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Souvce TIe SocioIogicaI QuavlevI, VoI. 40, No. 2 |Spving, 1999), pp. 327-345
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REPRESSION,
THE
JUDICIAL SYSTEM,
AND
POLITICAL OPPORTUNITIES FOR CIVIL RIGHTS
ADVOCACY DURING RECONSTRUCTION
Donna A. Barnes and Catherine
Connolly
University of Wyoming
Contemporary
research on the modern civil
rights
movement stresses the
importance
of
a triad
pattern
of civil rights
protest,
white violence, and federal intervention. We
explore
the role of the U.S.
Supreme
Court in
constraining
federal intervention in
response
to white
supremacist
violence
during
Reconstruction. We conclude that
Supreme
Court decisions
played
an
important
role in
defeating
the Reconstruction-era
civil
rights
movement
by minimizing
the
likely
benefits to be
gained
from civil
rights
advocacy.
Future
scholarship
should further examine the
impact
of federal court deci-
sions on the
political opportunity
structure
facing
social movements.
Sociologists
have devoted considerable efforts to
analyzing
the modern civil
rights
movement
(e.g.,
Barkan
1984;
Geschwender 1971: Haines 1984;
McAdam
1982: 1983;
McAdam and Paulsen
1993;
Meier and Rudwick 1973; Morris 1981; 1984).
They
have
given
little
attention, however,
to civil
rights activity
in the Reconstruction era, 1865-
1877. Shifts in
political opportunities occurring early
in this
period might
have
given
the
necessary leverage
to a nascent civil
rights
movement,
allowing
it to achieve at least some
success in its efforts to assure the full
participation
of blacks in the
political process.
Instead, unpunished
white
supremacist
intimidation and violence
against
blacks effec-
tively
undermined the civil
rights
movement of that era.
The
importance
of
"political opportunities"
for
protest
has been
emphasized
in research
on social movements
(Eisenger
1973:
Jenkins and Perrow
1977:
Kitschelt 1986; Kriesi
1993;
McAdam
1982;
Tarrow
1989:
Tilly, Tilly,
and
Tilly
1975).
Social movement theo-
rists contend that the
political system's openness
to
change
varies,
thereby affecting
the
chances for successful collective
protest.
Social movements are facilitated when there is
an
expansion
of
political opportunities resulting
from either serious
disruption
of the
polit-
ical status
quo
or from broad social
processes
that
strengthen
the
political position
of the
challenging group. Conversely,
social movements are hindered when there is a contraction
of
political opportunities
because of social forces that either weaken the
political position
of
challenging groups
or
strengthen
the
political position
of other
groups.
Central to discussions of the rise and decline of social movements is the issue of
repres-
sion and its
consequences.
Research has shown that there is no consistent
relationship
Direct all
correspondence
to Donna A. Barnes.
Department
of Sociology. University
of
Wyoming.
Box 3293.
Laramie, WY
82071-3293:
e-mail:
dbarnes@uwyo.edu
The
Sociological Quarterly,
Volume 40, Number 2,
pages
327-345.
Copyright
?
1999 by The Midwest Sociological Society.
All rights reserved. Send requests for permission to reprint to:
Rights and Permissions, University
of California Press, Journals
Division,
2120 Berkeley Way, Berkeley, CA 94720.
ISSN: 0038-0253
328 THE SOCIOLOGICAL
QUARTERLY
Vol. 40/No. 2/1999
between
repression
and social movement
growth.
Evidence indicates that
repression
can
have both
positive
and
negative
effects on social movements. Karl-Dieter
Opp
and Wolf-
gang
Roehl
(1990)
contend that
repression
is a "cost" that,
at least
initially,
deters
partici-
pation
in
protest
movements. In their research on the antinuclear movement in
Germany,
however,
they
find that the short-term
negative
effect of
repression
was neutralized and
even reversed. In her
study
of the Iranian
revolution,
Karen Rasler
(1996)
finds the same
pat-
tern.
In a similar
vein,
Doug
McAdam
(1982)
and Steven Barkan
(1984) argue
that the mod-
em civil
rights
movement in the United States benefited
significantly
from the violence of
white
supremacist opponents.
More
specifically,
the civil
rights
movement benefited from
the
presence
of a triad of
sequential
events: civil
rights protest,
white
violence,
and federal
intervention on behalf of civil
rights protesters.
The violent
attempts by
white
suprema-
cists to
repress
civil
rights
activism often
provoked
federal intervention on behalf of the
civil
rights protesters, thereby ironically enhancing
the latter's chances for success.'
In
contrast,
we find little evidence of a beneficial triad of
protest,
violence,
and
govern-
ment intervention
during
the Reconstruction era in the United States. In the absence of
federal
restraint,
the
repression
of civil
rights
activists
by
white
supremacists
was severe
and
pervasive,
and this
repression destroyed
the civil
rights
movement.
Given that
repression
can have varied effects on social movements,
social movement
analysts
need to
identify
the factors that mediate the effect of
repression
on social move-
ments.
Opp
and Roehl
(1990)
and Rasler
(1996) identify
two conditions that must exist in
order to counter the
negative
effects of
repression.
First,
the
repressive
acts must be
per-
ceived as
illegitimate.
This
perception
is most
likely
to exist when
repression
is
violent,
as
opposed
to
"legalistic,"
and when
repression
is directed
against protesters engaged
in non-
violent
protest
activities.
Second,
the attitudes of those within the
protesters'
social net-
work must remain
supportive
of the
strategies
and
goals
of the
protest
movement.
Opp
and Roehl's
(1990)
and Rasler's
(1996)
work
provides important insights
into the
paradox
of
why repression
is fatal to
protest
mobilization in some
cases,
but
provokes
fur-
ther
protest
action in other cases.
However,
further
explication
of the conditions that medi-
ate the effect of
repression
on social movements is needed. Both
Opp
and Roehl's and
Rasler's articles focus on the
mediating
role
played by
the
perceptions
and attitudes both
of
protest participants
and of
people
within their social networks. It is also
necessary,
we
argue,
to consider the structural context in which
repression
occurs. If the structural con-
text is conducive to unrestrained
repression, repression
is
likely
to be
severe,
pervasive,
and
persistent.
Under these conditions the
political opportunities
for
protest
shift in a
decidedly
unfavorable
direction,
and the social movement is
likely
to falter even
if
the
repression
is viewed as
illegitimate
and even
if
both the
protesters
and the individuals in
their social networks remain
sympathetic
to the
goals
of the
protest
movement.
We seek to demonstrate the
importance
of
considering
the structural context in which
repression
occurs
by examining
the
dynamic interplay among
the civil
rights
movement,
the white
supremacist countermovement,
and the federal
government during
the Recon-
struction era in the United States, 1866-1877.
While there are
many
factors that affected
social movement mobilization
during
this era, we focus on a
particular aspect
of the struc-
tural
context-namely,
the
judicial system.2
We
argue
that
key
court decisions
hampered
the
ability
of the federal
government
to
respond
to the violence of the white
supremacist
countermovement. These
rulings effectively
derailed the triad of civil
rights protest,
white
violence, and federal intervention that would later benefit the modern civil
rights
move-
Civil
Rights Advocacy During
Reconstruction 329
ment
and,
in
doing
so,
unfavorably
constrained the
political opportunities
for a civil
rights
movement
during
Reconstruction.
Analyses
of
legal
decisions have tended to be the
purview
of
lawyers
and
legal
scholars3
and have been
slighted by
social movement scholars. There have been
excep-
tions,
however. For
example,
Paul Burstein
(1991)
argued
that the bus
boycott
tactic of the
modem civil
rights
movement owed at least some of its success to the U.S.
Supreme
Court,
and Barkan
(1984)
flatly
states that the
Montgomery
bus
boycott campaign
would
have been defeated had not the
Supreme
Court intervened at a critical moment.
