Ask a Scholar – U.S. v. Cruikshank

Robert Heidt

Dear Ask a Scholar,

Please explain how Reconstruction-era Supreme Court decisions such as U.S. v. Cruikshank may have adversely affected African Americans.

Answered by Robert Heidt, Professor of Law and Harry T. Ice Faculty Fellow at the Maurer School of Law, Indiana University at Bloomington. Professor Heidt received both his undergraduate and J.D. degrees from the University of Wisconsin, Madison and worked as a trial attorney for the Antitrust Division of the United States Department of Justice prior to commencing his academic career. He is also president of the Indiana Association of Scholars, the NAS affiliate for that state.

        For at least a half century after the civil war (and to a surprising extent still today), the US Supreme Court continued its previous view that private persons needed to look to state law rather than federal law when injured by other private persons. U.S. v. Cruikshank illustrates this point. In 1873, a white mob in Louisiana attacked several blacks after a disputed election for governor. People on both sides were injured. The blacks sued their white assailants in federal court under the Enforcement Act of 1870 which the reconstruction Congress had recently passed. Of course this was a civil rather than criminal suit, and the plaintiffs recovered in the federal district court (the trial court in the federal system). Although the language of the Enforcement Act was ambiguous enough to have allowed the Supreme Court to uphold the plaintiff's recovery, the High Court reversed.

        The Court’s opinion emphasized that because the defendants were private individuals rather than state actors, the plaintiffs needed to sue them under state law – Louisiana, in this case. This was not a promising option for blacks at that time in Louisiana, and they sensibly never pursued it. The Court held the Enforcement Act of 1870, which had been passed to supplement the 15th Amendment (giving all citizens the right to vote), only allowed private persons to sue the State or to sue people operating under color of state law (meaning state officials). Hence, the blacks were thrown out of court and given no remedy whatsoever.   Even today, when blacks routinely and successfully sue whites privately under state statutes and state common law tort rules, they nevertheless have difficulty maintaining an action against such defendants under federal law. 

        The Court went on to say something not decisive to the outcome in Cruikshank but very important for the next 90 years, namely, that the first and second constitutional amendments constrained only the federal government and did not constrain any state government. Hence, Louisiana could jail people for their speech or possession of guns. The Supreme Court did not overrule this holding as to the First Amendment until 1966 in U.S. v. Price and U.S. v. Guest. The Court has still not clearly overturned Cruikshank as it bears on the Second Amendment. Thus those supporting anti-gun laws at the State level insist Cruikshank should remain good law   

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