[Charles Lane, guest-blogging, April 2, 2008 at 2:06pm] Trackbacks
Why Cruikshank Was Wrongly Decided

Thanks for the comments on my first post. I'd like to take up Hans Bader's defense of Cruikshank, because it concisely gets to the heart of the matter: the state action requirement found by the Court in that case.

My book goes into this history in some detail, because it is crucial to understand that this requirement, so evident to some in retrospect, was not immediately perceived by all jurists at the time of the 14th Amendment's ratification.

In 1871, the Fifth Circuit held, in a case called US v. Hall, that the 14th Amendment incorporated the Bill of Rights(through the privileges and immunities clause — Prof. Bader and I agree, I think, that this was a proper interpretation that The Slaughterhouse Cases later muddled).

The facts of Hall, briefly, were that a political meeting of black men in Alabama was attacked by Klansmen, with casualties (all black Republicans) including killed and wounded. The US Attorney charged the Klansmen with conspiring to violate the men's First Amendment rights. The Fifth Circuit upheld the indictment by holding not only that the 14th Amendment incorporated the First Amendment against the states, but also — and crucially — that state inaction, i.e., failure to protect rights, was a form of state action. This was not the holding of Judge William B. Woods, the Fifth Circuit judge of the time alone: it was suggested to him privately in a letter from none other than Justice Joseph P. Bradley.

Thus, as of the Colfax Massacre, the law of the land was Hall, which stoo for the proposition that the 14th Amendment could be a shield against anarchy as well as (state) tyranny. This made sense in the context of the time: a contrary ruling would have enabled the Klan to conquer the South simply by creating a state of terror and ungovernability. The Slaughterhouse Cases would modify that considerably, of course; interestingly, Slaughterhouse was decided on April 15, 1873--two days after the Massacre.

The key ruling in Cruikshank was not so much the Supreme Court's 1876 decision as Bradley's 1874 ruling as circuit justice for the 5th Circuit, which overturned both Hall — and, of course, Bradley's own previous (private) view.

In my judgment, this about-face was not dictated by Slaughterhouse, which, even as it reduced the privileges or immunities clause of the 14th Amendment, left open the possibility that assembly, gun possession and due process rights might be part of protected "federal" POI. Furthermore, Slaughterhouse dealt with state action, par excellence: a statute setting up a regulated abbatoir that all butchers must use. It did not necessarily cover the anarchic situation contemplated by Hall — and presented by the Colfax incident.

What happened in between to change Bradley's mind? Remember that he dissented in Slaughterhouse, so you might have expected him to interpret it as narrowly as possible while riding circuit in Cruikshank. Instead, he wielded it aggressively against the federal prosecution.

I would argue that two things — neither of them legal — dictated Bradley's response.

1. Politics. The 1872 election had precipitated a split in Bradley's Republican party, between those who supported Grant's relatively aggressive use of federal power to stifle Klan violence in the South and those who thought it was an unconstitutional fool's errand. Bradley clearly leaned in the latter direction, as did several other Republicans on the Supreme Court at the time.

2. Race. Bradley had never been an abolitionist and in fact had a long history as a pro-South, pro-slavery Northerner. This changed briefly during and shortly after the Civil War, but by 1874, he was thoroughly frustrated with what he saw as the excesses of black-supported "carpetbagger" governments in the South. His dissent in Slaughterhouse was predicated, in part, on his wildly exaggerated belief that the Louisiana slaughterhouse statute was some kind of corrupt carpetbagger imposition, when in fact it was a moderate and sensible public health measure. In Cruikshank, when black lives and not white Southerners' sensibilities were at stake, his judgments changed accordingly.

This may seem unduly harsh as an assessment of Bradley's motivations, but I think it's accurate (at least that's how I argue it in my book). It helps to account for his seeming enthusiasm for a broad view of the 14th Amendment in Slaughterhouse, and his ultra-narrow view in Cruikshank.

The 14th Amendment, by the way, was not the only basis for the federal indictment in Colfax — or for the later decisions by Bradley (and the entire Supreme Court) which struck the indictment down. The 13th and 15th Amendments, and statutes derived from them also played a role. Even if Cruikshank was rightly decided on the 14th, the court might still have upheld the charges on other grounds. But I'll go into that more in a subsequent post.

