, 144–45. See also fn.32 above.

39. In fact, because the Slaughterhouse arguments were heard twice—first in January 1872 and again in February 1873 (to accommodate the appointment of a new justice), the incorporationist argument at the heart of the Klan cases was presented concurrently with Slaughterhouse deliberations.

40. In one notable case, a mob of sixty Klansmen lynched a black militia member, riddled his body with bullets, and pinned a note to the corpse stating that “Jim Williams gone to his last muster.” Notably, the armed violence that led later to the Supreme Court Cruikshank decision, although the specific dispute was over electoral outcome, similarly involved a clash between a black militia and a Klan-type paramilitary organization (Cornell, Well-Regulated Militia, 179–86, 190–91).

41. This comparison has already been made in print by a historian, McPherson, James M., “The Great Betrayal,” New York Review of Books, 53 (2006): 47Google Scholar.

42. Williams, Great South Carolina Ku Klux Klan Trials, 123.

43. Foner, Reconstruction, 550–51. As part of their defense when arrested, these White Leaguers relied on their Second Amendment right to bear arms as the true citizen militia of Louisiana (Emberton, Carole, “The Limits of Incorporation: Violence, Gun Rights, and Gun Regulation in the Reconstruction South,” Stanford Law and Policy Review 17 [2006]: 615–34Google Scholar).

44. For the years 1868–1870, Eric Foner cites Tennessee, Arkansas, North Carolina, and Texas in this regard (Reconstruction, 439–41).

45. By 1873, Republicans had lost their firm control of all southern states except Arkansas, Louisiana, Mississippi, and South Carolina. In Alabama, Florida, North Carolina, and Texas they now shared power with the Democrats (Foner, Reconstruction, 539–53. See fn.79 below for electoral developments in 1874–1876).

46. Foner, Reconstruction, 528, 550, 552–53, 557–58.

47. 80 U.S. 581 (1872).

48. Goldstein, Robert D., “Blyew: Variations on a Jurisdictional Theme,” Stanford Law Review 41 (1989): 469–566CrossRefGoogle Scholar.

49. Ibid. at 563

50. Slaughterhouse, 83 U.S., at 70–71.

51. Strauder; Ex Parte Virginia; Neal v. Delaware.

52. 84 U.S. 445 (1873).

53. 84 U.S. 445, at 452–53.

54. 6 F. Cas. 546, (No. 3,230, Cir.Ct. E.D.Pa., 1823). Corfield was interpreting the phrase “privileges and immunities of citizens in the several states” from Art. IV, Sec. 2, cl.2.

55. 60 U.S. 393 (1857).

56. On the significance of the matter of access to federal courts in the historical context of Dred Scott, see Allen, Austin, The Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court 1837–1857 (Athens: University of Georgia Press, 2006)Google Scholar.

57. Wildenthal, “Lost Compromise,” 1108, sec. III-A.

58. Halbrook, Freedmen, 145–48.

59. Ibid., 148–52.

60. The Court claimed in Reese (92 U.S. 214 [1876]) that by neglecting to mention racial motivation or effect, these two sections (that criminalized interference with voting rights) fell out from under the Fifteenth Amendment's authorizing power to Congress.

61. Justice Clifford concurred here (also in Cruikshank), as to result because of lack of specificity in the indictment, but did not discuss constitutionality of the statute. The only dissent on constitutional issues came from Justice Ward Hunt.

62. U.S. v. Reese, 92 U.S. 214, 219.

63. U.S. v. Reese, 92 U.S., dissent at 238–56, comment at 243.

64. Congress then reprinted the Revised Statutes as a Second Edition in 1878. In this edition the original §2 of 1870 became in the Revised Statutes partly §2005 and partly §2006; Section 3 became partly §2007, partly §2008; Section 4 became partly §2006 and partly §5506; Section 5 became §5507. Section 5506 was adopted March 3, 1875 (a year prior to the Reese and Cruikshank decisions), as an amended version of §4 of the 1870 Act. The amendment omitted the “as aforesaid” language, as noted in the text. U.S. Statutes at Large, Revised Statutes of the United States, Second Edition (Volume 18, Part One) (Washington DC: Government Printing Office, 1878), 26:352–53; 70:1067. Secs. 5506 and 5507 remained part of the U.S. Code until they were repealed in 1894 (U.S. Code Service Tables (Charlottesville VA: Lexis-Nexis, 2004); Wang, Trial of Democracy, 253–59, 294–99.