Similarly,
Joel Handler
(1978)
asserted that the success of the 1960s
voting rights campaign
depended
in
part
on successful court
litigation.
Moreover,
in their article on social movements
and
countermovements,
David
Meyer
and Suzanne
Staggenborg
(1996) recognized
the
importance
of court
rulings concerning
the
legality
of various
protest
tactics and the
penal-
ties
imposed
for
using illegal
tactics.
They argued
that the tactical
options
and choices of
movements and countermovements can be
significantly
influenced
by
court
rulings.
Generally speaking,
however,
social movement
analysts
have
given
scant attention to
the
judicial system.
This
neglect
is unfortunate
because,
as we will demonstrate,
the courts
can
play
an
important
role in
mediating
the
relationship among
social movements,
countermovements,
and the
government.
CIVIL RIGHTS ADVOCACY AND WHITE
VIOLENCE,
1866-1877
The
empirical
focus of this article is on the civil
rights
movement and countermovement
during Reconstruction, 1866-1877,
and the
judicial
decisions that mediated the federal
response.
In the
years immediately following
the end of the Civil War,
there was a
significant
and
potentially
favorable shift in the
political opportunities
for a civil
rights
movement. The Civil War and the
emancipation
of slaves were
extremely disruptive
to the
economic and
political
status
quo
in the South and the nation in
general.
When freedmen
were
granted
the
right
to vote in
1868,
this further undermined the
political
status
quo
and
seemingly
enhanced the
prospects
for a successful civil
rights
movement.
Countering
these favorable shifts in
political opportunity,
however,
was the
emergence
of a white
supremacist
countermovement that utilized violent tactics to
repress
civil
rights
activists.
This article focuses
primarily
on the
dynamics
of
protest
in Louisiana,
although
brief
discussion of
parallel developments
in other states is
provided.
Louisiana warrants
partic-
ular attention
because, first,
it is the state in which white violence led to the critical
Supreme
Court case of United States v. Cruikshank
(92
U.S. 542, 1876).
This case under-
cut the
ability
of the federal
government
to
respond
to the violence of the white
suprema-
cist countermovement. While the factors
precipitating
Cruikshank
were of a local
character,
the Cruikshank decision had national
consequences
for the civil
rights
move-
ment of that time.
Louisiana also warrants close attention because the
political opportunities
for a civil
rights
movement seemed
optimal
in this state.
First,
its "free
people
of color"
population
was
larger
than for
any
other state in the
Confederacy;
this
population
included
many
prosperous
and well-educated individuals who formed a
significant pool
of
potential
black
leaders (Sterkx 1972; Taylor 1980; Vincent 1976). Second, unlike most southern states, its
black
population
was in a
slight majority:
in 1870, there were 364,000 blacks and 362,000
whites. Blacks also constituted a numerical
majority
in over half of the state's
parishes
(USBC 1975). A third factor conducive to
prospects
for a civil
rights
movement was the
330 THE SOCIOLOGICAL
QUARTERLY
Vol. 40/No. 2/1999
presence
of a
large metropolis,
New
Orleans,
in which business rather than
agriculture
was
dominant. It would have been reasonable for civil
rights
advocates to
perceive
that busi-
ness leaders in New Orleans would
prefer
an
orderly government
in which blacks were
allowed to
participate
to the
uncertainty
that would
accompany attempts
to
repress
civil
rights
advocates
(Taylor 1980).
A final factor concerns
personal politics:
President
Ulysses
S.
Grant
(1868-1876)
had
personal
ties to
Louisiana:
his wife's sister lived in Louisiana and
her
husband,
James
Casey,
was an activist in the state
Republican party
who had U.S.
Senate
aspirations (Gillette 1979).
Since the electoral success of the
Republican party
in
Louisiana
depended heavily upon
the black
vote, any attempt
to bolster the
political aspi-
rations of his brother-in-law
necessarily
entailed
fostering
the
political rights
of blacks.
Given these favorable
conditions,
it is not
surprising
that a movement for black civil
rights emerged
in Louisiana
immediately
after the Civil War. In
January
1865,
a
group
of
blacks met and elected
delegates
to a state convention of the
Equal Rights League,
which
drew
primarily
from Orleans
parish
but included
delegates
from other
parishes
as well.
This
movement,
led
by
blacks such as the ex-slave Oscar
Dunn,
Dr.
Joseph
Roudanez
(one
of the
publishers
of the New Orleans
Tribune),
and P. B. S. Pinchback,
soon
merged
with
the
political organization
of the radical faction of the
Republican party
that had
adopted
an
explicit
and
supportive
stance on the issue of black
voting rights
(Tunnell 1984).
This fac-
tion
attempted
to enhance the mobilization of blacks
by forming
Union
Leagues through-
out the South for the
purpose
of
advancing
the
political
and economic status of the
newly
freed slaves.
By
1867,
there were over 120 Union
League
"'clubs"
in Louisiana alone
(Fitzgerald 1989;
White
1970).
The
spread
of Union
Leagues
was
optimized by utilizing
the
indigenous
structure of
black
communities,
particularly
black
churches,
which
experienced
an
explosive growth
during
the
early years
of Reconstruction. Whites viewed the
growth
of black churches
with concern and were unsuccessful in their efforts to
keep
blacks within white-dominated
churches. Blacks
departed
from white churches in droves and were
primarily
attracted to
denominations such as the
Baptists,
which were less
hierarchically organized
and
gave
large
amounts of control to the local
congregations.
During 1867-1868,
Radical
Republicans
and their black civil
rights
allies secured a
number of victories. Foremost
among
these victories were new federal
voting
mandates
that enfranchised the ex-slaves.
Thus,
when a constitutional convention was
finally
con-
vened in Louisiana in
1868,
the
position
of white
supremacists
had been weakened
because of the
voting strength
of the black
population.
The constitutional convention con-
vened with an
approximately equal
number of white and black delegates.
The New
Orleans
Tribune,
a black-owned
newspaper, urged
the black
delegates
to this convention and black
voters to use their new constitutional
suffrage rights
to advance their race: "We
compose
a
majority
in the
State,
and with the
help
of our Radical white friends, we
compose
a
majority
in the Convention. . . . The colored masses are the masters of the field.
Everything depends
upon
the colored vote"
(October 30,
1868.
quoted
in Warmoth 1930,
p.
52).
At the convention of the Louisiana
Republican party
in
1868,
a similar activist stance
existed
among
the black
delegates.
The black candidate for the
Republican gubernatorial
nomination,
F.
E. Dumas, narrowly
lost
by
a 45:43 vote. Oscar Dunn, a black civil
rights
activist, successfully
ran for lieutenant
governor.
Also
noteworthy
was a
party resolution,
which
passed,
that called for
"equal rights
for all men, irrespective
of race, color or
previ-
ous condition" (Warmoth 1930, p. 55).
Civil
Rights Advocacy During
Reconstruction 331
White
supremacy,
a
leading principle
of the Democratic
party,
was under attack.
By
the
election
campaign
of
1868,
a counterattack was
fully underway.
This election would
prove
to be a
major battleground
in the
struggle
over civil
rights
issues and
political power
in
Louisiana. In
September 1868,
Emerson
Bentley,
the editor of the St. Landry
Progress (a
Republican paper supportive
of the civil
rights
of
blacks),
was
attacked,
and his
printing
press
was
destroyed.
When a
large
multiracial
group
convened in town to
protest
on Bent-
ley's
behalf,
it was attacked
by
a
group
of white
supremacists; approximately
two hundred
Bentley supporters
were
wounded,
some of them
fatally.