Dave Hardy (mail) (www):
I've always felt that the rationale of Cruikshank and the Slaughterhouse cases went something like this:

"We CAN'T BELIEVE that the Congress and people meant to do this!"
4.2.2008 3:16pm
Hans Bader (mail):
Bradley's dissent in the Slaughterhouse Cases was perfectly consistent with his Fourteenth Amendment holding in Cruikshank, which recognized what the Supreme Court later reaffirmed in The Civil Rights Cases (1883) and United States v. Morrison (2000): that the Fourteenth Amendment only reaches state action.

Both are consistent with the well-established legal principle that the Fourteenth Amendment only reaches state action, and that Congress lacks the power to regulate private conduct pursuant to the Fourteenth Amendment. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (so holding). Both are consistent with the Fourteenth Amendment's legislative history (e.g., the Bingham Amendment).

Congress would never have passed the Fourteenth Amendment if it had believed that it would allow the federal government to regulate private conduct, and moderate Republicans would never have voted for it if they thought it would have. The Fourteenth Amendment's text itself only says that "states" cannot deny "equal protection," and says nothing about private entities. (And it requires not adequate protection but "equal protection").

The Slaughterhouse Cases involved state action in the form of an anti-competitive state law, the purest form of state action.

By contrast, the prosecution in Cruikshank didn't hinge on state action, but what were deemed to be private acts of violence.

It is true that the conception of the Thirteenth Amendment in Cruikshank has been partially abrogated in subsequent cases, such as Jones v. Alfred H. Mayer Co. (1968), which allow some private racially discriminatory conduct to be prohibited pursuant to legislation passed under Section Two of the Thirteenth Amendment.

But that limited exception to the state action doctrine in the Thirteenth Amendment context doesn't extend beyond race to other categories, like gender, etc., as the federal courts ruled in the Morrison case. See Brzonkala v. Virginia Polytechnic Institute, 935 F. Supp. 779 (W.D. Va. 1996) (invalidating Subtitle II-C of the Violence Against Women Act; rejecting argument that Thirteenth Amendment allows government to reach non-racial private discrimination not tantamount to slavery or involuntary servitude), aff'd sub nom., United States v. Morrison, 529 U.S. 598 (2000). Nor does it extend to the Fourteenth Amendment context, as Morrison made plain.

So a generate federal hate-crimes law remains beyond Congress's regulatory powers, although a more narrowly-focused race-based hate-crimes law aimed at the Klan's racial terrorism is permissible under current Supreme Court precedent pursuant to the Thirteenth Amendment.
4.2.2008 4:08pm
Hans Bader (mail):
My last paragraph in the above post should read "So a general federal hate-crimes law remains beyond Congress's regulatory powers," containing the word "general," not "generate."
4.2.2008 4:11pm
Chris 24601 (mail):
I think Hall is persuasive on the Equal Protection Clause mainly because it gives a compelling explanation of the constitutional text: "Denying includes inaction as well as action, and denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection." The point isn't that private violence is unconstitutional of itself, but that the state's failure to protect was the breach of an affirmative constitutional duty, and that in such circumstances, the federal government could supply such protection. The Court also was following the interpretation given at great length two months before in the Congressional debates leading to the Civil Rights Act of 1871. For much, much more, see here.
4.2.2008 4:22pm
Chris 24601 (mail):
Hans: "And it requires not adequate protection but 'equal protection'..."

But equal protection is just a form of protection. If I have an contractual obligation to supply you green apples, I can't satisfy it by supplying green grapes; the obligation to supply "green apples" is a form of obligation to supply apples. Similarly, a state can't say that it is supplying "equal protection" merely because it supplies no protection to anyone. The duty to supply equal protection is a duty to supply protection, and to supply it equally, just as a duty to supply green apples is a duty to supply apples, and to make sure those apples are green ones.

We could distinguish a provision that says a state shall not deny the equality of the protection of the laws. That sort of provision would require only equality, not protection. But a requirement to supply equal protection is a requirement to supply protection.

For more, see here at 16-17.
4.2.2008 4:31pm
Dave Hardy (mail) (www):
It may be consistent with regard to State action, but the consistency as to incorporation seems doubtful.
4.2.2008 4:42pm
Hans Bader (mail):
True. The Court was wrong to reject incorporation. In saying the Court was correct, I was speaking about the equal protection clause, and the scope of Congress's enforcement power under Section 5, not incorporation.

