U.S. v. Cruikshank: 1875

Defendants: William J. Cruikshank and others
Crimes Charged: 16 violations of federal law relating to the defendants' involvement in lynching two black men, including violating the victims' "right and privilege peaceably to assemble together."
Chief Defense Lawyers: E. John Ellis, David Dudley Field, Reverdy Johnson, R.H. Marr, Philip Phillips, and W.R. Whitaker
Chief Prosecutors: J.R. Beckwith, Edward Pierrepont, and Samuel F. Phillips
Judge: William B. Woods
Place: New Orleans, Louisiana
Date of Trial: 1874 April Term
Verdict: Guilty, overturned by U.S. Supreme Court
Sentence: None.

SIGNIFICANCE: The Supreme Court in Cruikshank severely limited the ability of the federal government to protect the civil rights of newly freed African-Americans. The federal government would not achieve the power to effectively protect civil rights until well into the 20th century.

In many ways, the Civil War began as a simple struggle between North and South over whether the Union would survive. Abolishing slavery became its primary purpose only after nearly two years of combat. President Abraham Lincoln was initially hesitant about freeing the slaves, and many leading Northerners, such as General George McClellan, were openly against abolition. After Lincoln finally decided to side with the abolitionists and issued the Emancipation Proclamation, however, the Civil War became almost a crusade against slavery for the people of the North. Renewed popular enthusiasm for the war, plus the addition of black regiments to Union forces, contributed to victory for the North in 1865.

African-Americans were finally freed, but their hold on liberty was precarious. The former slaves were uneducated, poor, and dependent on white landowners for their living. Many left the land for the industrial cities of the North, but most stayed home because they had no skills other than as agricultural laborers. During the early years of Reconstruction, the South was under military occupation and ex-slaves in the states of the former Confederacy were protected from their former masters. Further, it seemed as if the abolitionists had succeeded in obtaining permanent and meaningful legal recognition of African-Americans' civil rights through a series of amendments to the Constitution.

The Thirteenth Amendment, forbidding slavery, was ratified in 1865. The Fourteenth Amendment, providing for equal protection and due process under the law, was ratified in 1868. The Fifteenth Amendment, protecting the right to vote, was ratified in 1870. The Fourteenth Amendment is the most extensive of these three amendments, and based on it, Congress enacted legislation May 31, 1870 that made it a felony if two or more people conspired to deprive anyone of his federal civil rights.

Southern Racism Makes a Comeback

Despite the new legal protection for ex-slaves, as Southern states were readmitted to the Union and the occupation forces went home, the old ways returned in new guises. Landowners no longer owned slaves, but the practice of sharecropping effectively kept blacks tied to the land and subservient to whites. Southern states passed "Jim Crow" laws enforcing the separation of blacks from whites in public accommodations. What states couldn't do in public, Southern whites did in private. The Ku Klux Klan developed as an instrument of terror to enforce white supremacy. Hard-won black liberties began to slip away.

As Congress' act of 1870 demonstrated, however, the North would not give up without a fight. Three years later, matters came to a head. On April 13, 1873, a Southern mob in Grant Parish, Louisiana numbering nearly 100 people lynched two African-American men, Levi Nelson and Alexander Tillman. Apparently Nelson and Tillman had tried to vote in a local election against the wishes of white residents. Approximately 80 people in the lynch mob were indicted for violations of federal law and 17 were eventually brought to trial, including one William J. Cruikshank. The U.S. attorney in charge, J.R. Beckwith, charged each of them with 16 violations of the 1870 law. The most important charge was violating the victims' "right and privilege peaceably to assemble together."

Cruikshank and the others, however, were not charged with murder. Nelson and Tillman's murder was a Louisiana state offense, not a violation of the federal law, and the Louisiana authorities didn't prosecute. The defendants were brought to trial in New Orleans before a judge of the federal Circuit Court for the District of Louisiana, William B. Woods, E. John Ellis, R.H. Marr, and W.R. Whitaker represented the defendants at the trial, which took place during the Circuit Court's 1874 April Term.

