The Volokh Conspiracy - More Evidence on Cruikshank

I'll get back to the role of the 13th and 15th amendments in the Supreme Court's erroneous Cruikshank decision. But for now, I just wanted to add another piece of interesting evidence regarding the intent of the framers of the 14th, as well as the other two.

One of the little nuggets you'll find in my book, The Day Freedom Died, is a recreation of the Supreme Court oral argument in the case, based on a near-verbatim transcript published in the Baltimore Sun of April 1 & 2, 1875. Of particular interest is the second-day rebuttal delivered by Attorney General George H. Williams. A former Republican Senator from Oregon, he invoked his experience as one of the drafters of the 13, 14 and 15th Amendments, as well as all the civil rights legislation to enforce them.

Williams' words to the Court are especially significant today as evidence — previously unreported, to my knowledge — regarding the intent of the framers of those post-Civil War provisions.

Remember that the other side in the case was arguing that the Enforcement Acts were unconstitutional because they amounted to federal usurpation of state police powers that remained unchanged by the Civil War Amendments. Anyway, here's what Williams said:

First, he made an implicit allusion to the antebellum Fugitive Slave Law, noting that it had been upheld (in Prigg), and that the 14th Amendment had simply enabled Congress to apply the same principles of federal authority to a law enforcement statute that operated to the benefit of African Americans. He said: "the original constitution recognized the right of the slaveholder to property in his slaves and the Supreme Court decided that Congress had the right to pass a law to protect him in those rights. If the time ever comes when as liberal a construction shall be given to laws designed to protect human freedom as had always been given to laws designed to protect human slavery, then the doctrine of the government in this case would be admitted."

Recounting the legislative history of the Civil War amendments, the Civil Rights Act of 1866, and the Enforcement Act, he explained to the court that "by the 13th and 14th Amendments, and the civil rights bill, the people of the United States intended to secure to the colored man, under the protection of the United States, the right to make contracts, to sue, to hold property, and the various other rights of citizenship." Alluding to the dissenters' words in The Slaughterhouse Cases, he said that his opponents in this case "contended that the 14th Amendment was nothing more than an empty formula and amounts to nothing—nothing but empty and vain words" — but this had to be wrong. "Even before the adoption of the late Amendments Congress had the power to protect the right to vote for presidential electors," Williams argued.

Justice Joseph P. Bradley cut him off. "Suppose Congress should enact a law making it a felony to steal the property of another," Bradley asked. "Congress has the undoubted right to punish the stealing of the property of the government, or of property in the service of the government, but beyond that the law would be unconstitutional. Now, when a law is so framed that one part is constitutional and another unconstitutional, and the two are so bound together as to be impossible to sever, can you hold one part constitutional and the other part unconstitutional?"

Bradley's point was implicit but clear: the plain language of the Enforcement Act's conspiracy provision seemed to protect both white and black voters from conspiracies to interfere with their rights, whether racially motivated or not. But if the court felt the post-Civil War amendments only authorized Congress to punish racially-motivated violence—which was Bradley's position--how could it salvage any part of the statute?

Williams replied that "the law could be enforced as to those offences which it is admitted are within the power of Congress to provide for." That had to include at least elections for Congress, Williams argued, because "the very existence of the government depends upon these elections. If Congress has no power to protect the voters, then the White League of Louisiana, a minority of the people, can stand around the polls and prevent the majority from voting." This was similar to an argument that Judge Hugh Lennox Bond of the 4th Circuit had found persuasive in upholding Klan indictments in 1871.

Williams pressed the point: "The learned counsel on the other side said that the fathers never attempted to exercise these powers. Did the counsel forget the great civil revolution through which we had passed? The fathers had never exercised those powers because there was no necessity to exercise them. Just as it was necessary to exercise certain powers during the rebellion never before exercised, so now it was necessary to exercise powers to maintain the results wrought out of that rebellion. The fifteenth amendment confers upon the colored people the right to vote. Unless Congress has the power to enforce that guarantee it is of no value whatever."

Democratic Justice Nathan Clifford observed that in his home state, Maine, "the colored man always had the right to vote," so there was no need for a 15th Amendment there. Clifford asked Williams: "If two indictments were found of conspiracy, one to prevent the colored man from voting and the other a white man from voting, would the Circuit Courts of the United States have jurisdiction of both cases?"

"They would in the case of the black man," Williams answered. "I don't contend that they would in the case of the white man."

"Then colored men have more rights in the United States courts than white men," Clifford shot back.

"That does not follow," Williams insisted. "The constitution does not confer upon white people the right to vote, but it does upon colored people and thence the power of Congress arises to protect them in that right." He did not mean to suggest that Negroes have greater rights than whites, Williams added, but surely the purpose of the post-Civil War amendments was to free them from slavery, guarantee them equal rights, and protect them against discrimination. Floundering a bit, Williams said he would modify his answer to Clifford: to keep it consistent with his answer to Bradley, it would be better to say that the federal government could prosecute a conspiracy to violate a white man's right to vote at a congressional election, but not if the violation was at a state election.