Less than a month
later,
five
white
supremacists
in the town of Franklin murdered two local leaders in the
Republican
party
who had taken a
public
stand
supportive
of the
political rights
of blacks. New
Orleans also saw its share of violence: sixteen
Republicans
were killed there in the week
prior
to election
day (Warmoth 1930).
The
campaign
of terror
begun during
1868 was
widespread.
In
Arkansas,
there were
over two hundred
political
murders
during
this
campaign.
In
Georgia,
the death toll was
lower,
but
reported
incidents of
beatings
were
extremely high (McPherson 1982).
In Ala-
bama and
Mississippi,
violence
by
the Ku Klux Klan
(KKK)
or similar
organizations
was
openly justified by explicit
reference to the Union
(or
"Loyal") Leagues.
The Selma Times
urged
whites to form Klan-like
organizations
wherever Union
Leagues
were active; the
Mobile
Register provided
similar
encouragement, saying:
"The first
object
of these clubs
should be a
persevering
and
systematic
movement to break
up
the
'Loyal Leagues'"
(quoted
in
Fitzgerald
1989,
p. 216).
Similar attitudes and behavior
typified
whites in the
Carolinas where the lives of state and local
Republican
officials with links to the black
community
were threatened
(Rable 1984).
But nowhere was the white violence
surrounding
the 1868 election
campaign greater
than in Louisiana
(Tunnell 1989;
USHR
1869-1870).
In
response
to the
pervasive
vio-
lence,
the conservative Planters Banner
commented:
"Most of the
negroes
now show a
disposition
to vote the democratic
ticket,
and live on
friendly
terms with the white
people
of the
parish" (quoted
in Warmoth
1930,
p.
69).
The
power
of violence to defeat the forces
of reform is evident in the electoral statistics. St.
Landry parish,
which
gave
the
Republi-
can nominees for the state constitutional convention 2,200 votes in
April
1868,
did not
give
the
Republican
ticket a
single
vote in the November
1868
election.
Only
276 votes
were cast for the
Republican party
in the November elections in the entire
city
of New
Orleans,
despite
the fact that
21,000
voters in that
city
had
registered
as
Republicans
(War-
moth
1930).
The fraud and violence that marked the 1868 elections in Louisiana and at least some
other southern states did
not, however,
prevent
the
Republicans
from
winning
the
presi-
dency. Importantly,
blacks
supplied
the crucial votes that sent Grant to the White House.
Although
he won
by
a
majority
of
309,000 votes,
he
polled
a
minority
of the white
votes;
the
nearly
half a million votes cast
by
blacks ensured his election
(Bennett 1967).
No
stronger message
could have been sent
concerning
the
importance
of blacks
electorally
to
the
Republican party.
White violence peaked again during
the 1872
campaign. Though
this
period
was con-
tentious
throughout
the South, it was
especially pugnacious
in Louisiana, where the
Republican party split
into several factions but in the end fielded
only
one official
Republi-
can
party
ticket with William
Kellogg
as its
gubernatorial
nominee. Conservative
Republicans
bolted from the
Republican party
and
initially
formed a coalition with "Reform" Demo-
crats. This
group
then
forged
a coalition with the "Extremist" Democrats who nominated
332
THE SOCIOLOGICAL
QUARTERLY
Vol. 40/No. 2/1999
John
McEnery
as their
gubernatorial
candidate.
McEnery
was from Ouachita
parish,
which had a
reputation
as one of the most
violently oppressive parishes
in the state in
regard
to black civil
rights (Warmoth 1930).
The election
campaign
of 1872 in Louisiana was marked
by
intimidation and terror
against
those who did not stand
clearly
on the
platform
of white
supremacy
(Bennett 1967;
Tunnell
1984).
A
split
occurred in the
Returning
Board,
which was authorized
by
a law
passed
in 1869 to
disregard
the election returns of
any precinct,
ward,
or
parish
in which
political intimidation, violence,
or fraud had occurred. An electoral crisis was
precipitated
when rival
Returning
Boards
convened, with one
declaring Kellogg
and the
Republican
slate of candidates victorious and the other
declaring McEnery
and his Democratic slate as
victors.
Finally,
a federal
judge
declared
Kellogg
and most of the
Republican
slate of can-
didates as the
rightful
winners of
political
office
(Gillette 1979).
The Democrats, however,
continued to assert that
they
were the victors.
The conflict over the 1872 election results
spilled
into the rural
parishes,
as
many
local
offices were also contested. In
April 1873,
one of the most violent
episodes
in Reconstruc-
tion
history
occurred in
Colfax,
the
county
seat of Grant
parish,
over who were the
legiti-
mate local officeholders.
Kellogg
and
McEnery
had commissioned rival
appointments
for
the sheriff and
judge
of the
parish. Kellogg's appointees, supported by
a
large group
of
freedmen who were concerned that Democrats would
try
to seize local
power
and
repress
their civil
rights, occupied
the
parish
courthouse. On Easter
Sunday, angry
Democrats
gathered
in
Colfax,
armed with
rifles
and a small cannon. The
Kellogg
faction was ordered
out of the courthouse. Those
surrendering
at this
point
were
put
under armed
guard.
The
courthouse was set on fire and
fifty
to
seventy
more blacks surrendered under a
flag
of
truce. All those who surrendered were
eventually
killed. Those who refused to surrender
either died in the courthouse fire or were shot as
they
tried to
escape (Johnson 1930;
Tun-
nell
1984;
USHR
1874-1875).
A
governmental report
on the Colfax
killings
estimated that 105 blacks and three
whites were murdered
(Johnson 1930;
Tunnell
1989).
This death count
places
it as the
worst
single day
of violence
during
Reconstruction
(Tunnell 1984).
The U.S.
Attorney
General in New
Orleans,
James
Beckwith,
wrote that the massacre was
uniquely
"revolt-
ing
and horrible in the details of its
perpetration"
and
by
its sheer level of
"atrocity
and
barbarity" (quoted
in Kaczorowski
1985,
p. 176).
Rumors of "the Colfax
system"
of violence made it
very
hard to
get Republicans
to run
for or
stay
in office. The
Republican party's advocacy
of black
political rights
had made it a
target
for violent
suppression. Leading
Democrats
expressed
their determination "to force
the white leaders of the
Republican party
in with
us,
run them out of the
country,
or kill
them;
the
negroes
will
give
us no trouble without their white leaders"
(Tunnell 1989,
p. 138).
By May 1874,
Louisiana
newspapers
were
carrying
a call to action addressed to all
whites who wanted to redeem the state from the
"Africanizing tendency"
that beset it. The
call for the formation of a White
League
committed to white
supremacy
advised violence
"only
when it is forced
upon
us as it was at Colfax"
(Caucasian, May
23, 1874,
reprinted
from the
Opelousas Courier).
The White
League
was soon a
major
force with which black activists and their allies
had to contend. A White
League
mob forced the
resignation
of local
Republican
officials
in Natchitoches
parish
in
July 1874; one month later, the
Republican
sheriff of
adjacent
Red River
parish
worried because the local White
League
was "red hot and on the war
path" (Tunnell 1984, p. 197). He informed
key
federal officials that while blacks were
Civil
Rights Advocacy During
Reconstruction 333
more than
willing
to
put up
an armed
fight against
the White
League,
it was useless
with-
out
ample
ammunition and the
promise
that the federal
government
would send
backup
troops
when
necessary.
Otherwise,
they
were
simply courting
another Colfax massacre.
The increased
insurgency
of the white
supremacist
countermovement was
by
no means
restricted to Louisiana.
Throughout
the
South,
Republicans
and their allies in the black
community
were threatened with death unless
they
withdrew from
politics.
There was a
sufficient number of murders of white
Republicans
and black activists to lend a
high
level
of
credibility
to these threats. Black voters were also
increasingly
intimidated. Those who
cast their ballots for the
Republican party
faced economic threats,
as well as threats of
bodily
harm.
