WEAK STATE AND RACIAL VIOLENCE

Weak state is a relative term that tends to be contrasted with a strong society or a strong state (Skocpol Reference Skocpol, Evans, Rueschemeyer and Skocpol1985). According to Joel Migdal (Reference Migdal1988), author of the landmark book on weak states, the relative strength of the state is measured by “the ability of state leaders to use the agencies of the state to get people in the society to do what they want them to do” (p. xiii). A weak state, then, is characterized by a “disjuncture between the state's rules of the game, as its leaders sought to establish the whole society as a single juridical whole and the actual operative dictates of behavior in society” (p. 261). This disjuncture is often characterized as operating against the intentions of the state.

Political historian William Novak (Reference Novak2008) notes the once prevailing view that the American state was weak:

This claim for statelessness has recently been refuted across various aspects of the American state (Dobbin and Sutton, Reference Dobbin and Sutton1998; Frymer Reference Frymer2003; Frymer Reference Frymer2004; Hacker Reference Hacker2002; Johnson Reference Johnson2007; King and Lieberman, Reference King and Lieberman2009a; King and Lieberman, Reference King, Lieberman, Jacobs and King2009b; King and Stears, Reference King, Stears, Jacobs and King2009; Lieberman Reference Lieberman2002; Novak Reference Novak2008; Skocpol Reference Skocpol, Evans, Rueschemeyer and Skocpol1985; Skowronek Reference Skowronek1982; Skrentny Reference Skrentny2006). Even though conventional accounts of the stateless nature of the American state have been widely discredited, it has nevertheless persisted in accounts regarding racial violence. At first blush, an analysis of the state's relationship to racial violence, especially lynching, seems to confirm conventional approaches that emphasize its weak capacity and legal fragmentation. The Tuskegee Institute documented 4629 victims of lynching between 1883 and 1966.Footnote ² Their findings report that Blacks made up 86% of those lynched in the South.Footnote ³ Most of these lynchings failed to elicit any formal investigation. As Dray (Reference Dray2002) writes, in the few instances which elicited formal investigations, the conclusion was oftentimes “death at the hands of persons unknown” (p. ix).

Easily obscured by the complexities of federalism, the national government is often portrayed as helpless to rein in the vicissitudes of lynch mobs. Many analysts have argued that the federal government was hindered in combating lynchings because it lacked the legal authority and institutional capacity (Gillette Reference Gillette1979; Raper Reference Raper1933;Wang Reference Wang1997). Generally, political authorities, particularly on the federal level, are considered to have played a minor role in the regulation, administration, and eventual decline of lynchings.Footnote ⁴ Although many political authorities expressed sympathy with lynchers, they made sure to never explicitly approve and/or endorse the practice of lynching. In certain cases, political authorities, particularly local law enforcement, were heavily involved—often by abstaining from enforcing the law, but sometimes by joining the lynch mobs. In most instances, however, it was uncivil forces that decided to take the law into their own hands (Ayers Reference Ayers1992; Sydnor Reference Sydnor1940; Tolnay and Beck, Reference Tolnay and Beck1995). These accounts presume that the state's failure to enforce the law was due to incapacity, rather than to a decision about where, when, and how to exercise its power.

The characterization of the American state as weak in regards to racial violence is illusory; recent research has focused on the federal government's collusion in the maintenance of racism. (Belknap Reference Belknap1987; Kaczorowski Reference Kaczorowski1985; Katznelson Reference Katznelson2005; King Reference King1995; King and Tuck, Reference King and Tuck2007; King et al., Reference King, Stears, Jacobs and King2009; Massey and Denton, Reference Massey and Denton1993; Patler Reference Patler2004; Weiss Reference Weiss1969).Footnote ⁵ But it is important to distinguish the various facets of racism. Take, for instance, segregation and racial violence. Segregation was explicitly and legally sanctioned; lynchings were not (Plessy v. Ferguson 1896). It is one thing to mandate separate schools and public facilities for Blacks; it is altogether something else to sanction the murder and torture of Blacks. As Federal Circuit Judge Halmer H. Emmons states in his 1875 Charge to Grand Jury-Civil Rights Act, “I have but small sympathy for the right of the negro to see … the ballet dance” but protection from pillage and murder was a “more precious and beneficent privilege” (Brandwein Reference Brandwein2011, p. 61). Unlike segregation that was mostly delegated to the respective states to regulate and was couched in liberal terms, the federal government never completely relinquished the authority to combat racial violence nor provided a coherent, consistent answer as to why it did not intervene.

