By Xan White, Research & Special Projects Associate, Constitutional Accountability Center

Virginia’s Governor Bob McDonnell recently declared April Confederate History Month without condemning—or even acknowledging—the institution of slavery, until an immediate national outcry led him to apologize for initially deeming slavery not “significant” enough to warrant mention. To help provide some useful context, we note that today is the 137th anniversary of the Colfax Massacre, a tragic and bloody reminder of the struggle to overcome the legacy of slavery and establish democratic governments in the South.  The Colfax Massacre is also a reminder that, while the Civil War Amendments – the 13th, 14th, and 15th – enshrined in our Constitution revolutionary guarantees of liberty and equal protection, some of the promise of those Amendments was thwarted as the Nation grew tired of the project of Reconstruction in the late 19th Century.  Indeed, the full promise of the Amendments remains unfulfilled to this day, although the Supreme Court has the opportunity this Term to begin fixing its earlier errors.

The Colfax Massacre is the bloodiest single incident in the Reconstruction period, according to historian Eric Foner.  On this day in 1873, about 300 white Louisianans armed with rifles and a cannon surrounded the courthouse in Colfax, Louisiana, attempting to seize power from African-American local officials and a group of freedmen and former Union soldiers who were defending the town government.  Shots rang out, and after a skirmish, the black defenders, overmatched and outgunned, attempted to flee the courthouse. Many were shot as they tried to escape.  Others were taken prisoner, and subsequently killed by their captors. Estimates vary widely, but it appears that at least 80 black Americans were killed that day—many in cold blood—by terrorists seeking to destroy the Reconstruction government in Louisiana. The perpetrators of this violence were prosecuted by the federal government but never convicted of a crime, which only served to embolden terrorist organizations like the Ku Klux Klan and other groups seeking to restore racial hierarchy to the South.  

The federal prosecution of the perpetrators of the Colfax Massacre went all the way to the Supreme Court, which resulted in one of the worst decisions in Supreme Court history, United States v. Cruikshank.   In Cruikshank, the Supreme Court held that the 14th Amendment did not allow the federal government to prosecute individuals for violating the fundamental rights of others—including the First Amendment right to assemble and the Second Amendment right to keep and bear arms—even in states that were ignoring racial violence and intimidation. Thanks to Cruikshank’s blatant misreading of the 14th Amendment – ratified eight years earlier and explicitly dedicated to providing federal protection for the privileges and immunities of all Americans – southern state governments systematically turned a blind eye towards the violence, intimidation, and disfranchisement of blacks throughout the South. Cruikshank should have been an easy case.  

The Fourteenth Amendment placed on state governments a duty to protect everyone in their jurisdictions from criminal acts and civil wrongs, and gave Congress the power to secure the right of protection when states refused to carry out their constitutional duty.  As its framers explained, the Fourteenth Amendment was necessary because states had done nothing in the face of daily “acts of cruelty, oppression, and murder.”   The Court did not even consider this history in giving the green light to the Klan to commit murder with impunity.  (We discussed this history at length in a report issued last year, The Shield of National Protection:  The Text and History of Section 5 of the Fourteenth Amendment).

Cruikshank remains “good law” in the Supreme Court’s books, and continues to be cited as controlling precedent.  Just this Term, in the case of McDonald v. City of Chicago, the city of Chicago relied upon Cruikshank in support of its argument that the 14th Amendment’s Privileges or Immunities Clause does not protect substantive fundamental rights – including the individual right to bear arms for self-defense – from state infringement. CAC filed a brief on behalf of a group of prominent constitutional scholars, urging the Court to take the opportunity in McDonald to restore the full protection of the Privileges or Immunities Clause and repudiate the terrible mistake of Cruikshank. Charles Lane’s book on the Colfax Massacre describes April 13, 1873 as “The Day Freedom Died.”

The Colfax Massacre and its aftermath rank among the darkest periods in the history of our Constitution. At CAC, the anniversary of the massacre reminds us of our continuing commitment to encourage the Court  to overrule harmful precedents like Cruikshank that have no basis in constitutional text and history and to help fulfill the Constitution’s promise of liberty and equality for all Americans.