Consequently,
the
political
field was
increasingly
abandoned to the Demo-
cratic
party's
nominees. Where intimidation and violent tactics were unsuccessful in cow-
ering Republicans
candidates and their
supporters,
another tactic
reigned supreme:
electoral fraud.
The violence on the
part
of white
supremacists
and the
accompanying
electoral fraud
played
a
major
role in
bringing
about the
Compromise
of
1877,
which
brought
an end to
Reconstruction. As a
result,
the issue of civil and
political rights
for blacks
was,
to a
large
extent, denationalized,
with blacks left to the
mercy
of southern whites who were wedded
to the
principle
of white
supremacy.4
In
sum,
the triad of civil
rights protest,
white
violence,
and federal intervention that
would later
prove
to be beneficial to the modern civil
rights
movement was, by
and
large,
missing
from the
post-Civil
War era. To understand
why,
we now turn to an
exploration
of
the structural context in which the civil
rights
movement and the white
supremacist
coun-
termovement mobilized.
CIVIL
RIGHTS, CONGRESS,
AND THE FEDERAL COURTS
The federal
courts,
especially
the U.S.
Supreme
Court,
played
a crucial role in
mediating
the federal
response
to the
escalating
violence of southern white
supremacists.
To under-
stand the
importance
of the
Supreme Court,
it is relevant to review the actions of
Congress
during
Reconstruction
(Table 1).
The U.S.
Congress
had laid the
groundwork
for a
significant expansion
of federal
authority by enacting
three constitutional amendments and
several
important legislative
acts. The Thirteenth Amendment
(1865) formally
eradicated
slavery
and
granted Congress
the
power
to
pass legislation
deemed
necessary
for enforce-
ment
purposes.
This amendment was
regarded
as insufficient in the wake of the "Black
Codes"
passed by many
southern state
legislatures. Consequently, Congress passed
the
Civil
Rights
Act of
1866,
which declared that all
persons
born in the United States were
citizens and should share in
equal
benefits of the
laws,
such as those
rights relating
to
security
of
person
or
property
and
rights
to make and enforce contracts and to
purchase,
lease,
sell,
or hold
property.
District and circuit courts were
given jurisdiction
over cases
affecting
individuals who were unable to enforce the act
through
state courts,
and the
president
was
given
the
power
to commit U.S.
troops
if needed to enforce the act
(Commager
1963).
Concerns about the
constitutionality
of the Civil
Rights
Act of 1866 led
Congress
to
pass
the Fourteenth Amendment (1868) wherein the
rights
secured under the act were
given
a more solid constitutional
footing.
Federal
powers
were
expanded yet
further
by
the
Fifteenth Amendment (1870), which asserted that a citizen's
right
to vote "shall not be
denied or
abridged by
the United States or
by any
state on account of race, color, or
previ-
334 THE SOCIOLOGICAL
QUARTERLY
Vol. 40/No. 2/1999
TABLE 1. FEDERAL RECONSTRUCTION-ERA CIVIL RIGHTS MEASURES
Measure Year
Type Purpose
Thirteenth
1865 Constitutional
Formally
eradicated
slavery
and
gave Congress
Amendment amendment
powers
to enact enforcement
legislation
Civil
Rights
Act 1866 Federal statute Declared all
persons
should share in
equal
benefits;
passed
to combat Black
Codes,
which, for
example, prohibited newly
freed
slaves from
owning property
Fourteenth 1868 Constitutional Passed to
give
constitutional
authority
to the
Amendment amendment CRA
(1866);
declared that all citizens should
enjoy
the same
privileges
and immunities and
that no state could
deny
a
person equal
protection
or due
process
Fifteenth 1870 Constitutional Forbade discrimination in
voting, specifically
in
Amendment amendment relation to race or
"previous
condition
of servitude"
Enforcement Acts 1870/ Federal statutes Established
federal jurisdiction
and criminal
1871
penalties
for
interfering
with actual
voting
or
qualifying
to vote and with
any
constitutional
or
statutory rights
or
privileges
Ku Klux Klan Act 1871 Federal statute Established federal criminal
penalties
for
(aka antilynching
individuals
conspiring
to
deprive
a class of
act)
persons equal protection
of law;
president
could
employ
armed forces for enforcement
Civil
Rights
Act 1875 Federal statute Declared that all
public places including
inns,
public conveyances,
and theaters should be
open
to all,
regardless
of color; established
criminal
penalties,
fines, and
Supreme
Court
review
ous condition of servitude." The amendment also
granted Congress
enforcement
powers
through passage
of
appropriate legislation (Commager 1963).
With its new constitutional
authority, Congress
embarked on an extensive
legislative
program.
It added criminal
penalties
for
deprivation
of
rights
under the
law,
a move seen
as a vital
step
to increase
protection
of freedmen from
politically
motivated violence on
the
part
of southern Democrats
(Lawrence 1993).
It
passed
the Enforcement Act of
1870,
which made it a
felony
for two or more
persons
to
conspire together
to threaten or
injure
any
citizen with the intention of
preventing
him or her from
exercising
the
rights
and
priv-
ileges granted by
the Constitution or laws of the United States. Furthermore,
the Enforce-
ment Act federalized all crimes committed in violation of the act. In
1871,
Congress
enacted the "Ku Klux Klan"
Act,
which invoked criminal
penalties
for individuals
conspir-
ing
to
deprive
a class of
persons
of
equal protection
of the law. One
provision
of the act
stipulated
that
legal
cases
invoking
redress under the act would be
prosecuted
in district or
circuit
courts,
rather than state
courts; this was an
important provision
since southern state
courts had a
reputation
for
failing
to
protect
the civil
rights
of blacks. The act also
granted
the
president power
to
employ
the armed forces to enforce civil liberties
guaranteed
under
the
Constitution,
if states were unable or
unwilling
to ensure
equal protection
under the
Civil
Rights Advocacy During
Reconstruction 335
law
(Commager 1963). Finally, Congress passed
the Civil
Rights
Act of
1875,
which
required
inns,
public conveyances,
theaters,
and other
places
of
public
amusement to
admit all
people regardless
of race or color
(Commager
1963; Stone, Seidman, Sunstein,
and Tushnet
1986).
Thus,
Congress passed
some critical
legislation
that could have been of considerable
benefit to the movement
attempting
to establish civil
rights
for blacks. These
laws,
how-
ever,
were
quickly challenged.
The first test of the new federal
powers granted by
this
leg-
islation was the
Slaughterhouse
Cases
(83
U.S.
[16 Wallace] 36, 1873).
The
Slaughterhouse
Cases
seemingly
had little to do with the freedmen's civil
rights.
The cases concerned the
awarding by
the State of Louisiana of a
twenty-five year monopoly
to one
company
to
conduct all the
butchering
business in three
parishes.
Rival
slaughterhouses
sued,
claiming
that Louisiana had
deprived
them of their
right
to earn a
living-and
thus their
rights
as
guaranteed by
the Fourteenth Amendment
(Kluger
1977).
The
Supreme
Court ruled that
the Fourteenth Amendment was not meant to
expand
federal
powers
over the states.
Though
Americans had distinct
rights
as citizens of both the federal and state
govern-
ments,
the
privileges
and immunities of federal
citizenship
were
severely
limited to situa-
tions such as
protection
on the
high
seas
(Curtis 1986).
Other
rights granted by
the
Fourteenth Amendment were under the domain of state
governments.
Thus,
whether the case
concerning
the
licensing
of
slaughterhouses
in Louisiana had been
rightly
or
wrongly
decided
was,
according
to the
Supreme
Court,
up
to the courts in Louisiana to decide.