Whereas segregation has been thoroughly examined, racial violence has not. Harry Scheiber's theory of federalism is an apt example. Scheiber (Reference Scheiber1980) categorizes federalism in five stages: 1) dual federalism from 1789 to 1861; 2) transitional centralization from 1861 to 1890; 3) accelerated centralization from 1890 to 1933; 4) cooperative federalism from the New Deal to World War II; and 5) creative federalism since the end of World War II. Scheiber is, however, quick to note an exception to this schematization: “A residue of dual federalism from the antebellum era was evident in the area of civil rights, as Southern blacks were left virtually [alone] against private coercion, state action, and often terrifying violence” (p. 680). Although Scheiber acknowledges the American state's mishandling of race, he does not attempt to make it cohere to his general schematization. This strategy of separating out race from his overall framework is not atypical. According to Desmond King and Robert Lieberman (Reference King, Lieberman, Jacobs and King2009b), “Many leading works of scholarship on core institutions of the American state overlook how race shaped their content and policy effects. This deficiency is one reason for singling out the racist dimension of the American state” (p. 314).

Part of the difficulty in ascertaining the federal government's compliance with racial violence is schematizing negligence. In comparing South African apartheid and Jim Crow segregation, political scientist Anthony Marx (Reference Marx1998) observed the distinctively American pattern of an “active” withdrawal:

Picking up on Marx's concept of acting by withdrawal, Desmond King and Stephen Tuck (Reference King and Tuck2007) specifically point out the “deliberate inaction” of Congress and the Republican Party:

To act by withdrawal can at times be obscured because it is nonaction.

As noted above, this nonaction was oftentimes mistakenly couched in terms of weakness. If the federal government had in fact relinquished to the states complete authority to combat racial violence, then it would have had to pass new legislation for the federal government to re-engage. But it had not. When the federal government wanted to combat racial violence, it simply resurrected old laws that were rarely used. Thus, the unwillingness of political actors to act has been mischaracterized as weakness when it in fact represents an explicit response by the state to the question of “whether one will have access to political and legal protection and recognition or will be excluded from it” (Ali Reference Ali2011, p. 5). Robert Dahl (Reference Dahl1956) eloquently describes how this exclusion is related to racial violence:

Dahl (Reference Dahl1956) purposefully describes it as a “policy of non-interference” (p. 41) in order to emphasize the explicit choice not to act. The active policy of nonenforcement was more of a political agreement mired in comity than a legal principle of incapacity. The federal government never abdicated its sovereign authority. As quoted in the records of the U.S. House Committee on the Judiciary (1956), U.S. Attorney Herbert Brownell declares, “whenever mob violence is involved, that certainly comes within the federal authority” (p. 23). President Dwight D. Eisenhower further expounds on Brownell's point:

But for the first half of the twentieth century, the federal government did in fact fail to act; it is in the concealment of that failure that sovereignty is found.

The weak state narrative was not simply an academic misnomer; it was also a rhetorical ploy used by political actors to obfuscate their responsibility and accountability.Footnote ⁶ Many expressed concerns regarding racial violence. From 1882 to 1968, nearly two hundred antilynching bills were introduced in Congress. Not one made it to a floor vote in the Senate. President Woodrow Wilson ([1918] Reference Wilson and Hart2002) begged the men and women of the United States “to make an end of this disgraceful evil [of lynching],” but to no avail (p. 271).Footnote ⁷ Concerns regarding racial violence sporadically existed throughout the country; the political will necessary for reengagement did not. Although it is beyond the scope of this article to examine the complexities of mustering the political will to engage in racial violence, what is important to note is that although some might have been sympathetic to combating racial violence, few were nonetheless willing to do what was politically necessary to effectuate reengagement. Individual antipathies were not enough to overcome the institutionally embedded nature of racism that constrained possibilities of change via ordinary legislation and/or political action.Footnote ⁸ Subsequently, many excused their ineffectiveness in legalese terms of incapacity.Footnote ⁹ By couching political inaction in terms of jurisprudential restrictions in a federalist system, political officials successfully mischaracterized what actually was a political arrangement made by politicians as a matter of states' rights that was to be resolved by the courts. Disentangling the political nature of federal inaction from the legal principle of federalism provides the conceptual pivot by which we can distinguish the (in)actions of sovereignty from actual challenges to that sovereignty. Collapsing the political into the legal provided a way for the federal government to evade responsibility without actually abdicating its authority. This places the law—namely the Civil Rights Act of 1866 and the Enforcement Act of 1870—as the independent variable and the political will to engage in federal rights enforcement as the dependent variable. In other words, in matters regarding racial violence, the law stayed constant; it was the political will to enforce the law that varied.Footnote ¹⁰

I will illustrate this subtle differentiation between being passively incapacitated and being deliberately inactive by resituating the American state's relationship to racial violence in wider political terms. Although many posit the Supreme Court as having impeded the federal government's ability to quell racial violence, after extensive research into three historical eras, I conclude that government inaction was due less to the disabling nature of legal prohibitions on state action than to the political will not to act. Primarily blaming the Court for government inaction not only mischaracterizes what actually happened but also relieves political authorities of their culpability. By resituating state inaction in more political terms, the weakness of the American state with regard to racial violence is more accurately characterized as a calculated decision of an active state choosing not to act.