As the Supreme Court's decision in DeShaney makes clear, there is no constitutional "requirement to supply protection." Thus, equal protection only means protection must be supplied if it would have been supplied to members of a different race -- and the defendant in any prosecution or civil suit alleging such a failure would have to be a state official, not a private party (unless the private party was acting in cahoots with the state official, as alleged in the Addickes v. S.H. Kress Co. case).
4.2.2008 4:52pm
Chris 24601 (mail):
"As the Supreme Court's decision in DeShaney makes clear, there is no constitutional 'requirement to supply protection.'"

But DeShaney is interpreting the Due Process Clause, and gives no consideration to the textual requirement of "protection." Its key argument hinges on the meaning of "deprive," not "deny": "But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without 'due process of law,' but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means." I argue here and here that "nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws" is a requirement to supply the "protection of the laws," a well-known phrase explained as the remedial and law-enforcement functions of government by, e.g., Blackstone and Marbury v. Madison, as well as Hall and the 1871 Republicans.
4.2.2008 5:07pm
cjwynes (mail):
Chris24601, your view of the equal protection clause, that the state's have an affirmative duty under the 14th amendment to protect the rights of the citizens, leaves open the question of which rights must the state take affirmative steps to protect. What protections must the law give, under your view? And if the 14A is supposed to impose such an obligation, does that mean that classifications unrelated to one of those core rights are not the subject of the amendment?

For instance, there is clearly no right to import alcohol to your home state, as states are expressly permitted to forbid that by the 21st amendment. So if Georgia passed a law saying that white people could import beer but blacks could not, and that law were challenged, could they invoke the 14A or not under your theory of it? There can't possibly be an affirmative duty to protect the right to import beer when a later amendment specifically disclaims that citizens have any such right. The ability to move beer across state lines is not among the "protection of the laws".

I suppose you could argue that a state MUST protect A B and C, and MUST do so equally, and MAY protect X Y and Z, and IF it does so then it MUST do so equally. But that would be adding another layer beyond where the text itself goes, and your view is supposedly based on your interpretation of the text.
4.2.2008 6:19pm
Diplomatic Gunboat:
I heartily concur with your view of Cruikshank.

It is a superficially attractive idea to say that "only a government can violate your civil rights." At first it sounds logical. But it is not--when you analyze it you see it is unfounded nonsense. As merely one example, what about a conspiracy of private citizens to prevent a particular group of voters from voting? Another example, the Colfax massacre. The real harm is not only the assaults, wrongful deaths, etc. that can form regular tort claims etc., but also the deprivation of the civil right itself. Your state inaction argument is persuasive, particularly when combined with the 13th and 14th Amendments' express delegations to Congress to pass laws to enforce them, and that neglected clause, the duty to guarantee to the states a republican form of government. The state inaction argument can also protect the state interests imbued in federalism.

I do hope that you will tackle Barron v. Baltimore, which was and is still wrong. The shift of perspective (even paradigm) resulting from critically assessing that decision helps to undermine the current unjustified but extensive structural reluctance to admit what the 14th Amendment meant. This meaning is easily illustrated by both the contemporaneous Civil Rights Act and the Freedmen's Bureau Act, both passed overwhelmingly by supermajorities, overriding ignominious vetoes. In retrospect, the 14th was not phrased as clearly as I might like (there is a degree of ambiguity, which indeed justifies the look at history and context to inform meaning), but it's purpose and meaning are easily discernible when history and context are honestly considered.

Barron was wrongly decided, and the 14th Amendment legitimately went even further than Barron would have had it been properly decided (e.g., Barron properly decided would obviously have left as not self-'incorporating' certain provisions such as "Congress shall make no law . . ."). But, had Barron been decided properly, a private individual could be guilty of violating (infringing) the Second Amendment right of another to keep arms, under its plain meaning. It is an interesting discussion: which rights ought properly be viewed as self-'incorporating' (for lack of a better term). (This should not be confused with the recent Medellin decision on non-self-executing treaties).

Then for your next topic, legal history cries out for an accurate treatment of Bingham as complex but diligent statesman and constitutional scholar in the political trenches.

And by then you'll be ready to pick up the Slaughterhouse cases. There's a lot of ground to be tilled here. The Constitution as exiled by powerful elites (Dred Scott is merely the example with the highest level of consensus).