This
interpretation
of the Fourteenth Amendment-the
centerpiece
of
congressional
Reconstruction-boded ill for the civil
rights
movement in the South. It
signaled
that
redress of civil
rights
violations would
likely
fall to the state courts
(Curtis 1986;
Kluger
1977),
and these courts had
already
demonstrated their
unwillingness
to convict in such
cases.
The
legal
case
resulting
from the Colfax
massacre,
United States v. Cruikshank,
was the
first time the
Supreme
Court was called
upon
to rule in an
explicitly
civil
rights
case on the
constitutionality
of the Reconstruction laws that
Congress
had
passed
to
protect
the civil
liberties of the freedmen
(Commager 1963).
The
importance
of this case to the
prospects
for successful civil
rights advocacy during
Reconstruction cannot be overstated. It there-
fore warrants close attention.
The first trial
resulting
from the Colfax massacre took
place
in circuit court in
compli-
ance with the
federalizing
of crimes committed in violation of the Enforcement Act of
1870.
Although ninety-seven
men were indicted on
charges stemming
from the
massacre,
only
nine of the leaders stood accused of
thirty-two
violations of that act. The first sixteen
counts
charged conspiracy
to
deprive
black men of various constitutional
rights
such as the
right
of
assembly,
the
right
to
keep
and bear
arms,
the
right
to
protection against depriva-
tion of
life,
liberty,
and
property
without due
process
of
law,
and the
right
to vote. The
remaining
sixteen counts
charged
the defendants with murder committed while
pursuing
this
conspiracy (Kaczorowski 1985).
The trial commenced in
February
1874,
approximately
ten months after the
massacre;
it lasted three weeks, and 280 witnesses were examined. The
jury
deliberated for
approxi-
mately
six weeks. It
acquitted
one of the defendants but could reach no verdict in
regard
to
the other
eight.
These
eight
were retried in circuit court one month later. In this trial, the
jury acquitted
five more of the defendants and convicted the
remaining
three of
conspir-
acy-but
not of murder (Kaczorowski 1985).
336 THE SOCIOLOGICAL
QUARTERLY
Vol. 40/No. 2/1999
The defense was not satisfied. It
immediately
entered motions to overturn the
conspir-
acy
convictions. More
specifically,
the defense
argued
that the
rights
under the Enforce-
ment Act were under the exclusive
jurisdiction
of the
state,
not the
federal,
courts. The
presiding judge agreed
and voided the
jury's conspiracy
indictments
(Kaczorowski 1985).
Thus,
no convictions resulted from the Colfax
massacre,
and the Enforcement Act was
effectively gutted.
The
attorneys
for the federal
government appealed
this decision to the
Supreme
Court.
The federal
attorneys
abandoned efforts to convict the defendants with
infringing
on the
constitutional
right
of free
assembly
and the
right
to
keep
and bear arms.
They
also aban-
doned
attempts
to convict the defendants with
infringing
on the Fourteenth Amendment's
right
to due
process
and
equal protection,
because of the
Supreme
Court's decision in
Slaughterhouse.
The counts on which
they
then concentrated were the
charges
related to
conspiring
to
injure, oppress,
and intimidate with the intent to undermine the
voting rights
granted
to all citizens
by
the Fifteenth Amendment. The
Supreme
Court had not as
yet
interpreted
the
scope
of the
power
of the federal
government
to enforce
voting rights
(Kac-
zorowski
1985).
The defense
counsel, however,
did not waiver from its
challenge
to the
constitutionality
of the Enforcement Act of 1870. It
argued
that the reach of both the Fourteenth and Fif-
teenth Amendments was
severely
limited. More
specifically,
the defense counsel
argued
three
closely
related
points: (1)
federal
authority
was not
appropriately
activated
merely
by
a state's failure to
protect
citizens'
voting rights, (2)
federal civil
rights
enforcement
authority
could
only
be
triggered by,
and could
only
be directed
against, racially
discrimi-
natory
state
statutes,
and
(3)
the federal
government
could not
prosecute
either state
officers or
private
individuals who
infringed
on citizens' basic
rights;
such
prosecutions
were the
proper jurisdiction
of the state courts
(Kaczorowski 1985).
In a near unanimous
opinion,
the
Supreme
Court ruled that neither the Fourteenth nor
the Fifteenth Amendments conferred
upon
the federal
government
the constitutional author-
ity
to enforce
directly
the civil and
political rights
of citizens. Civil
rights
enforcement was
held to be the exclusive domain of the
states;
consequently,
civil
rights
violations had to be
tried in state courts.
By
the Court's
interpretation,
the Fourteenth Amendment did not autho-
rize federal intervention even when a state failed to
protect
its citizens'
constitutional
rights
from violation
by
other
private
individuals. The Court ruled that the Fourteenth
Amendment
only protected
citizens
against
encroachment
by
the states
upon
their consti-
tutional
rights;
it did not
apply
to the actions of
private
citizens. The Court also ruled that
the First Amendment's
right
to freedom of
assembly
was not a
right granted
to the
people
but rather a limitation on the national
government
that made it unconstitutional for Con-
gress
to
pass any
laws
interfering
with the
right
of
assembly.
For their
protection
of the
right
of
assembly,
individuals had to "look to the states"
(Lawrence 1993;
Kaczorowski
1985).
In
sum,
the
Supreme
Court
upheld
the lower court's decisions
regarding
both the
dismissal of all
charges against
the Colfax defendants and the
unconstitutionality
of
the Enforcement Act. Moreover, the Court sent
a
clear
message
that there would be little
federal
support
to offset the atrocities of the
burgeoning
white
supremacist
movement.
The Cruikshank decision was
certainly
not the
only
instance where the U.S.
Supreme
Court
rejected
federal
jurisdiction
in cases
brought
under the Thirteenth, Fourteenth, and
Fifteenth Amendments, as well as cases
involving
the civil
rights
and enforcement stat-
utes. The Court, in fact, rejected
federal
jurisdiction
over most civil
rights
claims (Table 2).
Civil
Rights Advocacy During
Reconstruction 337
TABLE 2. SUPREME COURT DISMANTLING OF RECONSTRUCTION-ERA CIVIL
RIGHTS MEASURES
Case Year
Impact
Blyew
v. United 1872 Declared that the Civil
Rights
Act of 1866 did not
grant
federal
States
jurisdiction
when the
complaining parties
were not
legally
(80
U.S.
581)
affected
by
the outcome
(Case
arose from a
Kentucky
murder
trial where the deceased's
grandchildren,
who were black,
witnessed the murder. The Court declared that there could be
no federal
jurisdiction
in the case, even
though Kentucky
would not allow the black witnesses to
testify against
the
white
defendants.)
Slaughterhouse
1873 Declared that the
privileges
and immunities clause of the
Cases
(83
U.S. Fourteenth Amendment was not meant to
expand
federal
[16 Wallace] 36) powers
over the states
(Arose
from the
granting
of a
monopoly
to one butcher
company
in
Louisiana)
Texas v. Gaines 1874 Declared that
alleged
racial
prejudice
was not sufficient reason to
(23
F. Cas.
869)
move a state trial to federal courts under CRA
(1866);
there
must be a
racially discriminatory
statute that would
give
rise
to a
racially discriminatory
trial
Minor v.
Happersett
1875 Declared that the Fifteenth Amendment did not confer a
general
(88
U.S.
162) right
to
vote;
the
right
to vote was not
among
the
privileges
and immunities of U.S.
citizenship,
hence states could
regulate voting
(Arose
from
Virginia
women's
suffrage
case)
United States v. 1876 Declared
portions
of the Enforcement Act of
1870
Cruikshank unconstitutional
by stating
that the Fourteenth and Fifteenth
(92
U.S.
542)
Amendments were
severely
limited in
scope. Any
prosecutions
should take
place
in state courts
United States 1876 Declared that the Fifteenth Amendment did not allow
Congress
v. Reese to redress interferences with a citizen's
qualifying
to vote
(92
U.S.