PRESIDENT GRANT'S ADMINISTRATION: GOING FROM STRONG TO WEAK

When the federal government wanted to stop racial violence in the South, it could and did.Footnote ¹¹ Between 1870 and 1872, the American state was active and effective in curbing racial violence in the South (Foner Reference Foner1988; Kaczorowski Reference Kaczorowski1985; Swinney Reference Swinney1987; Trelease Reference Trelease1971). When the Department of Justice was first established in 1870, it was proactively committed to quelling racial violence. U.S. Attorney General Amos Akerman was firmly committed to extinguishing the Ku Klux Klan.Footnote ¹² On July 6, 1871, he issued a circular regarding the Enforcement Act of 1870, in which he stated that the statute “makes it your special duty to initiate proceedings against all violators of the act.”Footnote ¹³ This task was seen by many as impossible due to a host of reasons, including budgetary constraints,Footnote ¹⁴ difficulties in securing evidence (Foner Reference Foner1988), lack of a detective force,Footnote ¹⁵ local resistance,Footnote ¹⁶ fear of witnesses to testify,Footnote ¹⁷ corruption,Footnote ¹⁸ and the highly talented defense lawyers that many Southern defendants were able to obtain.Footnote ¹⁹ The Department of Justice under Akerman was nonetheless central to curbing violence in the South in general and taking down the Ku Klux Klan in particular. Prosecution of Klansmen began in earnest in Reference Akerman1871.Footnote ²⁰ In South Carolina, as reported in Trelease (Reference Trelease1971), 600 suspected Klansmen were arrested, leading to 390 indictments, as indicated in Kaczorowski (Reference Kaczorowski1985). As Davis (Reference Davis, Dunning and Fleming1914) writes, in Mississippi, 640 suspected Klansmen were arrested, leading to 200 indictments. In North Carolina, there were 763 indictments that resulted in twenty-four convictions and twenty-three guilty pleas.Footnote ²¹ Alabama brought 130 indictments against suspected Klansmen (Trelease Reference Trelease1971). In 1871, there were at least 190 criminal persecutions under the Enforcement Acts leading to at least 108 convictions.Footnote ²² In 1872, Gillette (Reference Gillette1979) reported 603 criminal prosecutions that led to 448 convictions.Footnote ²³

Some have interpreted these numbers as indicating the federal government's incapacity to adequately deal with the Klan, since the number of indictments per the number of arrests is relatively low (Bensel Reference Bensel1990; Gillette Reference Gillette1979). In the best-case scenario, the rate of indictments to arrests was barely one to two. For example, in Mississippi and South Carolina, 1240 arrests led to only 590 indictments. If one compares the number arrested to the number actually convicted, the rate is even lower. For example, Kaczorowski (Reference Kaczorowski1985) notes that in South Carolina, U.S. Attorney Daniel Corbin had a 33% conviction rate, 26% acquittal rate, and 41% nolle prosequi rate.Footnote ²⁴ For tried cases, Corbin's conviction rate dropped to 12%, and his acquittal rate skyrocketed to 88%. Because of this low rate of convictions, Akerman thought the Ku Klux Klan was “too much even for the United States to undertake to inflict adequate penalties through the courts” (Kaczorowski Reference Kaczorowski1985, p. 74).

Low acquittal and conviction rates, however, do not necessarily mean the federal government was unable to dismantle the Klan. For example, Brigadier General Alfred Terry's (Reference Terry1871) letter to the Secretary of War declared:

Legal historian Robert Kaczorowski (Reference Kaczorowski1985) confirms the effectiveness of Brigadier General Terry's strategy as set forth in this letter:

There was also the military to consider. Even though President Grant was reluctant to use the power granted to him by the Ku Klux Act of 1871 to suspend the writ of habeas corpus, he did dispatch federal troops to troubled areas in the South. Military historian James Sefton (Reference Sefton1967) notes:

The essential factor in breaking up the Klan thus was the federal government's resolve to declare war even though the war was waged rather inefficiently (Kaczorowski Reference Kaczorowski1985).