D. Gunboat
4.2.2008 6:25pm
Chris 24601 (mail):
"What protections must the law give, under your view?"

Chiefly the protection against being violently killed or raped; secondarily protection against having my property seized. To fill in the details, I'd look to the 14A-era treatises (see here at 39-56) that use "protection of the laws."

"[D]oes that mean that classifications unrelated to one of those core rights are not the subject of the amendment?"

As I see it, it's not the subject of the Equal Protection Clause, but it's still covered by the Privileges or Immunities Clause, which forbids second-class citizenship. See here at 33-52. Giving black citizens one set of privileges and white citizens a different one is the core evil, and the only-whites-may-import rule would clearly violate it.
4.2.2008 6:32pm
Asher Steinberg (mail):
I too, cjwynes, would be very curious to learn which rights Chris thinks the states must take steps to protect. A related question I would have for his theory is whether he thinks the nondiscrimination requirement inherent in equal protection applies to all state action or only to those rights which fall under the ambit of 'protection.' For example: let's say Chris thinks 'protection' means that the state has a duty to provide various forms of protection, and 'equal protection' means that it has a duty to provide those forms in an equal manner. Now surely, state universities aren't one of those types of protection. So does that mean that, if the state decides to make state universities, it's not bound by the equal protection clause to be equitable in its provision of them? That would seem odd. But it does seem to follow from his 'green apples' reading of equal protection. If, I take it, I'm bound to provide green apples, I can't say that I fulfilled my obligation simply by not providing red ones instead - I must provide apples (which must be green). But it's also true that an obligation to provide green apples doesn't mean that I have an obligation to provide other green things. Similarly, if I have an obligation to equally protect, and protection only refers to a specific type of state action, it follows that I don't have an obligation to make all non-protective laws equal.
4.2.2008 6:37pm
cjwynes (mail):
To the people who want to turn the 14th amendment on its head: what specific changes do you think that would lead to today? It's one thing to talk about stuff during the first wave of the Klan, but what is evil you are combatting in the modern world with your reenvisioning of the amendment? Heck, alot of private action exposes a person to civil liability by federal law nowadays, by way of the civil rights acts and the ADA.

So what is really pushing the drive to revisit this? Eight steps down the line, does this turn into some agenda-driven argument in opposition to voter ID laws?
4.2.2008 6:48pm
Chris 24601 (mail):
Asher--I think my comment above answers your question. The privileges or immunities clause would require equality in the privileges given to all citizens, like attending a state school.
4.2.2008 6:49pm
Chris 24601 (mail):
"[W]hat specific changes do you think that would lead to today?"

See here at 64-77. Here's the summary from my abstract:

A duty-to-protect Equal Protection Clause would forbid gross misbehavior in the provision of protective services, act as an open-courts provision akin to Magna Charta paragraph 40 and related state-constitutional provisions, require that police services be supplied equally, forbid inequalities like race-based jury nullification that favor criminal or civil defendants, fill a gap in the reasoning in Roe v. Wade on the inference from fetal personhood to the requirement of protection, require that the marital rape exemption be abandoned, suggest serious constitutional troubles for our current system of prosecutorial discretion, and allow the federal government to provide enforcement and remedial services when states have failed to do so.

I've always been more motivated by a desire to make sense of the Equal Protection Clause than by any agenda. I'm actually not super sure of all of my applications as a policy matter, but I do think there is support in the Equal Protection Clause for them.
4.2.2008 7:04pm
Asher Steinberg (mail):
Yeah, it does. I posted it before I saw your comment. Could I ask a question that's been vexing me, since I see you're an equal protection scholar - do you think racial classifications, in and of themselves, independent of any additional harms, stigmas or disadvantages whatsoever, are cognizable injuries? For example, take a fourth grade class of 48 students, 24 whites, 24 blacks. Suppose there are two 4th grade teachers, 24 kids to each, and the school would like to preserve the 50/50 mix in each class for the sake of a diverse learning environment. Parents who have preferences for one teacher or the other get who they want, kids who want to be in the same class with a friend get what they want, and after all that some kids are assigned on the basis of race so both classes will have a 12/12 white/black split. And after that , if you don't like your teacher, you can switch with someone of the same race. Father X sues and says, I have no problem with the teacher my daughter was assigned to, I feel no stigma, I just don't like the fact that she was racially classified. Cognizable injury? I think of course not, but some people have told me yes.
4.2.2008 7:05pm
Gilbert (mail):
I wholeheartedly disagree. All the discussions I can remember from the Congressional Globe defined equal protection as equal to the protection provided a white man; a problematic definition to say the least, but one that does not support your argument, unless you think the government has a constitutional duty to enact certain laws. You might think that, but it's a much different argument at that point.

