The Volokh Conspiracy - Why Cruikshank Was Wrongly Decided (part II)

As promised, I'd like to go into the 13th and 15th Amendment issues in Cruikshank, by way of suggesting why Justice Bradley's ruling as circuit justice in the case was so mistaken -- legally, not just morally.

First, consider the indictment by US Attorney J.R. Beckwith. It's hard to summarize a sprawling, 32-count document which scarcely resembles the charging papers of today's criminal justice system. But the gist of his case was as follows.

The first half —Counts 1 through 16—was based on Section 6, the Enforcement Act's anti-conspiracy provision, and charged the white perpetrators with joining together to "injure, oppress, threaten, or intimidate" freedmen so as "to prevent or hinder" their "free exercise and enjoyment" of rights guaranteed by the Constitution or federal law.

In specifying these rights, Beckwith necessarily improvised, doing his best to fit within both the precedents set by the lower courts, and by the newly decided -- and still poorly understood -- Slaughterhouse Cases. In Count 1, Beckwith charged the defendants with violating the black men's "right and privilege peaceably to assemble." In Count 2, he charged a violation of their "right to keep and bear arms for a lawful purpose."

The case for these two counts, based on the First and Second Amendments, respectively, was, indeed, harder to make after Slaughterhouse. But the ruling gave him plausible reasons to try. In enumerating the "privileges and immunities" of citizenship that the Federal government could still protect, Slaughterhouse had specifically mentioned "the right to peaceably assemble and petition for redress of grievances." As for the right to bear arms, Slaughterhouse had said nothing one way or the other.

Count 3 spoke of the two men's right not to be deprived of life and liberty without due process of law. This resembled a claim rejected in Slaughterhouse. However, the right to due process was not only in the post-Civil War 14th Amendment but also in the pre-war 5th Amendment. And though it dissected "privileges and immunities," Slaughterhouse dismissed the plaintiffs' due process claim briefly. To Beckwith, this must have left open the possibility that the Enforcement Act could be construed to protect a 5th Amendment due-process right for men who were not resisting paying a fee to slaughter their cattle, but who themselves had been imprisoned, beaten and killed like animals.

Count 4 cited the freedmen's right to the same legal protection "for the security of their persons and property . . . that is enjoyed by white citizens." Beckwith derived this right -- almost verbatim -- from the statute which established it, the Civil Rights Act of 1866. In Beckwith's view, the allegation flowed from the simple and obvious fact that the white mob at Colfax would never have treated their victims this way if they had been white men.

Count 5 was more general. It spoke of an enterprise to violate the men's "rights, privileges, immunities and protection as citizens of the state of Louisiana and the United States . . . on account of their race and color and for the reason that they, being such citizens, were persons of African descent and race and persons of color and not white citizens."

Count 6 charged the defendants with banding together to punish the Colfax freedmen because they had exercised the right to vote on Election Day, November 4, 1872, at which both state and federal offices had been contested. Count 7 charged them with combining to prevent the Negroes from exercising the right in any future elections.

Count 8 charged the violation of "every, each and all and singular of the several rights and privileges granted or secured to them respectively by the constitution and laws of the United States." It was vague, but Beckwith thought that its advantage lay precisely in its generality. It was a catch-all charge that said, essentially, "Whatever rights the black men may have under the Constitution or federal law, the conspirators violated them."

Beckwith based counts 16 through 32 on Section 7 of the Enforcement Act — its penalty provision, which provided that, if conspirators committed any common-law felony in the course of their unlawful enterprise, they would face the prescribed penalty of the state in which they lived. Thus, they repeated the litany of violated rights from the first 16 counts, but added that the conspirators had murdered a freedman in the process of violating his rights. If the jury convicted on any of these 16 counts, the defendants would get Louisiana's penalty for murder: death.

In this respect, Beckwith's case was utterly revolutionary: Southern white men, he said, should pay with their lives for killing black men. The fact that he proposed to make this happen on the basis of largely black prosecution testimony was even more audacious.

Beckwith was giving the jury so many different ways to convict that they would take at least one. Given the ambiguous text of the Enforcement Act and the uncertainties created by Slaughterhouse, the indictment was a credible effort. In crucial respects, it was similar to indictments used to convict Klansmen in other states.