Throughout the South, there were reports that confirmed the federal government's success in curbing violence in general and stopping the Klan in particular. Legal historian Robert Kaczorowski chronicled the various reports: U.S. Attorney John Minnis reported that in Alabama the federal court “was demoralizing and carrying terror to these lawless K.K. Klans;” U.S. Attorney Daniel Corbin believed that in South Carolina “only the prosecution of the leaders [of the Ku Klux Klan] was necessary to restore peace and order to the state;” and federal circuit court judge Hugh Lennox Bond wrote that “we have broken up the Ku Klux in North Carolina (p. 77).” Allen Trelease (Reference Trelease1971), author of the preeminent book about the Ku Klux Klan, reports that in Florida, “violence virtually ended by the end of 1871,” while in Alabama “Klan violence ground almost to a halt” (p. 410). Major Merrill, who played a pivotal role in reducing the Klan in South Carolina, reported that “the testimony is unanimous—the result was total suppression of the Ku Klux Klan” (Swinney Reference Swinney1987, p. 235). In Tennessee, the birthplace of the Klan, Swinney found that “the years of 1870 to 1873 were relatively free of Klan-type outrages” (p. 286). Swinney even goes so far as to suggest that the enforcement acts were less vigorously prosecuted after 1874 because “the major objective which had occasioned their passage—the dissolution of the Ku Klux Klan—had been achieved” (p. 318). In a study of Grant's Southern policy, historian Edwin Woolley (Reference Woolley, Dunning and Fleming1964) writes:

Although the federal government's “war” against the Klan was conducted with limited resources and stopped short of doing complete justice to the past, these findings appear to indicate that it was nonetheless strong enough to dismantle the Ku Klux Klan.

Unfortunately, the political will to dismantle the Klan quickly diminished. In the 1874 midterm elections, Democrats gained ninety-four seats in the House, thereby giving them a 62% majority. Democrats also gained nine seats in the Senate. Republicans lost ninety-six seats in the House and one seat in the Senate. Democrats also won nineteen out of twenty-five gubernatorial races. Historian William Gillette (Reference Gillette1979) called the Republican defeat in 1874 “the greatest upset in national politics since 1854. It was the first catastrophe in the Republican Party's twenty-year history and inaugurated an extraordinary shift in power” (p. 246). The Tribune Almanac remarked that “the election is not merely a victory but a revolution” (Foner Reference Foner1988, p. 523). The Louisville Courier-Journal ran as its headline, “Busted. The Radical Machine Gone to Smash” (Gillette Reference Gillette1979, p. 248). Governor Ames of Mississippi perhaps summed it up the best: “[A] revolution has taken place—by force of arms—and a race are disfranchised—they are to be returned to a condition of serfdom—an era of second slavery” (Ames and Ames, Reference Ames and Ames1957, p. 216).

It was around this time that President Grant reversed his stance on quelling racial violence in the South. After suffering a barrage of criticisms for his decision to send in federal troops after the Colfax Massacre,Footnote ²⁵ President Ulysses S. Grant declared, “I am tired of this nonsense… This nursing of monstrosities has nearly exhausted the life of the party. I am done with them, and they will have to take care of themselves” (New York Herald, 1874). There is no inkling here that he was forced to acquiesce; rather it was a politically calculated choice made for the sake of the party to which he belonged. Grant subsequently forced Amos Akerman to resign as head of the Justice Department and appointed increasingly conservative attorneys general in his stead.Footnote ²⁶

It is important to note that the political will to stop racial violence in the South did not simply disappear; rather, it was bargained away. In the presidential election of 1876, there was a dispute over the electoral results between the Republican candidate Rutherford B. Hayes and Democratic candidate Samuel J. Tilden. In order to resolve the dispute, a deal was reached, commonly referred to as the Compromise of 1877. Hayes would become President in exchange for withdrawing all federal troops in the South, effectively “abandoning the cause of the Negro” (Woodward Reference Woodward1951, p. 8). What is otherwise known as the “Bargain of 1877” presumes that Hayes did not necessarily have to abandon the cause of stopping racial violence. How could he have bargained away a power he did not have? He used the threat of continuing federal intervention as a bargaining chip that the Democratic Party was all too willing to accept. The fact that the Republican Party used “abandoning the cause of the Negro” as a bargaining chip and the Democratic Party accepted this chip suggests not only that the American state could have continued to quell racial violence in the South, but also that the abandonment was more a result of political calculus than any inherent incapacity of the American state.Footnote ²⁷

Rather than simply showing that the American state was weak, a fine-grained analysis reveals that this unraveling toward weakness emerged from a position of strength. The American state was strong and then became weak through a process of bargaining amongst political actors rather than by a mere capitulation to societal actors or Supreme Court decisions.