I also think it is practically impossible because it provides no theory of what sort of protection is required, and your argument about safety (life) and property is both indeterminate and ad hoc.

In short, it would take me a whole lot more space to explain all the different ways I think you are wrong to argue that the Fourteenth Amendment enacted equality through the privileges and immunities clause and guarantees of substantive obligations through the equal protection clause.
4.2.2008 7:18pm
Chris 24601 (mail):
I'm not sure. My work focuses on the Equal Protection Clause itself, rather than exactly how we should implement an equal-citizenship guarantee in the Privileges or Immunities Clause. Offhand, I think that thinking in racial terms tends to produce racial inequality in privileges--creditor and debtor races and the like--but I'm not sure that, just by itself, it counts as such an inequality. The Parents Involved result might be best justified as a prophylactic rule, rather than a demand of the constitution itself. But, as I say, I'm really not sure.
4.2.2008 7:19pm
Gilbert (mail):
^ above is directed to Chris 24601
4.2.2008 7:19pm
Tom Burrell:
I think many of the posters are looking for too much out of the 14th, Section 1. Many members of the 39th referred to the equal protection of the laws in the equal administration of the laws sense and not a substantive guarantee against the laws itself.

If you follow Bingham and Howard's illustrations of what the laws were intended to remedy (e.g., different punishments between white v. black perpetrator), you get a sense of the equal protection clause (or equal burdens language from the CRA of 1866). I still like Garfield's post-ratification interpretation of the equal protection clause. 42 Cong. 1st sess app 48-51.
4.2.2008 7:39pm
Chris 24601 (mail):
I think you're thinking of Thaddeus Stevens's 1866 speech ("Whatever law protects the white man shall afford 'equal' protection to the black man". I don't think it's decisive, mainly because it doesn't give much analysis. See here at 18-20. He certainly doesn't deny a constitutional duty to supply protection, and the congressional interpreters in 1871, who spent a good deal of time parsing Stevens's speech (see here at 24-25), said there was one.

In general, I think that confining ourselves just to the 1866 debates is a big mistake. The material from other Congresses besides the 39th has enormously more textually-reasoned analysis.
4.2.2008 7:40pm
Asher Steinberg (mail):
Well, Parents Involved is entirely different, since there kids were requesting to go to School X and getting sent to School Y ten miles away. In addition, I thought the system the two cities used (especially Louisville) was just horribly tailored to the end they were supposedly pursuing. Diversity's a fine goal, but I'm not sure what purpose is served by trying to make each school in a city mirror the demographic mix of the city as a whole.
4.2.2008 7:45pm
Chris 24601 (mail):
Hey Tom--I cite your piece briefly at note 25 of this. I think you mean pages 149 to 155 of the 1871 Globe for Garfield's speech--page 48 is Rep. Kerr. I like Garfield a lot too, obviously--lots of him in here. (FWIW, he also quoted Stevens's speech at length at page 151.)
4.2.2008 7:53pm
Thales (mail) (www):
Fascinating accounts, Professor Lane. Have you given any thought to the parallels between the 14th Amendment state action vs. inaction issue and the issue of persecution in asylum law? A person is legally a refugee if "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, he is outside the country of their nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country." In the U.S. courts and elsewhere there is growing (but imperfectly realized) recognition that "persecution" can come not only from its traditional source, a state, but also from non-state actors that the state is powerless or unwilling to control, to the effect that the state is an enabler or passive participant in the persecution. I am not suggesting that U.S. constitutional law and international asylum law are sources of authority for one another, but it is interesting to me that the latter has evolved to recognize a legal category that the Court in Cruikshank and other cases of that era remained officially blind to.
4.3.2008 2:54pm
Chris 24601 (mail):
Thales--a related parallel is to the "responsibility to protect" idea in international law: "Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect."
4.3.2008 5:36pm