Moreover, as a good real-world practitioner, Beckwith was acting on his knowledge that William Woods, the Republican author of U.S. v. Hall, would preside over this trial as circuit judge. To be sure, in Slaughterhouse -- now binding precedent -- the Supreme Court had not embraced Woods' broad view of U.S. citizenship. But, given Woods' record, Beckwith had every reason to hope he would find a way around that problem.

Crucially, federal law of the time provided for no appeals to the Supreme Court in criminal cases. Cases could reach the high court only if two judges sat on the trial, and disagreed on a legal issue. Thus, strategically Beckwith's aggressive indictment also made since, since with only Woods presiding, no such "division of opinion" could occur.

It was only happenstance that the first trial, during February and March 1874, ended in a hung jury, necessitating a second trial that happened to fall during Bradley's circuit-riding in New Orleans during May and June. If there had been a verdict of any kind in the first trial there would have been no US v. Cruikshank, 92 US 542. Such are the accidents of history.

So, how did Justice Bradley dismantle the indictment (on a post-conviction motion in arrest of judgment)?

The first two counts, premised on 14th Amendment incorporation of rights to assemble and bear arms were easy: No state action + Slaughterhouse. Fair enough -- though it was, at the very least, hypocritical of Bradley to invoke Slaughterhouse, since in that case he had been outraged by a state law that merely required white men to pay a fee to slaughter their livestock.

Ditto for Count 3, the due process violation.

But then Bradley came to Count 4, derived from the Civil Rights Act. And Bradley had long believed, as he wrote in his famous dissent in U.S. v. Blyew, that the Civil Rights Act was valid legislation under the 13th Amendment, since it was necessary to destroying the incidents of slavery. The 13th Amendment did permit Congress to criminalize individual behavior, Bradley believed, since it contained no state action language.

This is where Bradley went off on what today we might describe as a flight of judicial activism -- showing, in the process, how his views were evolving to reflect the growing pro-South opinion of Northern conservative Republicans.

He struck down the count because it failed expressly to allege that the conspirators had acted with a racial motive. No federal court had ever required such a clear statement in criminal pleadings. Bradley just made it up, contending that otherwise it might be possible for people who were not former African slaves to gain the protections of the Civil Rights Act -- as if that were a bad thing. Even accepting Bradley's point (that Congress did intend to protect freedmen first and foremost) it was utterly formalistic for him to insist on a precise clear statement in this case, considering that Beckwith had specified that the victims were black, and that they had been denied the rights they would have gotten if white. "It ought not to have been left to inference" -- no matter how clear -- "it ought to have been alleged," this jurist huffed.

Count 5, however, did specifically allege that the men's rights had been violated "on account of race." How would Bradley overcome that? Now he invoked different criteria, noting simply that the allegation of violated rights was too vague. It didn't specifically say which privileges and immunities the men had been denied by being attacked and killed. He used the same argument to get rid of Count 8. To me, this is the best demonstraton of his bad-faith determination to void these indictments.

As for counts 6 and 7, the voting rights violations, Bradley once again invoked his racial-intent clear statement rule. He argued that the Enforcement Act was unconstitutional insofar as it did not limit federal authority to cases in which voting rights were denied "on account of race." This, too, was brand-new. No federal judge had ever even suggested such a rule. It also blew by the obvious facts of the case: an attack on blacks by whites plainly motivated by race -- as abundant testimony in the trial showed.

Another demonstration of Bradley's true, political intent: Bradley could have ordered the defendants held without bail, while Beckwith empaneled a new grand jury and attempted an indictment that would meet Bradley's new specifications. Instead, the justice sua sponte ordered them released on bail. They vanished into the swamps and backwoods of Central Louisiana, far beyond the reach of the poorly-funded, outgunned federal law enforcement team in the state.

The Supreme Court in its final ruling two years later did not go as far as Bradley did in striking down the Enforcement Act's conspiracy provision for lacking a racial-intent clear statement rule. But it did hold that no case could be made under the Act without both alleging and proving such intent. As Beckwith and other US Attorneys recognized, this was a distinction without much of a difference: in the real world of the post-Civil War South, proving specific racist intent to a jury beyond a reasonable doubt would be a tall order indeed.

Thus did Cruikshank help cripple federal law enforcement in the South after Reconstruction.

