Kenneth Mack | The 14th amendment: its radical past (and future?)
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Kenneth Mack | The 14th amendment: its radical past (and future?)


MARK TUSHNET: I
want to welcome you to the final lecture
in the series from this semester on
Diversity in US Legal History. Before I turn the program
over to Professor Mack, I do want to mention
or confirm something that I mentioned at the
prior session, which is that there will be a
successor series of lectures next semester. That title is going to
be I think something very close to
Issues of Diversity and Social Justice in
the first year courses. And there will be a series
of lectures starting on February 2nd on sort
of week by week, one of basic first
year courses and how issues of diversity
and social justice could be introduced to that. Just a note for anybody
who’s interested, there’ll be an
associated seminar in which the sort of writing
project for each student will be to develop a unit on
some first year subject matter and figure out how
to introduce issues of diversity and social justice
into teaching consideration. I have no idea how
you would do that. But a student would
do it or Holy Trinity in leg reg, holy trinity
and issues of diversity and social justice. That’s actually pretty
straightforward. In any event, there’ll
be an announcement about the seminar and about the
lecture series as time goes on. OK, so the final lecture
is by Professor Ken Mack, who’s going to talk about
the radical past and perhaps future of the 14th Amendment. KEN MACK: OK, first,
the volume OK? All right, first I’d
like to thank Dean Martha Minow for organizing
this lecture series, a much needed thing
in our difficult times we’re in right now. I’d like to thank Teresa
Ellis for her help in organizing it as
well and of course I’d like to thank my colleague
Mark Tushnet, the distinguished legal historian, for
helping put it together. Today I’m going to talk about
what I call the radical past and I don’t know about
future, but certainly the radical past of
the 14th Amendment and what I’m going
to try to do is to recover a different
tradition of the 14th Amendment from the one that we learned in
constitutional law, one that’s much more difficult
to accommodate, both within our
constitutional struggle and within our racial politics. And I’m going to just to kind
of put my cards on the table, I’m going to do a lot of
history because I’m a historian. That’s kind of what I do. But I also think
that history is very relevant for our present times
and just so you kind of know where it’s heading, we tend
to think of the 14th Amendment as involving things like school
segregation, marriage equality, for those of you who are
really into con laws, things like incorporation
and fundamental rights, things that my colleague Mark
knows much better than I do. But you know, I’d
actually like to recover kind of a different tradition
than the one that we learn in con law, one that has
been there from the beginning but that we don’t
learn much about. So I’m going to
talk about it today. Now first just to kind of get
some things out of the way, our traditional
interpretation of where the 14th Amendment came from. Now I did have a slide with the
text of the amendment and all that but I’m going
to skip that I’m going to assume that you all,
being mostly law students know what the 14th Amendment is
and kind of maybe what’s in it, our traditional narrative
of the origins of the amendment framed in 1868 by
Congress, ratified by the states between 1866
and 1868 goes like this. That after the Civil War you’ve
got almost 4 million freed slaves in the American South. You have a society in which
was actually a slave society, and all of a sudden
these folks are free. And the question is, what
do you do about them? We have a war that’s
just been fought, the bloodiest war
in American history. And we have the former
Confederate states which are being
perhaps reintegrated into the United States. Well you know,
emancipation has happened. So the legislatures
have to decide what they want to do about the freedmen. That was the term for the
freed African American men and women in the South. They have to decide what they’re
going to do about the freedmen. And the first thing
that they do, starting with Mississippi in late
1865 is exact things called the Black Codes. The Black Codes were statutes
to define the basic rights and duties of let’s say
citizens of Mississippi or citizens of Alabama. And what they did is they
defined contract and property and basic rights
for freed slaves but they defined them racially. There were a set of
kind of white rights and there were a
set of black rights, and by statute they
were defined separately. So traditionally, when we
think about the narrative of the 14th Amendment,
where did it come from? We start with the Black Codes. And in response, Republican
members of Congress were not particularly
happy with this. White Northerners were not
really happy with this. In response, Congress
passed something called the Civil
Rights Act of 1866, which is our first
federal civil rights law. We know it today, portions
of it are codified in 42 USC Section 1981, 1982, and 1983. Those of you who’ve been
in my property class know section 1981 and 1982. They were on the exam. These are two of our basic,
some of our basic civil rights statutes. They come from the 1866 Act. And our operative term is
that the statute defines a set of basic
rights of citizens and they have to
be the same rights as are enjoyed by
white citizens, so that they overturned
the Black Codes. You can’t have a set of
contract and property rights for whites and a different
