Crimes of Omission: State-Action Doctrine and Anti-Lynching Legislation in the Jim Crow Era.

• Author: Zier, Magdalene

Introduction I. The Case for Constitutionality: State Negativity as State Action II. Fortifying the "Solid South" A. Honing the Filibuster B. States' Rights and Responsibilities III. Black Americans and the GOP in the 1920s A. Shipwreck B. "The Treachery of Colored Men" IV. Moore v. Dempsey: A De Facto Dyer Bill? V. And Yet They Paused 817 Introduction

After more than a century of failure, Congress now stands closer than ever to making lynching a federal crime. In the final days of 2018, the Senate unanimously approved the Justice for Victims of Lynching Act. (1) On February 26, 2020, the House joined in support, passing the Emmett Till Antilynching Act. (2) As the still-pending legislation acknowledges, at least 4,742 people were lynched in the United States between 1882 and 1968, but Congress failed to pass any of the nearly 200 anti-lynching bills introduced during the first half of the twentieth century. (3) Seven presidents petitioned Congress to end lynching, and the House even passed three promising bills, but the Senate never budged. (4) In 2005, the Senate issued an apology for its particular complicity. (5) Deeming that symbolic gesture insufficient for genuine "repentance" and "reconciliation," in 2018 the Senate's three Black members revived the push for a federal anti-lynching law that had begun more than a century earlier. (6)

The first push for federal anti-lynching legislation can be traced to the turn of the twentieth century and the organizing efforts of Black leaders. Although Black Americans had faced lethal racial violence before, during, and immediately following emancipation, the rate of lynching rose significantly in the 1890s. (7) As Radical Republicans retreated from Reconstruction, Southern whites reasserted their supremacy, imposing Jim Crow segregation and initiating a reign of racial terror. (8) Activists like Ida B. Wells worked to expose the savagery of lynching as an apparatus of racial violence, to debunk the pervasive myth that lynch mobs avenged the rape of white women, and to revive the public and legislative concern for Black lives that seemingly died during the retreat from Reconstruction. (9)

States had the authority to prosecute violent crimes, but many had made clear that they had no will to penalize perpetrators of lynchings and other anti-Black acts. (10) Against the backdrop of late-nineteenth-century Supreme Court decisions constraining the Fourteenth Amendment, early federal legislative efforts failed, including Representatives Moody and Hoar's noteworthy proposals. (11) But such initial efforts heightened awareness of lynching and pushed Americans to see "Southern horrors" (12) as a national problem. In 1908, after a deadly race riot rocked Springfield, Illinois, an interracial group of activists joined forces to combat racist violence and soon created the National Association for the Advancement of Colored People (NAACP). (13) While other groups, like the National Equal Rights League, also contributed to the anti-lynching crusade, the NAACP emerged as the most prominent force behind the cause, especially when it came to Washington, D.C., politics. (14)

Hope for passage peaked on the heels of World War I. Following race riots in East St. Louis in 1917, (15) Republican Congressman Leonidas Dyer introduced the most ambitious anti-lynching proposal to date. (16) Dyer had built his career as a progressive attorney in St. Louis, championing reforms like anti-usury laws. Elected in 1910 to represent Missouri's Twelfth District, which had a majority-Black population, Dyer was one of his party's staunchest advocates for racial justice. (17) Dyer was white; there were no Black members of Congress between 1901 and 1929. (18) His contribution to the cause coincided with a surge in anti-Black violence and mass mobilization against it. Rates of lynching spiked following World War I, as white Americans lashed out at Black veterans who had served on the front lines and Black communities who had made strides on the home front. (19) The infamous Red Summer of 1919 saw white supremacist violence erupt in more than three dozen cities across the country. (20) Americans could not ignore the racial terror overtaking the nation, and organizations like the NAACP took advantage of the public's attention by recruiting members, soliciting donors, and crafting legislative proposals. (21)

The Dyer Anti-Lynching Bill empowered the federal government to prosecute any individual who participated in a lynching and any law-enforcement officer who failed to intervene. (22) In addition to these criminal provisions, the bill also authorized federal prosecutors to pursue a civil penalty of up to $10,000 from any county in which a lynching occurred. (23) In the words of James Weldon Johnson, the NAACP's executive secretary, this "vital section" turned lynching from "cheap fun" into an expensive habit: "When it begins to cost taxpayers money to lynch Negroes somebody is going to see that it is stopped." (24) Invoking what Professor Derrick Bell would later label the "interest-convergence dilemma," (25) Johnson predicted that ending lynching would depend on white Americans' feeling its financial harm, since most refused to recognize its moral expense.