214)
unless there is
explicit showing
of the state's racial
animus;
thus,
portions
of the Enforcement Act of
1870
were
unconstitutional
Civil
Rights
Cases 1883 Five cases that
together
declared
portions
of the Civil
Rights
(109
U.S.
3)
Act of 1875 unconstitutional. The Thirteenth and Fourteenth
Amendments did not
grant
federal
jurisdiction;
state courts
were the
proper
forum for accommodation
disputes
United States 1883 Both declared unconstitutional
portions
of the KKK Act,
which
v. Harris
(106
criminalized
conspiracy
to interfere with
government
U.S.
629)
functions and
provided
for
liability
for
private
interference
Baldwin v. Frank 1887 with individual's exercise of federal civil
rights
(Determination
(120
U.S.
678)
relied,
in
part,
on
reasonings
of Cruikshank and Reese)
Plessy
v.
Ferguson
1896 Declared that
separate compartments
for blacks on
passenger
(163
U.S.
537)
trains were not a violation of the
equal protection
clause of the
Fourteenth Amendment
James v. Bowman 1903 Declared unconstitutional the
portion
of the Enforcement Act of
(190
U.S.
127)
1870 that criminalized
private
interference with actual
voting
in a case
arising
from
Kentucky
Hodges
v. United 1906 Declared unconstitutional a
portion
of the Enforcement Act of
States
(203
U.S.
1)
1870 that
attempted
to reestablish a
portion
of the CRA
of
1866, stating
that all
citizens could
enjoy equal
benefits
of the laws; case also
alleged
violations of Thirteenth
Amendment and KKK Act; Court ruled that none gave rise
to federal court
jurisdiction
338 THE SOCIOLOGICAL
QUARTERLY
Vol. 40/No. 2/1999
Importantly,
the
judicial
cases
highlighted
in Table 2 had the effect of
nullifying
the con-
gressional
enactments described in Table 1.
A
particularly heavy
blow to
congressional
civil
rights legislation,
for
example,
occurred with the Court's decision in United States v. Reese
(92
U.S. 214, 1876).
This case
was
brought
on behalf of a black man who
unsuccessfully
tried to
register
to vote in Lex-
ington, Kentucky.
When he offered
payment
of the
compulsory poll
tax,
he was refused.
He was
again
refused on election
day
and turned to federal authorities for redress. The fed-
eral authorities arrested and
subsequently
indicted the local white election officials. The
Supreme
Court then
ruled, however,
that the Fifteenth Amendment
merely prevented
the
federal
government
or
any
state from
denying
citizens the
right
to vote on the account of
race, color,
or
previous
condition of servitude. In the
opinion
of the
Court,
the Fifteenth
Amendment did not allow
Congress
to redress
any
and all interferences with a citizen's
right
to vote.
Thus,
anyone claiming
redress under the Fifteenth Amendment had the bur-
den of
proving
that the
voting right's infringement
was
specifically
because of
race, color,
or
previous
condition of servitude. That there was no other reasonable
explanation
for the
denial of
voting rights
in the Reese case was not a factor the Court felt
proper
to
consider;
the
plaintiff
had to
prove
that a
voting rights
violation was the result of racial discrimina-
tion
(Kluger 1977).
Another
important ruling
came in
1883 when,
in a near unanimous decision, the
Supreme
Court declared the Civil
Rights
Act of
1875
unconstitutional. This
ruling (Civil
Rights
Cases 109 U.S.
3, 1883)
was the result of five
cases,
appealed
from different dis-
trict
courts,
all
challenging
the
constitutionality
of the Civil
Rights
Act of 1875. In each
case,
a black
person
had been denied some accommodation or
privilege
on account of
color. The
opinion
of the Court was that neither the Thirteenth nor Fourteenth Amend-
ments
granted
the federal
government jurisdiction
over these
matters;
again,
state courts
were
regarded
as
having proper jurisdiction.
This
ruling practically put
an end to the fed-
eral
government's attempt
to enforce the
guarantees
of the Fourteenth Amendment. Omi-
nous words can be found in the
majority
court
opinion
on this case:
When a man has
emerged
from
slavery,
and
by
the aid of beneficent
legislation
has
shaken off the
inseparable
concomitants of that state, there must be some
stage
in the
progress
of his elevation when he takes the rank of a mere citizen,
and ceases to be the
special
favorite of the laws, and when his
rights
as a citizen, or a man,
are to be
pro-
tected in the
ordinary
modes
by
which other men's
rights
are
protected. (quoted
in
Commager
1963,
p. 538)
In resonance with antiaffirmative action rhetoric of the
1990s--only
a hundred
years
ear-
lier,
the
judgment
of the
Supreme
Court
justices
was that sufficient time had
passed
for the
freedmen to
stop asking
for
"special"
treatment.
Over the next
decades,
the Court continued to "eviscerate civil
rights
crimes
provi-
sions"
(Lawrence 1993,
p. 2164).
The result was that the federal
government
had
jurisdic-
tion of only a small band of official crimes
against
blacks and civil
rights advocates, such
as when a state statute interfered with
voting by
blacks (Lawrence 1993) or excluded
blacks from
juries (Dickerson 1947). If there was no evidence of an
explicitly
discrimina-
tory
state statute, the Court found no merit in cases
asking
for federal intervention. The
Court, for
example,
found no federal
jurisdiction
in civil
rights complaints arising from
segregated
accommodations or schools, "private"
mob violence or
lynching,
the refusal of
Civil
Rights Advocacy During
Reconstruction 339
state officials to honor the estate
planning
of
blacks,
or
disparate sentencing
on race
(Dick-
erson
1947,
p. 15-34). Instead,
the Court
typically
found the federal statute under which
the claim was
brought
to be unconstitutional. The claim was then dismissed or returned to
the state courts where the civil
rights
of blacks were
rarely protected.
Judicial civil
rights
rulings
in southern courts
clearly
reveal that
"[a] pattern
of racial discrimination was
pos-
sible within the
scope
of the law and became a
pattern
of American
thinking
both
politi-
cally
and
socially" (Dickerson 1947, p.
17).
THE COURTS AND SOCIAL MOVEMENTS
The
Supreme
Court's "states'
rights"
stance
during
Reconstruction had a
major impact
on
the
viability
of a civil
rights
movement. Judicial decisions such as Cruikshank
consigned
almost all trials
involving
white violence and civil and
voting rights
violations to state
courts. Such trials had to be initiated at the local level
through
the sheriff's office. The
repercussions
of this are clear when one
points
out, for
example,
that the Democratic con-
tender for sheriff of Grant
parish
at the time of the Colfax massacre took
part
in the kill-
ings.
As Earl B. Dickerson
(1947, p. 26),
an NAACP
legal
scholar,
put
it:
to tell a
Negro
who has suffered from mob violence because of state inaction that he
must look to the state for
protection
sounds
very
much like
telling
a woman who has
been seduced that her future
protection
lies in the hands of her seducer! Such,
in sub-
stance,
has been the realism of
Supreme
Court decisions
defining
the
rights
of Ameri-
can
Negroes.
Justice to the
Negro
has
really
been sacrificed to the
political theory
of
states'
rights.
With the federal
government's ability
to
respond
to white violence
severely
constrained
by major
court
decisions,
and with no effective redress
through
the
judicial system
for
civil
rights
advocates who were victims of intimidation or violence,
civil
rights advocacy
in the South was
seriously
undermined.
Why
did the
Supreme
Court
adopt
a "states'
rights" perspective
that had the obvious
consequence
of
derailing
the Reconstruction-era civil
rights
movement? Scholars have
advanced several
explanations.