FDR AND LBJ ADMINISTRATIONS: FROM WEAK TO STRONG

After Reconstruction, the federal government was seen as having essentially been stripped of its legal authority to quell racial violence in the South. Beginning with The Slaughter-House Cases in 1873 and followed up by United States v. Cruikshank (1876), United States v. Harris (1883), and the Civil Rights Cases (1883), many regarded the Supreme Court as having “instituted a judicial coup d'etat” by completely annulling newly passed legislation that provided for the federal rights enforcement for Blacks (Gressman Reference Gressman1951, p. 1337). Thus, in order for the American state to reengage in combating racial violence in the South, the American state would have to reconstitute the legal capacity to do so. This became an issue during the Franklin Roosevelt administration, when new legislation addressing racial violence came to the forefront. But in fact, reconstituting the legal capacity was unnecessary (Benedict Reference Benedict1978; Brandwein Reference Brandwein2007; Brandwein Reference Brandwein2011; Goldstein Reference Goldstein2007; Labbé and Lurie, Reference Labbé and Lurie2003; Ross Reference Ross2003). No new law was needed for the federal government to engage in stopping racial violence. Only the political will, an underlying alliance of political interests, was lacking.Footnote ²⁸ An analysis of antilynching politics under the Lyndon Johnson administration will illustrate this point. Moreover, it will show how the key issues were political—especially the political conditions under which the state was willing to engage in rights enforcement.Footnote ²⁹ This analysis moves between Supreme Court cases and political events in order to illuminate the limits of the classic variant of the weak state thesis that claims it was the lack of legal authority that constrained the state in quelling racial violence.

Although no new law was needed, efforts were nonetheless made to establish new legislation. Unfortunately, they were constantly stymied. In 1922, even though the Dyer antilynching bill passed the House, Southern Senators were able to prevent it from ever coming to a vote in the Senate (Ferrell Reference Ferrell1986; Zangrando Reference Zangrando1980). But it was not just the actions of Southerners that impeded legislation. In 1935, when the Wagner-Costigan antilynching bill was being filibustered by the Senate, President Franklin Delano Roosevelt told National Association for the Advancement of Colored People (NAACP) Secretary Walter White, “The Southerners by reason of the seniority rule in Congress are chairmen or occupy strategic places on most of the Senate and House committees. If I come out for the antilynching bill now, they will block every bill I ask Congress to pass to keep America from collapsing” (Elliff Reference Elliff1987, p. 68). Roosevelt only went as far as the southern Democrats would permit. Evidence of Roosevelt's dealings with the southern Democrats regarding New Deal legislation bore this out. When New Deal legislation was being proposed, Southern Democrats were inclined to support the redress of existing patterns of economic distribution in the direction of more equality, but that support came to a quick halt when issues regarding the labor market and race relations began to be conjoined. Cognizant of this, FDR was thus careful to construct legislation accordingly. FDR's reluctance to engage with reconstituting the American state's ability to stop racial violence was akin to the “Bargain of 1877” in that it did not depend on the capacity of the American state to engage as it hinged on the desire of political agents to do nothing. (Katznelson et al., Reference Katznelson, Geiger and Kryder1993; Lieberman Reference Lieberman1998).

Later events reveal that FDR did not need any new antilynching legislation to act; blaming Southern congressmen was simply an excuse for his inaction. This emphasis on the political nature of Roosevelt's nonengagement is perhaps best illustrated by the Supreme Court's reversal in 1966. The Court during Reconstruction was thought to have stripped the American state of its power, leaving the American state weak in terms of its capacity to combat racial violence in the South. Had that been the case, then the American state would have needed by some measure to have regained its capacity in the form of new legislation, such as the Dyer antilynching bill or the Wagner-Costigan bill.Footnote ³⁰ But this did not occur. Rather, starting in the mid-1960s, federal prosecutors simply decided to resurrect extant laws, namely the Civil Rights Act of 1866 and the Enforcement Act of 1870 (Rotnem Reference Rotnem1942; Screws v. United States 1945; United States v. Guest 1966; United States v. Price 1966). The fact that essential federal laws could somehow go in and out of fashion in the span of approximately seventy years is not indicative of any particular characteristic of American federalism per se; it reveals, rather, the choice of a sovereign state to enforce—or not to enforce—its own laws.

On May 21, 1940, the Department of Justice affirmed that it was possible to prosecute violent perpetrators with already existing legislation. There were two laws on the books that could be used: Sections 241 and 242 of Title 18 of the United States Code. Section 241 was taken verbatim from the Enforcement Act of 1870, which Amos Akerman used to prosecute the Klan; Section 242 was taken from the Civil Rights Act of 1866. A circular issued to United States Attorneys on May 21, 1940, contained a memo from Assistant Attorney General O. John Rogge stating that Section 241 was available for prosecution of private persons who conspired to violate a limited class of civil rights. This limited class of civil rights explicitly included a “federal right not to be lynched.” The memorandum went on to say:

According to the Justice Department, it was not the lack of legal capacity or authority that prevented the federal government from curbing racial violence. Rather, the government was constrained by the belief that federal intervention “may arouse antagonism”—an antagonism so firmly embedded politically and so feared that avoidance of it brought the federal policy of nonintervention to such a degree of consistency, stability, and rigidity that it achieved a lawlike status. The Justice Department's grafting the political onto the legal in this manner made reactivating the law appear to be a usurpation of the law. In so doing, it entrenched the active policy of nonenforcement that much more. Because federal rights enforcement had become mischaracterized as a legal puzzle in need of resolving instead of a political failure that needed to be rectified, reactivating federal rights enforcement became an act of extraordinary will. It necessitated a crisis of sorts, one not seen since Reconstruction.

