Hall and Harris on The Story of U.S. v. Cruikshank

Hidden Histories, Racialized Gender, and the Legacy of Reconstruction: The Story of United States v. Cruikshank has been posted by Rebecca Hall, and Angela P. Harris, University of California, Berkeley. The essay is forthcoming in Women and the Law Stories (Elizabeth Schneider and Stephanie Wildman, eds.). Here's the abstract:

This chapter from the forthcoming book Women and the Law Stories, to be published by Foundation Press (Elizabeth Schneider and Stephanie Wildman, eds.), explores the story behind United States v. Cruikshank, 92 U.S. 542 (1875). In this decision the Supreme Court held, relying on its reasoning in The Slaughter-House Cases, that federal indictments against perpetrators of the racially-motivated Colfax Massacre of 1873 could not stand, because the indictments did not enumerate the specific rights of national citizenship that were violated when the victims were killed.

To the extent that this case is remembered at all, it is remembered as a race case. But this case marks the death knell of a human rights regime that, in recognizing the indissolubility of race and gender, the private and the public, and political, civil, and social rights, responded in a sophisticated way to the regime we call racialized gender. In the Reconstruction period (as in the present), racial identities were formed and maintained in part through ideas about gender and sexuality, and white racist violence frequently took the form of sexual violence, as in rapes and lynchings. Beginning with congressional testimony given by a black woman, Frances Thompson, about her rape by a white police officer during the 1866 Memphis Riots, we argue that understanding how post-Civil War white supremacy operated through ideologies of gender and sexuality can enrich our understanding of feminist history and constitutional law and theory.