set for African Americans. And Congress had some doubts
about whether the 66th Act was constitutional. So what Congress did is it
passed the 14th Amendment, which contains the clauses and
phrases that are familiar to us due process, equal
protection, and the like. And then later on Congress
reenacted the 1866 Act to make sure that it
was constitutional, promulgated under its
14th Amendment power. So that’s our traditional
narrative of how we got to the 14th Amendment. And it’s a hopeful
narrative, right? It’s a narrative that brings
us up to today to things that many of us in this
room think of as advances. It’s a progressive
narrative, right? It’s a narrative that
starts from things that are not so good and ends
with things that are good. Our traditional narrative
of the 14th Amendment was, well you know, there’s
been this persistent question about what the 14th
Amendment means. The US Supreme Court first
took up that question in a case called The Slaughterhouse
Cases, which you’ll find in lots of or case books. And its initial answer was,
it meant very little, very few rights had been federalized
by these general phrases like privileges and immunities. And indeed, famously in
Plessy versus Ferguson, again read the 14th
Amendment narrowly. A challenge to a
railroad segregation statue to Louisiana, it did
not violate the 14th Amendment. Again very few rights
have been nationalized by the 14th Amendment. But then we get to
our more hopeful parts of the narrative, Brown versus
Board of Education of course. And Obergefell versus
Hodges, marriage equality. And in the pictures of
course, James Obergefell, sitting next to my
law school classmate and my former
co-clerk, James Essex. You know if I’d
done what James did you know I could sort of sit
down and think that, OK, I made the world a better place. But this is a hopeful
narrative right? We move from something that
is less hopeful to something that is more hopeful. It’s a narrative of a
progressive interpretation of the 14th Amendment,
meaning progress. It’s a narrative of the United
States getting better over time through the means of the 14th
Amendment and other means as well. So you know I’d like to start
with a different narrative as I said, a more
radical and difficult to accommodate narrative of
what the 14th Amendment meant and means. In my narrative, I actually
want to start with violence. In 1865 and 1866 when the 14th
Amendment was first proposed, framed, and sent to the states,
what most Americans observed was violence. It was a violent era, violent
in many, many different ways. We’ve got two pictures here. This is a famous engraving
from Harper’s Magazine about the Ku Klux Klan. The one on the left is actually
a black militia in Alabama. Reconstruction was
a very violent time. As we’ll find, there were lots
of different responses trying to invoke federal jurisdiction. Another response was to
try to invoke, try to form, militias to protect
basic rights. The violent origins of the
14th Amendment starting in 1865 and 1866 would go this way. The boundaries between wartime
and peacetime were porous. The bloodiest war
in American history had in fact, in many ways
spilled over into peacetime. Difficult challenges to
civil liberties abounded. And in fact, as we;ll
find, there seemed to be no end to the wartime violence. The other thing
that had happened was Abraham Lincoln
had been assassinated. And the person who replaced
him was his vice president, Andrew Johnson. Andrew Johnson was someone
who no one expected to be president of the United
States, but suddenly he was. Johnson was somebody
who people thought did not have the temperament
to be President of the United States, and suddenly he was. But Andrew Johnson
also was the person who was going to be in
charge of safeguarding minority rights for
people at the margins of American society. And there was deep, deep
skepticism that he would. The third context of
course is violence. State violence against
freedmen, widespread murders, burnings of schools, homes. And these are the kinds
of things that Americans were thinking about when
they framed and ratified the 14th Amendment. And one of the most
difficult and I would say radical challenges
of the 14th Amendment was, what and how does it
apply to state violence? For instance, I don’t know,
in the very same week, that Congress introduced the
provision, the language that would become section one
of the 14th Amendment, this was happening the
Memphis riot of 1866. What was the Memphis riot of
1866 that occurred from May 1st to May 3rd of that
year and involved confrontations between African
Americans and police officers. There had been a long tradition
of complaints about police brutality in Memphis. And Memphis, as
I said, the story of armed African Americans is
kind of all over this story. In Memphis there
also happen to be a whole bunch of
black Union troops who were being
demobilized in the city. And there were a series
of confrontations between the black troops
and white police officers. And after this these
confrontations, mobs of local whites formed,
about a quarter of whom were local police
officers and firefighters and proceeded to murder
46 local African Americans and burned 89 of their homes. Amid public outrage,
the Attorney General of the United States
concluded that there was no basis for federal
jurisdiction over the crimes and state authorities
declined to act. The following month there was
the New Orleans riot of 1866. As you can see, a theme emerges,
in which a white supremacist mob attacked a
political gathering where black
residents were trying to organize in advance