65. Within four days of the Reese declaration of unconstitutionality, senators began discussing whether and how to revise Sections 3 and 4 of the 31 May 1870 Enforcement Act. The discussion arose in the context of a resolution by Sen. Morton (R–IN) and Sen. Christiancy (R–MI) to investigate the degree of “force, fraud, and intimidation” against black voters present in the Mississippi election of 1875, and to propose appropriate legislation for such problems. The resolution had been around since December, 1875, four months before Cruikshank and Reese were handed down, but now Sen. Bayard (D–DE) was arguing that the two Supreme Court decisions showed that “the letter and spirit” of the various Reconstruction enforcement acts were all unconstitutional, and therefore no new legislation could be adopted either. Republican senators contested his (extreme) claim that all the Fourteenth and Fifteen Amendments did was to forbid state legislation, and only courts could enforce the amendments by striking down such legislation (and, implicitly therefore, that Congress's only legislative role would be to lay out appropriate jurisdiction for such declarations.) Sen. Frelinghuysen (Whig–NJ) noted correctly that all Congress would have to do to render Sections 3 and 4 constitutional in the eyes of the Supreme Court was to add the six words, “on account of race or color.” The proposal for legislative initiatives to clarify the 1870 Enforcement Act went nowhere because the House of Representatives was now heavily Democrat. Cong. Record 44th Cong. 1st Sess., (Washington, DC: Government Printing Office, 1876), 4:2064–76, 2100–107, 2108–20, 5274–98. Frelinghuysen comment at ibid., 2112. In sum, the divided Congress's response to Reese and Cruikshank was neither to amend the sections to meet the Court's objections, nor to remove them from the statute books.

66. This is a point stressed in Benedict, “Preserving Federalism.” The three remaining lines of argument in Cruikshank, which appear at pages 92 U.S., 551–55 of the opinion, are tightly interwoven. Here they are disentangled.

67. Cruikshank, 92 U.S., 553.

68. Ibid., 552.

69. Ibid., 552.

70. Bradley's argument that state action was needed for a violation varied as to the right in question. When it came to a racially motivated private conspiracy for preventing a black person from leasing property, there Bradley insisted, “it cannot be doubted that this would be a case within the power of congress to remedy and redress.” U.S. v. Cruikshank, 25 F. Cas. 707, at 714. To this extent Bradley in 1874 was sticking with his 1871 advice to Judge Woods on the idea that state inaction might justify federal intervention against private wrongdoing. There is a Thirteenth Amendment logic for this position. The Thirteenth made blacks free persons, and the right to earn, buy and sell property is a fundamental right of free persons. Congress is authorized to enforce the Thirteenth Amendment. Bradley had put forth this Thirteenth Amendment rationale in his dissent (with Swayne) for the 1872 Blyew case. There, he had insisted that the Court should uphold a law that (per his interpretation) “provides a remedy where the State refuses to give one; where the mischief consists in inaction or refusal to act, or refusal to give requisite relief,” because under the Thirteenth Amendment, “The power to enforce the amendment by appropriate legislation must be a power to do away with the incidents and consequences of slavery, and to instate the freedmen in the full enjoyment of that civil liberty and equality which the abolition of slavery meant” (80 U.S. 581, 597, 601). Whether on Thirteenth or Fourteenth Amendment or Guaranty Clause grounds, the Court appears to agree with him as late as 1884. See text at n.94.