Following the leadership of President Johnson, the Senate overcame the longest filibuster in its history—fifty-seven days—to pass the Civil Rights Act of 1964, with the explicit acknowledgment that federal troops would be used to quell racial violence in the South. On November 27, 1963, President Johnson stated in his first televised address as Chief Executive: “We have talked long enough in the country about equal rights. We have talked one hundred years or more. It is now time to write the next chapter—and to write it in the books of law” (p. 9). Johnson even warned his former mentor, Senator Richard Russell: “Dick, you've got to get out of my way. I'm going to run over you. I don't intend to cavil or compromise. I don't want to hurt you, but don't stand in my way” (Oreskes Reference Oreskes1989).Footnote ³² It was only after LBJ's stated intention “to write it in the books of law” that the Supreme Court did in effect return to the law.Footnote ³³ In what legal scholar Burt Neuborne (Reference Neuborne2011) has termed “a judicial version of Reconstruction” (p. 69), he characterizes the dramatic reversal of the Warren Court as understandable only as operating within “an implied emergency” (p. 95) wherein the Court's decisions “reflect pragmatic responses to the moral crises over race relations that gripped the nation in the aftermath of World War II” (p. 95).Footnote ³⁴

In United States v. Price (1966) and United States v. Guest (1966), the Supreme Court upheld federal rights enforcement in quelling racial violence. Even though the Court's decisions in these cases differed markedly from its previous decisions, they were nonetheless based on laws that had existed since Reconstruction. By refusing to grapple with these inconsistencies, the Court's decisions in Guest and Price are mired in questions that point to the political nature of federal rights enforcement for Blacks. Unfortunately, these questions were not even acknowledged, let alone answered. By turning a blind eye to what was going on beneath the surface, the Court appeared to be trying to maintain some degree of legal consistency within the politically inconsistent world of federal rights enforcement.

On June 21, 1964, three Mississippi law enforcement officials and fifteen private individuals conspired and murdered three civil rights workers—Michael Schwerner, James Chaney, and Andrew Goodman. The conspiracy involved releasing the victims from jail at night, intercepting, assaulting, and killing them, then disposing of their bodies. The U.S. District Court sustained the substantive counts against the three law enforcement officials but dismissed the indictments against the fifteen private individuals. The case was then appealed to the Supreme Court, where, in United States v. Price (1966), the Court reversed the dismissals against the fifteen private individuals. The key to the decision was what constituted actions “under color of law.” Supreme Court Justice Abe Fortas delivered the opinion of the Court, concluding that “to act under color of law does not require that the accused be an officer of the State. It was enough that he was a willful participant in joint activity with the State or its agents” (United States v. Price, 383 U.S. 787, 794). Fortas goes on to argue for a broad interpretation of section 241: “It is hardly conceivable that Congress intended 241 to apply only to a narrow and relatively unimportant category of rights” (United States v. Price, 383 U.S. 787, 806). Without delving into more recent applications and interpretations of 241, Fortas notes how “Section 241 was left essentially unchanged [from its original formulation] and neither in the 1874 revision nor in any subsequent re-enactment has there been the slightest indication of congressional intent to narrow or limit the original broad scope of 241” (United States v. Price, 383 U.S. 787, 803). This then raises a question: if section 241 was originally broad in scope and had gone unchanged through the years, then why had it been interpreted so narrowly for so long? Why had the Court finally acted against private individuals when it had failed to do so in previous cases? Unfortunately, the Court never addressed these questions in Price.

Price was a watershed moment, according to legal historian Derrick Bell (Reference Bell2008), because it “abandoned past doubts as to the constitutionality of section 241 and 242” (p. 380). There had been some cases, most notably United States v. Williams (1951), that cast some suspicion. In Williams, four members of the Supreme Court—Frankfurter, Minton, Jackson, and Black—took the position that rights associated with the Fourteenth Amendment were not within the purview of section 241. But this was the dissenting opinion in Williams, and could not be regarded as establishing a binding precedent. However, it was enough to raise doubts. Price quashed these doubts.

On July 3, 1964, Herbert Guest, Joseph Howard Sims, Cecil Williams Myers, and James Lackey shot and killed Lemuel Penn, a Black citizen. On September 4, an all-White jury acquitted two of the Klansmen, Joseph Howard Sims and Cecil Myers, of any wrongdoing. The case then went to District Court; six private individuals were indicted under 18 U.S.C. 241 for conspiring to deprive Penn of the free exercise and enjoyment of rights secured to him by the Constitution and laws of the United States. These indictments were dismissed. The Department of Justice subsequently appealed the decision and the case went to the Supreme Court. In United States v. Guest (1966), the Supreme Court reversed the District Court ruling.