of a State Constitutional Convention. And the mob killed
more than 35 of them. And of course, the
years of 1865 to 1866 were the years in
which the Ku Klux Klan was formed although
it would take about a year or two for it to embark upon
the violence for which it is most well known. So this is the context in
which the 14th Amendment was being framed and
ratified by Americans. But for the 14th Amendment
to be applicable to this kind of a thing was going to
require a radical move I will contend,
radical in the sense that all of these things
I’ve just described are ordinary state law
crimes, murder, arson. These are state law crimes. And what gives the
federal government the power to act in response
to the state law crimes, or does the 14th Amendment
give the federal government the power to act in response
to state law crimes? This is a theme that we
still are struggling with. Many of you know the case of
Morrison versus United States from the year 2000 when the
Supreme Court invalidated portions of the 1994
Violence Against Women Act under the Commerce Clause. There is a continuing
dialogue about federal power to criminalize things are local. And if in fact the 14th
Amendment applied to things like this, it would
require a radical revision of the constitutional
structure of the United States. But second I think
and more problematic, what was radical about trying
to apply the 14th Amendment to this kind of stuff was that
it would require a revision of racial politics in America. In fact, there had been a long
tradition of localized violence against African Americans. There had been a series of
anti-black riots in the north, including one in my hometown
of Harrisburg, Pennsylvania. The first Black Codes
were not the ones that Mississippi and Alabama,
enacted in 1865 and 1866. They were enacted by
before the Civil War by states like Illinois
and Wisconsin and Indiana, to define local black
rights separately from local white
rights and to define a lesser degree of protection
by local law for African Americans. So there had been
a long tradition of localized actually racial
violence in the United States. There hadn’t been
that much of a remedy. And the 14th
Amendment potentially might have provided one. Or at least these are the
things that Americans were debating between 1866 and 1868. They were outraged at
things like the New Orleans riot of 1866. They framed and ratified
the 14th Amendment in the context of that outrage. But then there was
this question of whether this radical
interpretation of the amendment would hold. Well as I said, very,
very controversial thing. African Americans in
the period 1865 and 1866 began to demand national
rights protected by the national government. This is John Mercer Langston. He’s a lawyer, one of the
first African American lawyers in the country. This is what he said in 1864. He said, the Negro demands
absolute legal equality, demanding a series of
rights, the same rights that white citizens held. And what’s implicit
in this paragraph is demanding this of
the national government. And then in a year or two,
added to the list of demands would be security of
persons or property. Now as the 14th Amendment
was being debated, members of Congress understood
that there was this big issue. What did the 14th Amendment
do about local institutions, local institutions
that everybody understood in the North did
not protect African Americans? The right to vote
we know, as we know, we keep knowing, over
and over and over again is quite localized, controlled
locally traditionally, in American society. After the Civil
War, you know there was a referendum on the right to
vote in several Northern states and it did not pass. New Jersey for instance,
a state I lived in for quite a long time
ratified the 14th Amendment and then they unratified it. Yeah, they unratified it. The Jersey refused to
ratify the 15th amendment until the middle of the 1870s. There was a long tradition of
local non-protection of African Americans in the North
so Senator Lyman Trumbull says this, I’m sorry, this isn’t
a debate about the Civil Rights Act of 1866. He says, this bill
in no way interferes with the municipal regulations
of any state which protects all alike and the rights of
persons and property, saying that this
doesn’t interfere with local institutions. It would have no operation
Massachusetts, New York, Illinois, or most of
the states of the union. It only is operative in the
states where local institutions refuse explicitly to
protect African Americans’ basic citizenship rights. He’s trying to reassure
white Northerners that their own
institutions are not going to come under attack
through the 14th Amendment. Because of course, this is what
the 14th Amendment potentially does and this would be
a radical interpretation of the 14th Amendment. This is in fact what
John Mercer Langston is sort of asking white
Americans to do and it’s quite controversial. OK, so this phrase he
uses, municipal regulations or municipal law, it’s
actually kind of all over. If you read Plessy versus
Ferguson, it’s in it. If you read the
civil rights cases it’s in it, all these cases
where the Supreme Court has to interpret the reach
of the 14th Amendment after the Civil War. All these cases involved
how much the 14th Amendment deferred to local institutions. OK, so everybody understood
that these were the stakes after the Civil War, right? That there’s rampant violence
against African Americans in the South, that
violence in fact helps prompt the passage
of the Civil Rights Act of 1866 and the 14th Amendment. And the question
is, was there power, was their federal power
to do something about it? And if there were, that would