Little is known about the actual trial, as the real action was yet to come. Cruikshank and the others were found guilty. The defense lawyers promptly appealed for a stay to Joseph P. Bradley, an associate justice of the U.S. Supreme Court. In that day and age, individual justices of the Supreme Court were charged with hearing appeals in various parts of the country before the appeals went to the full Court in Washington, D.C. The District of Louisiana had been assigned to Bradley.

Justice Bradley granted the defense's motion to stay the guilty verdicts, and Cruikshank's case was sent to the Supreme Court for a final decision. David Dudley Field, Reverdy Johnson, and Philip Phillips joined the defense team, while Attorney-General Edward Pierrepont and Solicitor-General Samuel F. Phillips personally assisted the prosecution as both sides prepared for their arguments before the Court.

At the Court's 1874 October Term, the prosecution argued that the 1870 act and the Fourteenth Amendment gave the government the power to try and convict offenders like Cruikshank. The defense argued that the Fourteenth Amendment gave the federal government authority to act only against state government violations of civil rights, but not against one citizen's violation of another's civil rights, like Cruikshank's violation of Nelson and Tillman's rights. The defense's argument, that Congress could legislate against only "state action," would have the effect of leaving the federal government powerless to prosecute lynch mobs and groups such as the KKK. African-Americans would be protected only by their state courts against white violence, which in the South, of course, meant no protection at all.

Supreme Court Delivers a Crushing Blow

After hearing both sides' arguments, the Court took a year to render its decision. Chief Justice Morrison R. Waite wrote the Court's ruling, issued in the 1875 October Term. Waite's opinion would stymie the federal government's ability to protect African-American civil rights for 90 years.

Waite began by reiterating the dual nature of American government:

We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. 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 governments will be different from those he has under the other.

Waite then stated that the 16 violations of the 1870 act charged against Cruikshank and the others were really simple state conspiracy charges. The federal prosecution was thus unconstitutional. Even the most important charge, violating the victims' "right and privilege peaceably to assemble together," was really a violation of state rights. If the victims had assembled to "petition for a redress of grievances," or some other right specifically granted by the Constitution, then perhaps a federal prosecution would be permissible. Waite refused, however, to give the federal government jurisdiction over any civil rights violation not specifically covered by the Constitution:

This [case] is nothing else than [an allegation of] a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana.… Sovereignty, for this purpose, rests alone with the State. 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.

Cruikshank and the others would thus go free. Through Waite, the Supreme Court had firmly endorsed the defendants' "state action" argument:

The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.

Because the Court had essentially told people to go to their state governments and courts for protection, African-American civil liberties underwent a long eclipse, particularly in the South, from which they would not recover until the 1960s. The Court had turned a blind eye to the fact that in the South, state governments were de facto supporters of "private" racism such as the Ku Klux Klan and the lynch mobs. For African-Americans, state protection was no protection at all.

In the 1960s, the federal government enacted new civil rights laws and moved aggressively to enforce them. This time, in dozens of cases the Court consistently upheld the constitutionality of federal measures. The Court's change in attitude was due to the political upheavals of the time and the new majority of liberal justices. Obstacles such as the "state action" requirement of the Fourteenth Amendment were substantially reduced. Further, the Court allowed the federal government broad civil rights enforcement powers under other sections of the Constitution as well, such as the federal authority to regulate any conduct that even remotely affects interstate commerce. Cases like Cruikshank, however, had prevented the federal government from protecting civil rights 90 years earlier.

—Stephen G. Christianson

Suggestions for Further Reading

Burns, James MacGregor. A People's Charter: the Pursuit of Rights in America. New York: Alfred A. Knopf, 1991.

Emerson, Thomas Irwin. Political andCivilRights in the United States: A Collection of Legal and Related Materials. Boston: Little, Brown & Co., 1967.

Foner, Eric. "The New View of Reconstruction." American Heritage (October 1983): 10-16.

Franklin, John Hope. "Mirror for Americans: a Century of Reconstruction History." The American Historical Review (February 1980): 1-14.

Neely, Mark E. The Fate of Libertv: Abraham Lincoln and Civil Liberties. New York: Oxford University Press, 1991.

Nieman, Donald G. Promises to Keep: African-Americans and the Constitutional Order, 1776 to the Present. New York: Oxford University Press, 1991.