Unraveling exactly why the Supreme Court reversed the District Court ruling is confusing partly because four opinions were given in this case. Justice Stewart delivered the opinion of the Court; Justice Clark, with Justices Black and Fortas joining, provided a concurring opinion; Justice Harlan provided an opinion that concurred with parts and dissented in parts; and Justice Brennan, with the Chief Justice and Justice Douglas joining, also provided an opinion that concurred with parts and dissented in other parts. Such a plurality is indicative not only of how contentious the case was, but also how unsettled the law was.

Although Justice Stewart's opinion is not the most succinct, by serving as the opinion of the Court, its function is not to clarify as much as it is to situate.Footnote ³⁵ Rather than treating this case as an anomaly or as one overturning previous decisions, Justice Stewart clearly viewed this decision as being in accordance with the Court's previous decisions. Historian Michal Belknap (Reference Belknap1987) makes this argument: “Rather than frontally assaulting the Court's past construction, they endeavored to square their argument with the traditional interpretation” (p. 176). From the outset of his opinion in United States v. Guest (1966), Stewart states the cases that might at first appear to be in direct contradiction to the Court's decision, including United States v. Cruikshank (1876), United States v. Harris (1883), and the Civil Rights Cases (1883) and declares that “it [the Court's view in these past cases] remains the Court's view today” (United States v. Guest, 383 U.S. 745, 755). Right from the outset, Justice Stewart is thus maintaining a degree of constitutional continuity for a case that seemingly overturns past decisions.

Stewart continues, “[T]his is not to say, however that the involvement of the State need be either exclusive or direct” (United States v. Guest, 383 U.S. 745, 755). Thus Stewart found a way to bypass these earlier decisions rather than confront them. He accomplished this by lowering the threshold for what constitutes state action. He found it enough for the participation of the state to be “peripheral, or its action … only one of several co-operative” (United States v. Guest, 383 U.S. 745, 755). But even this formulation was unnecessary since in Stewart's words, “this case requires no determination of the threshold level that state action must attain … allegation of state involvement is sufficient” (United States v. Guest, 383 U.S. 745, 755). Stewart goes on to refer to a minority opinion in Bell v. Maryland (1964) that stated that “a private businessman's invocation of state police and judicial action to carry out his own policy of racial discrimination was sufficient” (United States v. Guest, 383 U.S. 745, 755). Stewart's reference to the opinion of Justices Douglas and Goldberg in Bell is puzzling for two reasons: first, it implies a highly questionable and unique conception of state action that does not take into account state actors at all; and second, it is derived from a minority opinion with which three members of the Court strongly disagreed and on which three expressed no opinion. Law Professor Alfred Avins (Reference Avins1966) argues this point: “The United States Supreme Court has turned history inside out … the Guest case is so wide of the mark that it would be necessary to burn all the Congressional Globes in the nation to support it” (p. 381).

Stewart's opinion, which served as the opinion of the Court, was the most conservative, with the rest of the justices taking a more radical, broad interpretation of the federal government's authority with regard to rights enforcement. Unfortunately, none of the justices who provided a more radical reading of federal rights enforcement made an attempt to synthesize it with past court decisions. In fact, Justice Brennan—who wrote a separate opinion in which he concurred in part and dissented in part, and was joined by Chief Justice Warren and Justice Douglas—explicitly rejected one of the cases mentioned by Justice Stewart: “The majority of the Court today rejects the interpretation of [section] 5 [of the Fourteenth Amendment] given in the Civil Rights Cases” (United States v. Guest, 383 U.S. 745, 783). But if that were the case, then why have Justice Stewart provide the opinion of the Court wherein he clearly states that the stance taken in the Civil Rights Cases “remains the Court's view today” (United States v. Guest, 383 U.S. 745, 755)? Why did Brennan bury his statement on the last page? Is it possible that Brennan is right and that the majority of the Court did in fact reject the past Court decisions, but did not want this to be the official view of the Court? Might one of the reasons be that if it had rejected these precedents, then the Court would have had subsequently to explain why it had maintained such a narrow interpretation of Section 5 for approximately eighty years? Like the four dissenting opinions in Williams, the concurring opinions in Guest were duly noted but not necessarily to be taken as binding precedent. For whatever reason, it was important for the Court not to formally institute what it believed to be true. Formally, the Court in Guest, as articulated by Stewart, continued to be in lockstep with the Court's decisions in previous cases.

