Reposted from David Gans’ 2009 post:

On March 27, 1876…the Supreme Court decided United States v. Cruikshank, one of the worst Supreme Court decisions in American history. The Court annulled the convictions of three men growing out of a massacre in Colfax, Louisiana, in which a white mob killed almost 300 African Americans who were defending a local courthouse, many after the freedmen had surrendered.

This was, in the words of historian Eric Foner, “the bloodiest single act of carnage in all of Reconstruction,” yet the Supreme Court held that the federal government had no power to protect the newly freed slaves from outright murder, even though the State of Louisiana had done nothing to redress these brutal murders. Indeed, the Court pretended the case had nothing to do with race. This was a Court that would stop at nothing to pervert the new Civil War Amendments to our Constitution — the Thirteenth, Fourteenth, and Fifteenth.

Cruikshank should have been an easy case. The Fourteenth Amendment placed on state governments a duty to protect its citizens and other persons living in its jurisdiction from criminal acts and civil wrongs, and gave Congress the right to legislate to secure the right of protection when states refused to carry out their constitutional duty. This right of protection was one of the very reasons the Fourteenth Amendment was added to the Constitution –immediately after the Civil War, Southern states had left the newly freed slaves utterly unprotected from violent reprisals and other wrongs at the hands of white terrorist groups. As the framers of the Fourteenth Amendment 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.

The modern Supreme Court, sadly, treats Cruikshank as foundational, a super-precedent immune from reconsideration because it was decided soon after ratification of the Fourteenth Amendment. Indeed, in 2000, the Court invoked the case in holding unconstitutional the civil rights remedy of the Violence Against Women Act. This is an outrage. Just like Plessy v. Ferguson, which upheld state mandated racial segregation, Cruikshank was wrong the day it was decided, and the Supreme Court should say so.

Next month, CAC will release the second report in our Text and History Narrative Series, The Shield of Protection: The Text and History of Section 5 of the Fourteenth Amendment. As this narrative will recount, the framers of the Fourteenth Amendment established the protection of civil rights as a national commitment, throwing a “shield of national protection” over the liberty and equality of all Americans. The narrative tells the sad story of Cruikshank and numerous other cases that perverted the text and history of the Fourteenth Amendment.

The right of protection that was so important to the framers of the Fourteenth Amendment is lost to us today. It is time we got it back, and fully restore the text and history of the Fourteenth Amendment.