Finally, Justice William Strong, one of the Grant appointees whose vote Williams had to win, piped up with a friendly question — as Justice Scalia occasionally pitches a softball to lawyers on "his" side today. Could the federal government prosecute a conspiracy to prevent a man from voting because he was the son of an Irishman? "It would certainly be a race discrimination," Strong observed.

Strong was countering Clifford's extreme suggestion by offering the Attorney General a hypothetical case in which at least some white voters could come under federal protection. When Williams did not at first seem to grasp Strong's point, the justice sharpened it by asking, "Suppose the State of South Carolina, where the majority of the population are colored, should change the constitution of that state and say that no white man should vote, would a remedy against that lie in the United States court?" Now his point was clear. Even under the argument made by the defense, Congress could nullify explicitly discriminatory state laws. The example was obvious and showed how silly Clifford's question had been.

Williams, seemingly relieved, answered yes — and got back to arguing from his own experience as a Senator. "My idea, in the main, of these amendments was that any and every right guaranteed by them may be protected in the courts of the United States," he declared. "Give that construction to these amendments and they are of some value, give them the other construction and the freedom vouchsafed to the Negro becomes practically a curse. Any doubt as to the validity of this act should be resolved in its favor. Bear in mind that these amendments and the legislation under them were practically made by the same hands. Is it to be supposed that those who drew the amendments did not know their scope? According to the arguments on the other side it must be assumed of the Senators and Representatives either that they violated their oath or that they did not know the meaning of the language which they used themselves."

"Ever since the years of the war," he said, "no matter what was done to preserve the Union, and to protect the rights of the citizens, it has been met with these lugubrious schemes that you are encroaching upon state authority. . . . Millions of people are today waiting with feverish anxiety the verdict of this court, conscious that their lives and liberties are wrapped up in it. If this court decides in favor of this law it will do more to restore peace and quiet to this land than any decision or any legislation since the close of the war."

"I look forward to the day," Williams concluded, "when we can consider ourselves not a nation of inharmonious and warring sovereigns, but a Union whose broad shield shall protect--in all and every right of a freeman and a citizen--her people from one end to the other."

Well put, but, alas, in vain.

