Pope on U.S. v. Cruikshank

James Gray Pope, Rutgers Law School, Newark, has posted Snubbed Landmark: How United States v. Cruikshank Truncated the Reconstruction Amendments and Racialized Class Politics in America, which is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review.  Here is the abstract:

United States v. Cruikshank (1876) is an unacknowledged landmark of American constitutional jurisprudence. Cruikshank, not the far more famous Civil Rights Cases, limited the Fourteenth Amendment to protect only against state action; Cruikshank, not the notorious Slaughter-House Cases, narrowed the privileges or immunities clause of the Fourteenth Amendment to exclude rights enumerated in the Bill of Rights; Cruikshank, not the canonical Washington v. Davis, announced that the Fourteenth Amendment’s equal protection clause and the Fifteenth Amendment’s ban on racial exclusions from voting protected only against provably intentional race discrimination; and Cruikshank, not the Civil Rights Cases or City of Boerne v. Flores, first excepted the Fourteenth Amendment from the general principle that Congress enjoys discretion to select the means of implementing its constitutional powers. Historically, if the argument of this article holds true, Cruikshank played a crucial role in terminating Reconstruction and launching the one-party, segregationist regime of “Jim Crow” that prevailed in the South until the 1960s. The Circuit Court opinion of Justice Joseph Bradley unleashed the second and decisive phase of Reconstruction-era terrorism, while the ruling of the full Court ensured its successful culmination in the “redemption” of the black-majority states.

Despite its enormous jurisprudential and historical importance, however, Cruikshank has been omitted from the mainstream narrative and pedagogical canon of constitutional law. The results have been obfuscation and distortion. Unlike the Civil Rights Cases, Slaughter-House, Davis, and City of Boerne – from which students learn the principles actually announced in Cruikshank – Cruikshank lays bare the true origin of those principles in affirmative judicial intervention immunizing overtly racist terrorism against effective law enforcement. By contrast, Plessy v. Ferguson, the legal profession’s chosen focus for confession and atonement, merely let stand the legal product of a white supremacist state government that owed its existence to Cruikshank. With Cruikshank safely off-stage, American law students are treated to a happy tale of progress from Plessy to Brown starring the Supreme Court as the primary protector of civil rights – a role that, ironically, the Court carved out for itself by truncating Congress’s civil rights powers in C