If in fact it was the case that Section 5 remained broad in nature this whole time, then there is a need to revisit the Court cases at the end of Reconstruction. After Reconstruction, when the federal government provided White Southerners the autonomy to manage racial affairs in the South, the Supreme Court showed through its decisions in cases including Slaughter-House Cases (1873), Cruikshank (1876), Harris (1883), and the Civil Rights Cases (1883), that it was going to rule negatively on issues relating to federal rights enforcement for Blacks in the South.Footnote ³⁶ But in light of the rulings in Price and Guest, the Court appeared never to have repudiated the federal government's authority to engage in combating racial violence. Rather, the Court apparently tended to dispose of cases such as Slaughter-House Cases, Cruikshank, Harris, and the Civil Rights Cases in a manner similar to the way in which the Court disposed of disenfranchisement challenges—“on some technical or subsidiary point, leaving the merits of the real issue untouched” (Mangum Reference Mangum1940, p. 400). In other words, even though the Court clearly signaled in these Reconstruction cases that it was not going to uphold claims of rights violations of Blacks in the South, it did so without ever making a substantive decision on Sections 241 and 242. Looking at these cases with the Court's decisions in Guest and Price, one must conclude that sections 241 and 242 were in effect placed into suspended animation; it was only when the political will to reengage with federal rights enforcement grew strong that the Court resuscitated Sections 241 and 242. In the parlance of the weak state thesis, the American state did not lose its capacity to combat racial violence; it simply chose not to engage.

These Supreme Court decisions illustrate that the federal government had never relinquished its sovereign authority. The federal government relieved itself of any culpability for what happened under its sovereign eye while simultaneously reserving to itself sovereign authority. The Supreme Court deliberately stopped short of absolving the federal government of total jurisdiction; if and when federal officials wanted to intervene, they could. Because the bounding was self-imposed, the federal government could not only unbind itself whenever it wanted, but it could also set the line of where its jurisdiction started and stopped.

Considering Congress during Reconstruction had passed sufficient laws to quell racial violence, it would seem to be the case that presidential leadership—ranging from Grant's vacillation to Roosevelt's acquiescence and Johnson's steadfastness—was the primary determinant for the reactivation of federal rights enforcement for Blacks. According to political philosopher and legal jurist Carl Schmitt, the onus on presidential leadership is appropriate considering the exceptional nature of federal rights enforcement for Blacks. Schmitt (Reference Schmitt1985) writes, “Sovereign is he who decides the exception” (p. 5). In this case, it is the president, whose duties as defined in Article II, Section 3 of the U.S. Constitution (1788) include taking “care that the laws be faithfully executed,” who decides when the exception of federal rights enforcement for Blacks is activated.Footnote ³⁷

This is not meant to suggest that racial violence was rare. The quotidian nature of racial violence was anything but exceptional. What was exceptional however was when that racial violence transcended its own banality and was elevated to the level of crisis. Attorney General Amos Akerman understood this. Akerman (Reference Akerman1871) considered that the actions of the Klan “amounted to war, and cannot be effectually crushed on any other theory.” Akerman (Reference Akerman1869) believed that “unless the people become used to the exercise of these powers now, while the national spirit is still warm with the glow of the late war … the ‘state rights’ spirit may grow troublesome again.” So, too, did the Civil Rights activists of the 1960s understand. Historian Clayborne Carson (Reference Carson1981) states that one of the significant legacies of the freedom rides was their ability to “provoke a crisis that would attract international publicity and compel federal intervention” and instill in the participants “a moralistic sense of personal commitment that made them intolerant of political expediency” (p. 37). Legal historian Michael Klarman (Reference Klarman2004) also noted that:

Whether it was taking advantage of the crisis that had befallen the nation—as was the case following the Civil War—or creating a crisis that the nation needed to confront—as in the case of the Civil Rights Movement—each surmised the importance of a crisis to impress upon the president as sovereign authority that the exception of federal protection for Blacks was in fact needed.Footnote ³⁸

It was the sense of a crisis spurred on by the Civil Rights Movement and advanced by President Johnson that allowed the Supreme Court to “push the reset button” (Neuborne Reference Neuborne2011, p. 82). During this tumultuous period, Justices voiced concerns about “issuing unenforceable orders” and how they might “bring the court into contempt and the judicial process into discredit” (Klarman Reference Klarman2004, p. 310). They were also nevertheless cognizant, according to legal historian Michael Klarman (Reference Klarman2004), that there was a “conversion of an emerging national consensus into a constitutional command” (p. 310).Footnote ³⁹ When the Johnson administration forced Archibald Cox to step down as solicitor general and replaced him with Thurgood Marshall to argue the government's case in Price and Guest—an affirmation that when the “law of the land” was violated, “appropriate action” would follow—it was abundantly clear that the White House wanted to reactivate federal rights enforcement (White Reference White1965). In a 1966 memorandum to his colleagues regarding the Guest case, Justice Brennan made note of the “urgent needs of the times.”Footnote ⁴⁰ It was this context which allowed the Court to render a decision that even sympathetic analysts have considered “nothing short of revolutionary” (Belknap Reference Belknap1982, p. 468).