	[Charles Lane, guest-blogging, April 3, 2008 at 10:21pm] Trackbacks Why Cruikshank Was Wrongly Decided (part II) As promised, I'd like to go into the 13th and 15th Amendment issues in Cruikshank, by way of suggesting why Justice Bradley's ruling as circuit justice in the case was so mistaken -- legally, not just morally. First, consider the indictment by US Attorney J.R. Beckwith. It's hard to summarize a sprawling, 32-count document which scarcely resembles the charging papers of today's criminal justice system. But the gist of his case was as follows. The first half —Counts 1 through 16—was based on Section 6, the Enforcement Act's anti-conspiracy provision, and charged the white perpetrators with joining together to "injure, oppress, threaten, or intimidate" freedmen so as "to prevent or hinder" their "free exercise and enjoyment" of rights guaranteed by the Constitution or federal law. In specifying these rights, Beckwith necessarily improvised, doing his best to fit within both the precedents set by the lower courts, and by the newly decided -- and still poorly understood -- Slaughterhouse Cases. In Count 1, Beckwith charged the defendants with violating the black men's "right and privilege peaceably to assemble." In Count 2, he charged a violation of their "right to keep and bear arms for a lawful purpose." The case for these two counts, based on the First and Second Amendments, respectively, was, indeed, harder to make after Slaughterhouse. But the ruling gave him plausible reasons to try. In enumerating the "privileges and immunities" of citizenship that the Federal government could still protect, Slaughterhouse had specifically mentioned "the right to peaceably assemble and petition for redress of grievances." As for the right to bear arms, Slaughterhouse had said nothing one way or the other. Count 3 spoke of the two men's right not to be deprived of life and liberty without due process of law. This resembled a claim rejected in Slaughterhouse. However, the right to due process was not only in the post-Civil War 14th Amendment but also in the pre-war 5th Amendment. And though it dissected "privileges and immunities," Slaughterhouse dismissed the plaintiffs' due process claim briefly. To Beckwith, this must have left open the possibility that the Enforcement Act could be construed to protect a 5th Amendment due-process right for men who were not resisting paying a fee to slaughter their cattle, but who themselves had been imprisoned, beaten and killed like animals. Count 4 cited the freedmen's right to the same legal protection "for the security of their persons and property . . . that is enjoyed by white citizens." Beckwith derived this right -- almost verbatim -- from the statute which established it, the Civil Rights Act of 1866. In Beckwith's view, the allegation flowed from the simple and obvious fact that the white mob at Colfax would never have treated their victims this way if they had been white men. Count 5 was more general. It spoke of an enterprise to violate the men's "rights, privileges, immunities and protection as citizens of the state of Louisiana and the United States . . . on account of their race and color and for the reason that they, being such citizens, were persons of African descent and race and persons of color and not white citizens." Count 6 charged the defendants with banding together to punish the Colfax freedmen because they had exercised the right to vote on Election Day, November 4, 1872, at which both state and federal offices had been contested. Count 7 charged them with combining to prevent the Negroes from exercising the right in any future elections. Count 8 charged the violation of "every, each and all and singular of the several rights and privileges granted or secured to them respectively by the constitution and laws of the United States." It was vague, but Beckwith thought that its advantage lay precisely in its generality. It was a catch-all charge that said, essentially, "Whatever rights the black men may have under the Constitution or federal law, the conspirators violated them." Beckwith based counts 16 through 32 on Section 7 of the Enforcement Act — its penalty provision, which provided that, if conspirators committed any common-law felony in the course of their unlawful enterprise, they would face the prescribed penalty of the state in which they lived. Thus, they repeated the litany of violated rights from the first 16 counts, but added that the conspirators had murdered a freedman in the process of violating his rights. If the jury convicted on any of these 16 counts, the defendants would get Louisiana's penalty for murder: death. In this respect, Beckwith's case was utterly revolutionary: Southern white men, he said, should pay with their lives for killing black men. The fact that he proposed to make this happen on the basis of largely black prosecution testimony was even more audacious. Beckwith was giving the jury so many different ways to convict that they would take at least one. Given the ambiguous text of the Enforcement Act and the uncertainties created by Slaughterhouse, the indictment was a credible effort. In crucial respects, it was similar to indictments used to convict Klansmen in other states. Moreover, as