Cruikshank, United States v. 92 U.S. 542 (1876)

AuthorLeonard W. Levy

Page 733

Cruikshank paralyzed the federal government's attempt to protect black citizens by punishing violators of their CIVIL RIGHTS and, in effect, shaped the Constitution to the advantage of the Ku Klux Klan. The case arose out of a federal prosecution of nightriders responsible for the Colfax Massacre of 1873 in Grant Parish, Louisiana. Several hundred armed whites besieged a courthouse where hundreds of blacks were holding a public assembly; the attackers burned down the building and murdered about 100 people. The United States tried Cruikshank and others involved in the massacre and convicted three for violating section six of the FORCE ACT OF 1870. That act, which survives as section 241 of Title 18 of the United States Code, is a general conspiracy statute making it a federal crime, then punishable by a $5,000 fine and up to ten years in prison, for two or more persons to conspire to injure or intimidate any citizen with the intent of hindering his free exercise of any right or privilege guaranteed him by the Constitution or laws of the United States.

In a unanimous opinion by Chief Justice MORRISON R. WAITE, the Court ignored the statute and focused on the INDICTMENT to ascertain whether the rights Cruikshank and others interfered with were granted or secured by the United States. Reasserting the theory of dual CITIZENSHIP advanced in the SLAUGHTERHOUSE CASES (1873), Waite concluded that the United States cannot grant or secure rights not under its JURISDICTION. Examining in turn each right named in the indictment as having been deprived, Waite found that they were all "left under the protection of the States." None was a federal right. The right to peaceably assemble predated the Constitution and remained "subject to state jurisdiction." The United States could neither infringe it nor protect it, for it was not an attribute of United States citizenship. So too the right to bear arms. The right to be secure in one's person, life, and liberty was protected by the FOURTEENTH AMENDMENT against state deprivation, but for protection of that right, sovereignty "rests alone with the States." The amendment, said Waite, "adds nothing to the rights of one citizen as against another." Thus the violence here...

To continue reading

Request your trial