be a quadratic answer to what did the 14th Amendment do. Well you know the Supreme
Court takes a few years but it finally gets into the
act of deciding this question. And it decides it in a case
called Blyew versus the United States in 1872. Now in most con law
case books, if you find the citation for the
first major interpretation of the 14th Amendment by the
United States Supreme Court, you don’t find this case. You find a case called the
Slaughterhouse Cases, which is a year later in fact this was
the case where the Court quite resolutely indicated
what it was going to do about the radical
potential lodged in the Civil Rights Act of
1866 in the 14th Amendment. The facts were horrific. After attending a Democratic
Party rally in Kentucky. In the 19th century
the Democratic Party was the party of
white supremacy. After attending a Democratic
Party rally in Kentucky, two white men went to the
home of a black family proceed to hack most of
them to death with an axe. Two of the children escaped, a
10-year-old boy named Richard who crawled to a
neighbor’s house and was able to give testimony,
which was written down and which he signed
and then he died. Actually I’m sorry there
were three children. Richard signed a statement
and then he died. There’s a 10-year-old
girl who hid under a bed so she was not hacked to death. And there was a six-year-old
girl who was hacked but who survived and was
permanently disfigured. These were the
facts of the case. There was a prosecution
brought against the two people who did this. But there was not a prosecution
brought under state law. And you might ask why. Well two reasons,
one, this was a series of incidents in which
everybody understood that local institutions
did not protect African Americans from violence. In fact local
institutions were often complicit in the violence
against African Americans. And in Kentucky,
the traditional rule about testimony in the South
was that African Americans could not testify
against whites in court. It’s after the Civil War. Kentucky retains the old rule. So that if the case goes
to trial in the state court Kentucky, our only two
surviving witnesses who are able to
give statements are Richard, who delivered the
signed statement before he died and the 10-year-old
girl, neither of whom will be allowed to testify
against whites in state court. So they bring a
federal criminal case. But you might ask, how can he
bring a federal criminal case? This is murder. It’s a state law crime. Well, it turns out that they can
bring a federal criminal case because of what the Civil
Rights Act of 1866 looks like. Civil Rights Act of 1866
has a couple of provisions that might interest us. The one that today is codified
in section 1981 and 1982 talks about contract and
property rights. That’s the one that
we mostly focus on. But it also had
this language here. Citizens shall
have the same right to full and equal benefit
of all laws and proceedings for the security of
person and property as is enjoyed by white citizens. Now that phrase was deliberately
put there because of what was happening in 1865 and 1866. There was not security
of persons and property for African Americans
in the South. And the Civil Rights Act of
1866 had a jurisdictional clause which said, district courts in
the United States shall have cognizance of all causes civil
and criminal affecting persons who are denied or
cannot enforce any of the rights secured to them by
the first section of this Act. So if your case affects persons
whose rights cannot be secured by the first section, then the
district courts have direct jurisdiction over your case. Of course the African
American family could not be protected in
the state courts because of Kentucky’s testimonial
rule and because, you know, there was limited
willingness to do it. Therefore, there could be a
prosecution brought directly in the federal district court. Well, this was the
case and this is how they got into federal court. And in fact, the two men
were convicted and sentenced to death. But the state of
Kentucky decided that it wanted to challenge the
constitutionality of the Civil Rights Act of 1866. It did and it got its case all
the way to the u.s. Supreme Court where it was called
Blyew versus the United States. and this is what the
Supreme Court decided. It decided this, that you
had to be an affected person to bring a case, to have
your rights protected under the Civil Rights Act
of 1866 under Section three, you had to be an affected
person or affecting persons. And the US Supreme Court
said this, well there’s a whole bunch of affected
persons, but they’re all dead. You know it’s a
prosecution for murder. Murdered people are by
definition not present in court because they’re dead, so you
can’t vindicate their rights through this statute. I say to my students, these
are the reasons people kind of hate lawyers. We work with language. And they’re working
with the language. And this is the construction. But what they’re
really saying is, they’re answering this much
more radical question that I put on the table earlier. They are asking this question
of how much of the protection of basic citizenship
rights of racial minorities are protected under
the 14th Amendment. And they’re saying very little. So one year before
the Supreme Court decided the
Slaughterhouse Cases, they’re basically telling you
where they’re going to go. They don’t want these
cases in federal court and they don’t want the basic
protections of citizenship to be accorded African
Americans through the US constitution and federal law. They want it to be state law. And in state courts,