71. Cruikshank, 92 U.S., 553–55.

72. Cruikshank, 92 U.S., 552.

73. Cruikshank, 92 U.S., 555; emphasis added.

74. Cong. Record, 30 Mar. 1876, 4:2071–72; emphasis added.

75. Cruikshank, 92 U.S., 554.

76. See fn.70 above.

77. Cruikshank, 92 U.S., 554–55.

78. Cruikshank, 92 U.S., 554.

79. By 1873, Republicans had lost their firm control of all southern states save Arkansas, Louisiana, Mississippi, and South Carolina. Democrats took control of Tennessee, Georgia, and Virginia, while Alabama, Florida, North Carolina, and Texas had divided government. In the 1874 election following the 1873 depression, Democrats openly wielded the race card and reclaimed the Texas, Arkansas, Florida, and Alabama legislatures (Foner, Reconstruction, 539–53). At the national level, the landslide 1874 election had been devastating to the Republicans in Congress. Democrats went from holding one-third of the House seats to having a majority of 169–109 (McConnell, Michael “The Forgotten Constitutional Moment,” Constitutional Commentary 11[1994]: 125)Google Scholar.

80. Michael McConnell, ibid. 127–28.

81. Nieman, Donald G., Promises to Keep: African Americans and the Constitutional Order, 1776 to the Present (New York: Oxford University Press, 1991), 99Google Scholar.

82. Woodward, C. Vann, “Seeds of Failure in Radical Race Policy,” in New Frontiers of the American Reconstruction, ed. Hyman, Harold (Urbana: University of Illinois Press, 1966), 145–47Google Scholar.

83. Goldman, Robert, A Free Ballot and a Fair Count (New York: Fordham University Press, 2001), xxix, 23, 200Google Scholar. According to Charles Fairman, southern Democrats in the Senate were expressing “general unfriendliness to the federal judiciary” in January 1882 (Mr. Justice, 385). One can infer that, if the federal courts had been undermining Reconstruction in the 1870s, southern Democrats seemed not to have noticed it.

84. Story, Joseph, Commentaries on the Constitution of the United States, ed. Cooley, Thomas M., x vols., 4th ed. (Boston, 1873), 2:682–85Google Scholar, cited in Kaczorowski, Nationalization of Civil Rights, 290n.80.

85. Texas v. White, 7 U.S. 700, at 728–30 (1869) says the following:

In the exercise of the power conferred by the guaranty clause, as in the exercise of every other constitutional power, a discretion in the choice of means is necessarily allowed. It is essential only that the means must be necessary and proper for carrying into execution the power conferred, through the restoration of the State to its constitutional relations, under a republican form of government, and that no acts be done, and no authority exerted, which is either prohibited or unsanctioned by the Constitution.… [T]he power to carry into effect the clause of guaranty is primarily a legislative power, and resides in Congress.

86. Benedict, Michael Les, “Preserving the Constitution: The Conservative Basis of Radical Reconstruction,” Journal of American History 61 (1974): 65–90, 75CrossRefGoogle Scholar.

87. Lerche, Charles O., “Congressional Interpretations of the Guarantee of a Republican Form of Government during Reconstruction,” Journal of Southern History 15 (1949): 205–7Google Scholar. See also, Wiecek, William, The Guarantee Clause of the U.S. Constitution (Ithaca, NY: Cornell University Press, 1972)Google Scholar, chap.7, for description of congressional use of the Guaranty Clause well up until 1874 to justify its efforts to deal with electoral corruption with respect to decisions as to who received seats in Congress.

88. Cong. Globe, 42nd Cong., 1st Sess. App. 73.

89. Cong. Record, 4:5280–81.

90. Slaughterhouse, 83 U.S., at 76–77.

91. 110 U.S. 651.

92. Ex Parte Yarborough, 110 U.S., 666.

93. U.S. v. Harris, 106 U.S. 629 (1883).

94. Harris, 639; emphasis added.

95. Exceptions to the typical picture include Frantz, Benedict, Ross, and Brandwein, as noted above.

96. Robert Kaczorowski (in Politics of Judicial Interpretation) makes the case that decisions like Cruikshank were followed by a drastic reduction in federal enforcement efforts. They were. But the electoral politics of the nation were simultaneously turning against Reconstruction at both executive and legislative levels, so disentangling an independent impact from Supreme Court decisions is nigh impossible.

97. Bradley, Slaughterhouse, 83 U.S., dissenting at 111, listing Bill of Rights privileges at 118–19. For Woods, 26 F.Cas. 79 (1871). After he joined the Supreme Court in 1881, Woods wrote the opinion in which the Supreme Court (again) squarely rejected a Second Amendment incorporation argument in Presser v. Illinois, 116 U.S. 252, at 264–68 (1886).