a good real-world practitioner, Beckwith was acting on his knowledge that William Woods, the Republican author of U.S. v. Hall, would preside over this trial as circuit judge. To be sure, in Slaughterhouse -- now binding precedent -- the Supreme Court had not embraced Woods' broad view of U.S. citizenship. But, given Woods' record, Beckwith had every reason to hope he would find a way around that problem. Crucially, federal law of the time provided for no appeals to the Supreme Court in criminal cases. Cases could reach the high court only if two judges sat on the trial, and disagreed on a legal issue. Thus, strategically Beckwith's aggressive indictment also made since, since with only Woods presiding, no such "division of opinion" could occur. It was only happenstance that the first trial, during February and March 1874, ended in a hung jury, necessitating a second trial that happened to fall during Bradley's circuit-riding in New Orleans during May and June. If there had been a verdict of any kind in the first trial there would have been no US v. Cruikshank, 92 US 542. Such are the accidents of history. So, how did Justice Bradley dismantle the indictment (on a post-conviction motion in arrest of judgment)? The first two counts, premised on 14th Amendment incorporation of rights to assemble and bear arms were easy: No state action + Slaughterhouse. Fair enough -- though it was, at the very least, hypocritical of Bradley to invoke Slaughterhouse, since in that case he had been outraged by a state law that merely required white men to pay a fee to slaughter their livestock. Ditto for Count 3, the due process violation. But then Bradley came to Count 4, derived from the Civil Rights Act. And Bradley had long believed, as he wrote in his famous dissent in U.S. v. Blyew, that the Civil Rights Act was valid legislation under the 13th Amendment, since it was necessary to destroying the incidents of slavery. The 13th Amendment did permit Congress to criminalize individual behavior, Bradley believed, since it contained no state action language. This is where Bradley went off on what today we might describe as a flight of judicial activism -- showing, in the process, how his views were evolving to reflect the growing pro-South opinion of Northern conservative Republicans. He struck down the count because it failed expressly to allege that the conspirators had acted with a racial motive. No federal court had ever required such a clear statement in criminal pleadings. Bradley just made it up, contending that otherwise it might be possible for people who were not former African slaves to gain the protections of the Civil Rights Act -- as if that were a bad thing. Even accepting Bradley's point (that Congress did intend to protect freedmen first and foremost) it was utterly formalistic for him to insist on a precise clear statement in this case, considering that Beckwith had specified that the victims were black, and that they had been denied the rights they would have gotten if white. "It ought not to have been left to inference" -- no matter how clear -- "it ought to have been alleged," this jurist huffed. Count 5, however, did specifically allege that the men's rights had been violated "on account of race." How would Bradley overcome that? Now he invoked different criteria, noting simply that the allegation of violated rights was too vague. It didn't specifically say which privileges and immunities the men had been denied by being attacked and killed. He used the same argument to get rid of Count 8. To me, this is the best demonstraton of his bad-faith determination to void these indictments. As for counts 6 and 7, the voting rights violations, Bradley once again invoked his racial-intent clear statement rule. He argued that the Enforcement Act was unconstitutional insofar as it did not limit federal authority to cases in which voting rights were denied "on account of race." This, too, was brand-new. No federal judge had ever even suggested such a rule. It also blew by the obvious facts of the case: an attack on blacks by whites plainly motivated by race -- as abundant testimony in the trial showed. Another demonstration of Bradley's true, political intent: Bradley could have ordered the defendants held without bail, while Beckwith empaneled a new grand jury and attempted an indictment that would meet Bradley's new specifications. Instead, the justice sua sponte ordered them released on bail. They vanished into the swamps and backwoods of Central Louisiana, far beyond the reach of the poorly-funded, outgunned federal law enforcement team in the state. The Supreme Court in its final ruling two years later did not go as far as Bradley did in striking down the Enforcement Act's conspiracy provision for lacking a racial-intent clear statement rule. But it did hold that no case could be made under the Act without both alleging and proving such intent. As Beckwith and other US Attorneys recognized, this was a distinction without much of a difference: in the real world of the post-Civil War South, proving specific racist intent to a jury beyond a reasonable doubt would be a tall order indeed. Thus did Cruikshank help cripple federal law enforcement in the South after Reconstruction.