everybody understands that to leave this
to local institution is to leave African Americans
subject to state violence. OK so I could basically do, and
I’m just going to kind of just do a few snapshots,
because I want to leave some time for questions. I could basically do the rest
of the 14th amendment’s history, the reconstruction of the
beginnings of the civil rights movement, basically through
cases of state violence. And the question over
and over and over again of how much is this
violence is cognizable under the 14th Amendment? So I’m just going to
do a few snapshots and then we’re going
to do some Q&A. Here’s the first
one, Colfax massacre, yet another massacre,
1873, Easter Sunday 1873, Grant Parish Louisiana. In the aftermath of a disputed
election a group of whites murdered more than 120
black men who had gathered in the Grant Parish Courthouse. State prosecution was not
feasible because you know, you were in a regime of
rampant violence in Louisiana. So several defendants were
brought to trial in 1874 in New Orleans. They were brought to trial under
two other federal statutes. After the Congress passed
the Civil Rights Act of 1866, it also passed something called
the Enforcement Act and the Ku Klux Klan Act in 1870
and 1871, both of which were attempts to try to get
cases into federal court and protect basic citizenship
rights through federal law. So a number of
people were indicted for the Colfax massacre under
the 1870 Enforcement Act. And what the federal
court in Louisiana held and what the US Supreme
Court eventually held when this case
reached the Supreme Court under the name of
Cruikshank versus United States was that in the
indictments were invalid. They were invalid
for two reasons. A lot of the stuff that
happened in Grant Parish was state law murder. So 14th Amendment,
Supreme Court held gave no power to assert federal
jurisdiction over things that were state law crimes. State violence against
African Americans once again, had to be
adjudicated through the state courts, which everybody
knew in Louisiana we’re not going to
protect African Americans. It also held that
you had to allege kind of a racial
motivation for the murders. And the indictments didn’t. Technically the guys could have
been reindicted, but everybody knew that this was the end. This image is of a book
called The Day Freedom Died. it’s a really
good narrative book about the Colfax massacre. It’s a good and chilling read. And the subtitle is The
Betrayal of Reconstruction, which is more or less accurate. This is sort of the end of
Louisiana reconstruction. In Louisiana it ends violently. In Alabama it ends violently. And given that it’s
clear that there’s not going to be any federal
prosecution of defendants in these kinds of
cases, really the power to respond to the violence is
not exercised and it continues. OK, so that’s the
snapshot number one. Snapshot number two, the
NAACP and state violence. We tend to think of the NAACP
as the biggest thing was in its history was Brown versus
Board of Education and it was. But of course the NAACP,
much of its history it was deeply concerned
with state violence. The NAACP of course, was
founded in response the 1908 Springfield riot,
yet another riot, in which once again,
mobs of whites attacked African Americans. This was one riot in particular
in which the local authorities mostly tried to protect
African Americans rather than being
complicit in the riot. Before 1935, if you ask what
was the work of the NAACP, the main work of
the NAACP was to try to get an anti-lynching
law passed a federal statute federalizing
certain kinds of crime. This is our theme that goes all
the way back to 1865 and 1866. And this is, as
many of you know, this is Charles Hamilton
Houston, 1922 Harvard Law School graduate, who
is regarded as having laid the groundwork for Brown
versus Board of Education. But Houston’s first
NAACP case, the thing that really kind of made
his reputation in the NAACP was a case in which he
traveled to Alabama under quite dangerous circumstances and
wrote a 57 page brief calling for federal prosecution
of an Alabama sheriff who was holding two
black defendants and allowed them to be taken
out of the jail and lynched. So the NAACP in its history
was very much concerned and implicated with this
narrative of state violence and what to do about it. Last one, let’s see, almost
last one Screws versus United States/ 1939 Frank Murphy,
future justice of the United States Supreme Court is the
Attorney General of United States. The Department of
Justice creates something called the Civil
Liberties Section now Civil Rights Division,
and they begin to invoke federal law to try to
prosecute local law enforcement officials who were implicated in
state violence against African Americans. Screws versus United
States involved Claude Screws, Georgia sheriff
who was indicted under the 1870 Enforcement Act, once again,
indicted under the 1870 Enforcement Act for
beating a black suspect to death in advance of trial. The DOJ got a conviction. It was appealed to
the US Supreme Court. The court held that
prosecutors must prove that the
sheriff specifically intended to interfere
with a right protected under the 14th Amendment,
meaning he beat him to death. But you have to prove in court
that when he beat him to death he was thinking about
his constitutionally protected rights. And he was beating him
to death to prevent him from exercising them. Unlikely thing to be
able to prove in court. Screws versus United
States is routinely cited by the
Department of Justice in rejecting NAACP petitions
in cases of state violence. OK let me do one
more slide and we’ll sort of do Q&A.
