In Liberalizing Lynching, political scientist Daniel Kato takes a fresh approach to answer a vexing question: why, during the lynching era from the 1880s through the 1950s, did the federal government not intervene to prosecute lynch mobs or to protect the lives of African American citizens? Scholars have tended to presume that lynching operated outside the scope of the federal government. That is, due to the sovereignty of individual states within a federalist structure, the U.S. government did not have the constitutional authority to act. Or, alternatively, scholars have argued that lynching, like segregation, was a federally sanctioned practice; the government did not intervene because, ultimately, it supported mob rule. Kato offers a more nuanced explanation, arguing that lynchings were committed “under the purview of the federal government,” but without its explicit sanction (2). In other words, the government had the legal capacity to curb lynching, but through a series of politically calculated judgments, chose not to.

To make this case, Kato relies upon layers of legal and political theory, as well as close readings of various Supreme Court rulings from the 1873 Slaughterhouse Cases to U.S. v. Price in 1966. In particular, he deploys the concept of “constitutional anarchy,” a modified version of legal theorist Ernst Fraenkel's idea of a dual state. In a dual state, the government limits its own power, leaving “anomalous zones” that are not subject to the rule of law. In the United States, these anomalous zones were racialized spaces (117). Constitutional anarchy explains how the lawlessness of lynch mobs was able to go unchecked within a liberal democracy.

The crux of Kato's argument rests on the events of Reconstruction, when, between 1870 and 1872, the federal government did successfully intervene to curb lawlessness and protect the lives of black citizens. Indeed, he devotes two-thirds of the book to analyzing the politics of Reconstruction and the court rulings that allowed for an activist federal state. The government had the legal capacity to act by declaring the postwar turmoil in the South a national emergency. The Republican-led Congress expanded the scope of the federal government through the Civil Rights Act of 1866 and the Fourteenth Amendment and through establishing the Department of Justice in 1870. It also expanded the jurisdictional scope of federal courts, effectively using the federal judiciary to supersede states' sovereignty in order to defend African American rights and advance the goals of Reconstruction. After the 1874 elections, however, the Republican Party was politically weakened. In the face of Democratic gains in the Senate and a new House majority, President Grant reversed course for partisan reasons—to protect the future of the GOP. Thus, Reconstruction did not fail because the federal government was weak, but because it chose to become weak.

Tragically, lynching in the late nineteenth century had become normalized, so that the thousands of African American deaths by the hands of white mobs were no longer considered an emergency that demanded federal action. Moreover, lynchings were no longer deemed political acts, or a partisan form of violence, that also warranted federal intervention. Instead, Kato argues, lynching underwent a discursive shift in which mob action was deemed an apolitical reaction to crime, which allowed the federal government to step aside.

There were subsequent attempts, through both the Congress and the courts, to curb lynching, especially with the concerted, and failed, push for federal anti-lynching legislation in the 1920s and 1930s, but these mostly targeted state and local governments. There were no substantive efforts to hold private individuals responsible, under federal law, for the lynchings of African Americans until the 1960s. Only when the civil rights movement created another crisis—a second Reconstruction—was the Supreme Court prompted, in U.S. v. Price and U.S. v Guest, to rule in favor of prosecuting citizens who had violated the Fourteenth Amendment rights of other citizens. No new laws were necessary; the Court simply changed its mind. The judiciary and the political branches, Kato argues, worked interdependently. The courts reacted to the political climate, accommodating federal inaction when there was a lack of political will and allowing for it when the public demanded it.

Kato's point that the federal government could have intervened even without the passage of anti-lynching legislation is an important one. But his explanation of why it did not act—that otherwise sympathetic political leaders capitulated to public sentiment or acted out of political pragmatism, that the judiciary responded to the politics of the time—is not as surprising, nor is this argument as novel as he claims. Its strength lies in the legal and political analysis Kato uses to support it. Potentially more compelling is the thesis alluded to in the title of the book. Kato posits that lynchings did not represent an “aberration” of American liberalism; rather, they “constitute the very basis by which American liberalism operates” (14). Constitutional anarchy did not simply allow for lynch mobs to act with impunity, but liberalism and racial violence, Kato claims, worked in unison. Unfortunately, this claim is never explicitly or convincingly developed. It is one thing to say that liberalism allowed for illiberal spaces; it is quite another to argue that liberalism depended on these “anomalous zones,” particularly as elsewhere Kato suggests that the liberal state expanded in the United States through federal efforts to protect African American rights.

This short book is a revised dissertation and still bears that imprint. Nevertheless, Kato has offered an intelligent and thorough explication of the legal basis through which the federal government could have intervened to stop lynching and why it did not.