First,
the
Supreme
Court's civil
rights rulings
were consis-
tent with other
rulings
and with the Court's
prevailing philosophy during
the
period;
the
prevailing judicial
sentiment of the times was that individuals need to be
protected
consti-
tutionally
from intrusion
by
the federal
government.
The
rulings
reflected an interest in
correcting
the centralization of
power
that had occurred
during
the Civil War and Recon-
struction. The
Supreme
Court
may
have been concerned that a
recognition
of federal
authority
over civil
rights
matters would
destroy
the balance of
power
between the central
government
and the states
(Kaczorowski 1985;
Kluger 1977).5
This
prevailing judicial philosophy
was not
simply
the
consequence
of
appointment
of
justices
who were hostile to civil
rights.
Seven of the nine
Supreme
Court
justices
were
Republicans
who had been
appointed by
either Lincoln or Grant; none of the
justices
were southerners.6 The Court's dominant
figure
at this time was Samuel Miller, who had
been nominated to the Court
by
Abraham Lincoln in
1862.
Miller was an authentic
grass-
roots liberal and a dedicated abolitionist; at the time of his
appointment,
blacks could
hardly
have
hoped
for a more
sympathetic justice.
But it was Miller who wrote the
opinion
in the
Slaughterhouse case, which undercut the Fourteenth Amendment. Miller
brought
to
340 THE SOCIOLOGICAL
QUARTERLY
Vol. 40/No. 2/1999
the Court an obsession with individualism and a dedication to
maintaining
an
equilibrium
between the
powers
of the states and the national
government (Kluger
1977).
The ascen-
sion of Morrison Waite to Chief Justice of the
Supreme
Court in 1874 was another harbin-
ger
of trouble for civil
rights advocacy
in the South. Waite was a
strong
believer in states'
rights
and an ardent advocate for
reining
in the federal
powers
that had
expanded during
the war and Reconstruction
(Kaczorowski 1985;
Kluger
1977).
Second,
some scholars believe that the Court's civil
rights rulings may
have reflected
the
burgeoning
case loads and
backlogged
dockets of the late nineteenth
century
courts
(Kaczorowski 1985).
The
justices
needed to scale back the
expanding scope
of federal
jurisdiction.
The docket of the
Supreme
Court was two
years
in arrears. American
society
was rife with social
tensions,
including
not
only
civil
rights
violations but also demands
for labor
rights
and economic
protests against
the trusts. An
expansion
of federal
authority
to address these tensions and demands threatened to overwhelm the federal
judiciary.
Third,
political
concerns
likely played
a role in the conservative civil
rights rulings
of
the
Supreme
Court. Civil
rights
in the federal courts
exposed
and intensified the
political
aspects
of the
judicial process.
Democratic conservatives railed
against
the
partisanship
of
the federal
courts,
claiming they
were
merely
the
political appendages
of
Republican-
controlled
Congresses. Shifting
civil
rights
enforcement to the state courts
depoliticized
the
judicial process
in the federal
courts,
thereby granting
those courts more
legitimacy
(Kaczorowski 1985).
Unfortunately,
social movement theorists have
given inadequate
attention to the
impact
of the
legal system
on social movements. Previous research on the effects of law and social
movements has focused
heavily
on the use of the southern
legal system
to thwart the mod-
ern civil
rights movement,
with the
general
conclusion that the
legal machinery
of the
South became a tool for social control of civil
rights protest
(Barkan 1984;
Bell
1973;
Friedman
1965;
Killian
1968; Peltason
1961;
Vander Zanden
1961).
Some social move-
ment
analysts
have
argued
that this
legal
control
may
well have defeated the modern civil
rights
movement
except
for federal intervention on behalf of civil
rights protesters,
which
often followed
episodes
of extensive white violence
(Barkan 1984;
McAdam
1982).
What is
missing
from
existing
literature is the
recognition
that the crucial element of
federal intervention occurred in a
judicial
climate
that,
at the federal
level,
was
hospitable
to the notion of such intervention. As indicated in Table
3,
the
Supreme
Court
began
in the
1930's to rescind its
prior tendency
to
assign
civil
rights
matters to the exclusive control of
the states. These
changes played
an
important part
in
expanding
the
political opportunities
facing
the modern civil
rights
movement
(Miller
1966).7
In
contrast,
during
Reconstruction federal courts
played
a
major
role in
undermining
the
legal legitimacy
of federal intervention. The
consequences
of this
early
states' rights
judicial philosophy may
be best understood
by discussing
its relevance to the effect of
repression
on the
political opportunity
structure. While
past
research has focused on the
microlevel factors
mediating
the effects of
repression
on social movements
(Opp
and
Roehl
1990;
Rasler
1996),
the
experience
of the civil
rights
movement
during
Reconstruc-
tion
highlights the
importance of
considering
the structural context
in
which
repression
occurs. If the structural context is conducive to unrestrained
repression,
such
repression of
social movements can be severe, pervasive,
and
persistent.
Under these conditions, the
political opportunities
for
protest
are
severely
constricted.
In
regard
to the
post-Civil
War era, the states'
rights philosophy
of the federal courts
played
a
major
role in
creating
the conditions under which
repression
of the civil
rights
Civil
Rights Advocacy During
Reconstruction 341
TABLE 3. SUPREME COURT REVITALIZATION OF THE CONSTITUTIONAL
BASIS FOR FEDERAL AUTHORITY IN CIVIL RIGHTS CASES
Case Year
Impact
The "Scottsboro" cases: 1932-1935 Declared that black defendants were denied due
Powell v. Alabama
(287
process
of law as
required by
Fourteenth
U.S.
45);
Norris v. Alabama
Amendment,
were not
given
time to
prepare
(294
U.S.
587)
and Patterson
adequate
defense and were tried
by juries
that
v. Alabama
(294
U.S.
600)
excluded blacks
Brown v.
Mississippi
1936 Declared that black defendants were denied due
(297
U.S.
278)
process
of law under the Fourteenth
Amendment, a murder confession had been
obtained
only
after severe
beatings
and
threatened lynching
Smith v.
Allwright
1944 Declared unconstitutional under the Fifteenth
(321
U.S.
649)
Amendment
political parties' practice
of
using
white
primaries
for
party
nominations
Davis v. Schnell 1949 Declared unconstitutional under the Fifteenth
(336
U.S.
1933)
Amendment an Alabama law that
only
permitted
the voter registration of citizens
who could
explain any
article of the federal
constitution to the satisfaction of local registrars
Brown v. Board
of
1954 Overturned Plessy
v.
Ferguson;
declared that the
Education
of Topeka equal protection
clause of the Fourteenth
(347
U.S.
483) (combined
Amendment
prohibits
states from
imposing
4
cases
involving
schools
segregation
within
public
school districts
in
Kansas,
South
Carolina,
Virginia,
and
Delaware)
United States v. Raines 1959, 1960, Upheld
the
constitutionality
of the 1957 Civil
(362
U.S.
17);
Hannah v. and 1965
Rights
Act
against
various
challenges;
declared
Larche
(363
U.S.
602);
that the federal
authority
invoked was
granted by
Louisiana v. United States the Fifteenth Amendment
(380
U.S.
145)
and United
States v.
Mississippi
(380
U.S.
128)
movement flourished. White
supremacists
who
vehemently opposed
civil
rights
for blacks
could not have found a more favorable
legal
climate for the violent
repression
of the civil
rights
movement of that era. The
Supreme
Court's states'
rights rulings
minimized the
probability
and
severity
of
punishment
for the use of violence
against
civil
rights
advo-
cates. Violence could
generally
be used with
impunity against
civil
rights
activists who
sought
reform-either at the
local, state,
or national levels or
through
direct
action,
legisla-
tive
reform,
or
judicial strategies. Consequently,
the cost of
participating
in the civil
rights
movement was
maximized-participants
faced a
high probability
of intimidation,
injury,
or death.