	[Charles Lane, guest-blogging, April 2, 2008 at 10:11pm] Trackbacks More Evidence on Cruikshank I'll get back to the role of the 13th and 15th amendments in the Supreme Court's erroneous Cruikshank decision. But for now, I just wanted to add another piece of interesting evidence regarding the intent of the framers of the 14th, as well as the other two. One of the little nuggets you'll find in my book, The Day Freedom Died, is a recreation of the Supreme Court oral argument in the case, based on a near-verbatim transcript published in the Baltimore Sun of April 1 & 2, 1875. Of particular interest is the second-day rebuttal delivered by Attorney General George H. Williams. A former Republican Senator from Oregon, he invoked his experience as one of the drafters of the 13, 14 and 15th Amendments, as well as all the civil rights legislation to enforce them. Williams' words to the Court are especially significant today as evidence — previously unreported, to my knowledge — regarding the intent of the framers of those post-Civil War provisions. Remember that the other side in the case was arguing that the Enforcement Acts were unconstitutional because they amounted to federal usurpation of state police powers that remained unchanged by the Civil War Amendments. Anyway, here's what Williams said: First, he made an implicit allusion to the antebellum Fugitive Slave Law, noting that it had been upheld (in Prigg), and that the 14th Amendment had simply enabled Congress to apply the same principles of federal authority to a law enforcement statute that operated to the benefit of African Americans. He said: "the original constitution recognized the right of the slaveholder to property in his slaves and the Supreme Court decided that Congress had the right to pass a law to protect him in those rights. If the time ever comes when as liberal a construction shall be given to laws designed to protect human freedom as had always been given to laws designed to protect human slavery, then the doctrine of the government in this case would be admitted." Recounting the legislative history of the Civil War amendments, the Civil Rights Act of 1866, and the Enforcement Act, he explained to the court that "by the 13th and 14th Amendments, and the civil rights bill, the people of the United States intended to secure to the colored man, under the protection of the United States, the right to make contracts, to sue, to hold property, and the various other rights of citizenship." Alluding to the dissenters' words in The Slaughterhouse Cases, he said that his opponents in this case "contended that the 14th Amendment was nothing more than an empty formula and amounts to nothing—nothing but empty and vain words" — but this had to be wrong. "Even before the adoption of the late Amendments Congress had the power to protect the right to vote for presidential electors," Williams argued. Justice Joseph P. Bradley cut him off. "Suppose Congress should enact a law making it a felony to steal the property of another," Bradley asked. "Congress has the undoubted right to punish the stealing of the property of the government, or of property in the service of the government, but beyond that the law would be unconstitutional. Now, when a law is so framed that one part is constitutional and another unconstitutional, and the two are so bound together as to be impossible to sever, can you hold one part constitutional and the other part unconstitutional?" Bradley's point was implicit but clear: the plain language of the Enforcement Act's conspiracy provision seemed to protect both white and black voters from conspiracies to interfere with their rights, whether racially motivated or not. But if the court felt the post-Civil War amendments only authorized Congress to punish racially-motivated violence—which was Bradley's position--how could it salvage any part of the statute? Williams replied that "the law could be enforced as to those offences which it is admitted are within the power of Congress to provide for." That had to include at least elections for Congress, Williams argued, because "the very existence of the government depends upon these elections. If Congress has no power to protect the voters, then the White League of Louisiana, a minority of the people, can stand around the polls and prevent the majority from voting." This was similar to an argument that Judge Hugh Lennox Bond of the 4th Circuit had found persuasive in upholding Klan indictments in 1871. Williams pressed the point: "The learned counsel on the other side said that the fathers never attempted to exercise these powers. Did the counsel forget the great civil revolution through which we had passed? The fathers had never exercised those powers because there was no necessity to exercise them. Just as it was necessary to exercise certain powers during the rebellion never before exercised, so now it was necessary to exercise powers to maintain the results wrought out of that rebellion. The fifteenth amendment confers upon the colored people the right to vote. Unless Congress has the power to enforce that guarantee it is of no value whatever." Democratic Justice Nathan Clifford observed that in his home state, Maine, "the colored man always had the right to vote," so there was no need for a 15th Amendment there. Clifford asked Williams: "If two indictments were found of conspiracy, one to prevent the colored man from voting and the other a white man from voting, would the Circuit Courts of the United States have jurisdiction of both cases?" "They would in the case of the black man," Williams answered. "I don't contend that they would in the case of the white man." "Then colored men have more rights in the United States courts than white men," Clifford shot back. "That does not follow," Williams insisted. "The constitution does not confer upon white people the right to vote, but it does upon colored people and thence the power of Congress arises to protect them in that right." He did not mean to suggest that Negroes have greater rights than whites, Williams added, but surely the purpose of the post-Civil War amendments was to free them from slavery, guarantee them equal rights, and protect them against discrimination. Floundering a bit, Williams said he would modify his answer to Clifford: to keep it consistent with his answer to Bradley, it would be better to say that the federal government could prosecute a conspiracy to violate a white man's right to vote at a congressional election, but not if the violation was at a state election. Finally, Justice William Strong, one of the Grant appointees whose vote Williams had to win, piped up with a friendly question — as Justice Scalia occasionally pitches a softball to lawyers on "his" side today. Could the federal government prosecute a conspiracy to prevent a man from voting because he was the son of an Irishman? "It would certainly be a race discrimination," Strong observed. Strong was countering Clifford's extreme suggestion by offering the Attorney General a hypothetical case in which at least some white voters could come under federal protection. When Williams did not at first seem to grasp Strong's point, the justice sharpened it by asking, "Suppose the State of South Carolina, where the majority of the population are colored, should change the constitution of that state and say that no white man should vote, would a remedy against that lie in the United States court?" Now his point was clear. Even under the argument made by the defense, Congress could nullify explicitly discriminatory state laws. The example was obvious and showed how silly Clifford's question had been. Williams, seemingly relieved, answered yes — and got back to arguing from his own experience as a Senator. "My idea, in the main, of these amendments was that any and every right guaranteed by them may be protected in the courts of the United States," he declared. "Give that construction to these amendments and they are of some value, give them the other construction and the freedom vouchsafed to the Negro becomes practically a curse. Any doubt as to the validity of this act should be resolved in its favor. Bear in mind that these amendments and the legislation under them were practically made by the same hands. Is it to be supposed that those who drew the amendments did not know their scope? According to the arguments on the other side it must be assumed of the Senators and Representatives either that they violated their oath or that they did not know the meaning of the language which they used themselves." "Ever since the years of the war," he said, "no matter what was done to preserve the Union, and to protect the rights of the citizens, it has been met with these lugubrious schemes that you are encroaching upon state authority. . . . Millions of people are today waiting with feverish anxiety the verdict of this court, conscious that their lives and liberties are wrapped up in it. If this court decides in favor of this law it will do more to restore peace and quiet to this land than any decision or any legislation since the close of the war." "I look forward to the day," Williams concluded, "when we can consider ourselves not a nation of inharmonious and warring sovereigns, but a Union whose broad shield shall protect--in all and every right of a freeman and a citizen--her people from one end to the other." Well put, but, alas, in vain.