Both Congress and the public erupted in debate about Dyer's controversial proposal. A wide variety of Americans--Black and white, Northern and Southern, Democrat and Republican--had something to say about the Dyer Bill. Some opponents led with blatant bigotry, but most cited constitutional concerns. They argued that the authority that the Dyer Bill gave the federal government to prosecute individuals constituted an abuse of federalism and a violation of the state-action limitation on Congress's powers under the Fourteenth Amendment. (26) Although the Force Act of 1871, (27) a civil rights bill passed during the first Reconstruction, had provided for federal criminal prosecution of those who conspired to deny persons equal protection of the laws, it was significantly undercut by the Supreme Court in 1883. (28) In the eyes of the Dyer Bill's opponents, the proposed legislation attempted to revive a discredited form of federal intrusion into the prerogatives of the states. In rebuttal, supporters contended that the states' woeful failure to prevent lynching justified federal intervention, and they argued that the Court's existing jurisprudence on the state-action doctrine misinterpreted the intent of the Fourteenth Amendment's Framers. (29) After more than three years of back-and-forth, (30) the House passed the Dyer Bill on January 26, 1922 (31) The Senate Judiciary Committee, President Harding, and the Attorney General lent their support too, but the bill ultimately died in December 1922 when Republicans surrendered to the Southern Democrats' filibuster. (32) Before 2020, no subsequent anti-lynching proposals had come closer to passage than the Dyer Bill.

This Note offers a novel reading of the Dyer Bill's development and demise, challenging standard assumptions about how members of Congress and their constituents regarded the Fourteenth Amendment in the Jim Crow era and about Black Americans' fidelity to the Republican Party. Long before the 1964 Civil Rights Act or even the New Deal, the Dyer Bill debates prompted Americans to confront Congress's unique prerogatives under the Enforcement Clause of the Fourteenth Amendment. To capture this broader context, this Note looks beyond the pages of the Congressional Record and incorporates various archival material, especially newspaper coverage of the wider public debate about the bill. (33) Upending assumptions that Americans in the first half of the twentieth century considered the Fourteenth Amendment a dead letter for achieving racial justice, (34) these sources reveal a country actively concerned with the Amendment's promise and possibilities. Proponents and opponents alike reevaluated Congress's authority to define the bounds of the Fourteenth Amendment and questioned whether state omission could qualify as state action. This was not a period of consensus or contestation only at the margins or among the most dedicated activists; members of the public joined in discussing questions of constitutional meaning.

The anti-lynching crusade is scarcely a forgotten history, but traditional treatments fail to capture the legal and historical significance of the legislative campaign. On the one hand, many legal scholars have chosen to center the Supreme Court instead of legislative initiatives such as the Dyer Bill and what the debates surrounding them reveal about popular constitutional understandings and controversies. (35) So, too, legal commentary on the Fourteenth Amendment's Enforcement Clause omits this period, skipping between the first and second Reconstructions and assuming that hostility toward federal power saturated legal consciousness once Jim Crow segregation became settled law. (36) Meanwhile, many scholars of African American history have focused more on the social elements of this period, like religion, journalism, and the arts. (37) Finally, the handful of legal historians who have highlighted the Dyer Bill emphasize its broader significance in the organizational development of the NAACP rather than the nuances of the bill's constitutional meanings. (38) Like much revisionist work, which recovers grassroots activists' role in advancing justice at the highest levels, these histories can be overly attached to crafting a triumphant narrative out of largely tragic events. Consequently, they discount the value of studying why and how social movements can fail to achieve constitutional change. (39)

The significance of the Dyer Bill drama does not hinge on whether it ended in triumph or tragedy. Periods scarred by failure have critically shaped which Americans fought for civil rights, the means they chose to do so, and the theories of structural constitutional law that informed their...