Furthermore,
since the
Supreme
Court decisions left
many
of the civil
rights
issues
up
to the southern
states,
which had
already
shown their
hostility
or indifference,
the
likely
benefit from civil
rights advocacy
was minimal.
Few,
if
any,
social movements
would be
capable
of
surviving
under such hostile conditions.
342
THE SOCIOLOGICAL
QUARTERLY
Vol. 40/No. 2/1999
CONCLUSIONS
This article stresses the role of the
legal machinery
of the state in
mediating
the effect of
repression
on social movements. Protesters and their
opponents
choose tactics,
but the
consequences
of those tactics can be
highly dependent
on the action or inaction of the
gov-
ernment.
Scholars of the modern civil
rights
movement have stressed the
importance
of
federal intervention to the successes of that movement (Barkan 1984;
McAdam
1982).
In
contrast,
the federal
government's response
to the violence of white
supremacists during
Reconstruction was
grossly inadequate,
and the weakness of its
response
allowed a white
supremacist
movement to flourish.
We
argue
that the federal courts
played
a crucial role in
mediating
the federal
govern-
ment's
response
to white
supremacist
violence and to civil
rights
violations in
general.
While
Congress
laid the
legislative groundwork
for a
significant expansion
of federal
authority
that was essential to the effective
implementation
of civil
rights
laws in the South
during
the era of
Reconstruction, federal court decisions
subsequently
declared those laws
unconstitutional. These court decisions
strengthened
the
legal
foundations of the states'
rights perspective.
The
message
of these court decisions was understood
clearly by
south-
ern
white
supremacists-federal
intervention in civil
rights
violation and white violence
cases was
very unlikely,
since the
Supreme
Court had ruled that neither the Fourteenth and
Fifteenth Amendments nor
complementary
federal statutes conferred
upon Congress
the
authority
to enforce
directly
the civil and
political rights
of citizens when those
rights
were
violated
by
other individuals.
Any
trials
concerning
white violence
against
civil
right
activists or civil
rights
violations in
general
would
likely
end
up
in state courts where such
crimes were
rarely punished.
The
impact
of court decisions on the
political opportunities
for successful
protest
is
potentially
relevant to the
dynamics
of all social movements and warrants more attention
by sociologists.
Court
decisions,
particularly
those of the
Supreme
Court,
which cannot be
appealed,
can affect the
capacity
of the federal
government
to
respond
to the tactics of
social movements and their
opponents. Consequently,
future research on the
relationships
among
the
state,
social
movements,
and countermovements needs to
give greater
attention
to the
ways
in which federal court decisions
shape
the tactical choices of social move-
ments and their
opponents,
as well as the
government's response
to those tactics.
NOTES
1. For a critical review of McAdam's and Barkan's
interpretations,
see Morris (1993).
2. Some of the other factors
affecting
social movement formation were
changes
in
public opin-
ion,
particularly
northern
opinion,
in
regard
to civil
rights
issues and the
proper
role of the federal
government
in
enforcing
civil
rights
laws; the role of the media in
shaping public
attitudes on race
and civil
rights
issues;
the attitudes of the national economic elite in
regard
to civil
rights
issues and
their effect on federal
policy;
the
inability
of the
Republican party
to form a broad-based coalition
between lower-class blacks and whites in the
South,
which would have
strengthened
the
party
and
increased its chances of
effectively supporting
a civil
rights movement; and the role of black eco-
nomic
vulnerability
created
by
the
system
of farm
tenancy
and
crop-lien financing.
3.
Legal scholars, especially proponents
of critical race
theory,
have delivered
strong critiques of
the use of the law, and in
particular
the courts, to
promote
racial
equality.
Critical race theory
is an
activist-oriented
understanding
of the law and social
change
that
began
in the
1970s
with the work of
scholars such as Derrick Bell, former Harvard Law School dean. Bell (1995) argues
that traditional
Civil
Rights Advocacy During
Reconstruction 343
civil
rights
law with its
emphasis
on
equality
and liberalism has
ignored
a
long-standing history
of
discrimination that has been
perpetuated by
the courts since the Civil War.
Similarly,
Girardeau
Spann (1995) argues
that the
Supreme
Court serves the
"'veiled majoritarian
function of
promoting
popular preferences
at the
expense
of
minority
interests." In
general,
critical race
scholarship critiques
the liberal notions of formal
equality
and faith in the
legal system through
the use of
explicit examples
of racism. This
scholarship,
however, has
emphasized
the twentieth
century, specifically
the
contempo-
rary period following
the
Supreme
Court's
ruling
in Brown
v.
Board
of
Education
(374
U.S. 483, 1954).
Our work will add to this literature
by developing
an
analysis
of the Reconstruction Era.
4. For a
general
discussion of the
important
role of white violence in
undermining
Reconstruc-
tion and the civil
rights
movement of the nineteenth
century,
see Du Bois's "Back to
Slavery" chap-
ter in his Black Reconstruction in America
(1935);
see also Franklin (1961),
Perman
(1984),
and
Rable
(1984).
5.
Interestingly,
the Court was much more
willing
to
expand
federal
powers
over the states when
the
property rights
of new
corporations
were at stake.
According
to Kaczorowski (1985,
p. 221),
the
Court was
impeded by
its
logic
and conservatism from
sanctioning
the
radically
new
congressional
applications
of civil
rights legislation
in cases such as Cruikshank and Reese. In those cases, the
states had
previously
exercised
control; thus, the Court reasoned, issues
regarding
the civil
rights
of
blacks should remain the domain of state courts. In contrast, interstate commerce was
relatively
new,
and the Court chose to invoke federal
authority
over the states in this arena. The Court
expressed
the
fear that
recognition
of
congressional authority
over civil
rights
as well as
corporations
and interstate
commerce would
destroy
state
authority
and
change
the nature of U.S. federalism too
dramatically.
6. For
example,
the
Supreme
Court Justices who decided Cruikshank were Justice Nathan Clif-
ford
(of Maine, Democrat,
appointed by Buchanan):
Justice Noah Swane
(of Ohio, Republican,
appointed by Lincoln);
Justice Samuel Miller
(of Iowa, Republican, appointed by
Lincoln);
Justice
David Davis
(of Illinois,
Republican, appointed by
Lincoln);
Justice
Stephen
Field (from California,
Democrat,
appointed by Lincoln);
Justice William
Strong
(of
Pennsylvania, Republican, appointed
by Grant);
Justice
Joseph Bradley (of
New
Jersey, Republican, appointed by
Grant);
Justice Ward
Hunt
(of
New
York,
Republican, appointed by Grant);
Justice Morrison Waite (of Ohio,
Republican,
appointed by Grant).
From Abraham and
Perry (1988).
7. For
example,
in
regard
to
voting rights,
the success of the modern civil
rights
movement in
increasing
black voter
participation
was
dependent
to a considerable
degree
on a
judicial
climate that
allowed the federal
government
to intervene in
ways
that were at times "draconian,
at least
by
Amer-
ican traditions"
(Handler 1978,
p. 128).
The
discretionary authority
of local
registrars
was such that
they
could
easily
find
ways
to obstruct the
voting rights
of minorities.
Litigation
to enforce
voting
rights
was slow and
tortuous,
with a
voting rights
case often
taking eighteen
months for a decision
and an additional
year
for an
appeal. Consequently,
the
passage
of the
Voting Rights
Act of
1965,
which eliminated the
discretionary authority
of local
registrars by replacing
them with federal
regis-
trars,
was of vital
importance
to the civil
rights
movement and its
attempt
to obtain
voting rights
for
blacks.
Equally
vital was the fact that the
Supreme
Court did not rule this act unconstitutional.
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