You know, what I’ve done is kind sketch out
an alternative narrative of the 14th Amendment
history, a narrative of which, in fact, from the
beginnings, from the framing of the Amendment
through its ratification through most of its
history, one of the concerns that Americans had
was whether or not the amendment would be operative
in cases of state violence against minority groups who did
not receive adequate protection under local law or for whom
local law enforcement was in fact implicated in violence. It’s a radical interpretation
of the Amendment because it’s really
difficult. It’s going to challenge
a couple of things are very fundamental
about American society. But nonetheless, it’s
an interpretation that persisted and persists
even after the Screws decision. If I want to continue
this in the 1960s, I would talk about Chaney,
Goodwin, and Schwerner, the three civil
rights workers who were murdered during
Freedom Summer 1964 for whom there was a
successful federal prosecution. I would talk about a
moment in the 1960s where the Department of
Justice and civil rights groups decided that they wanted to
really push for voting rights because doing
anything about this was just too difficult and too
contentious and too radical. I think to push voting rights
is probably the right move, I think undoubtedly
the right move. But it’s also true
that this kind of stuff was and remains just
so controversial. So this is our last slide. This is Ferguson. I mean we kind of think of
Ferguson and the 14th Amendment as being kind of separate
from one another. The 14th Amendment is things
like Brown or Obergefell but question. The image on this one over
here, the Department of Justice has done two reports
about Ferguson. You know the DOJ has entered
into a number of consent decrees with local police
departments around the country. And you might ask what gives
the Department of Justice the power to do this? Local law enforcement is local. What power does the
Department of Justice have to intervene
in local policing? Well the power it
has is actually derived from, my guess,
the 14th Amendment and from the narrative
that I have outlined here. So you know I kind of
talked a little bit about the radical past of
the 14th Amendment, this sort of narrative repeated
invoking of the Amendment in cases of state violence
against racial minorities and the uncertain
history of that process. And when I said radical past
and future question mark, I meant future question mark. I mean I think these are a set
of arguments that we’ve been having for the past 150 years. I think they are a set
of arguments we could continue to have at the future. But then again. I’m a historian. You ask about the future,
I say I don’t really know. I know a whole lot
about the past. You all are clearly people who
are thinking about the future. I think if this kind of
argument has a future, it’s probably going
to be in the hands of people like yourselves. So thanks. [APPLAUSE] STUDENT: Thank you very
much, Professor Mack. Just a historical question. In the aftermath of the Civil
War there’s tens of thousands of soldiers stationed
in the South. Were they turning a blind eye to
things like the Memphis and New Orleans riots? Were they complicit? Where were the soldiers who were
purportedly keeping the peace? KEN MACK: There
are three things. The soldiers are part of it. I would say there’s
three pillars that are protecting African
Americans from state violence in the aftermath of Civil War. One was what I’ve
been talking about. A number of the local district
attorneys, federal attorneys, brought these cases
and prosecuted people. There’s something called the
Great South Carolina Ku Klux Klan trials 1870 to 1873,
dozens and dozens and dozens of prosecutions. Federal courts are
overwhelmed in South Carolina. The second part of it was
the Freedmen’s Bureau, the temporary bureau that
was set up to help freedmen. It actually had its
own courts and it adjudicates cases like this. And the third prong
are the federal troops. But I think the federal
troops can only do so much. You know federal
troops can keep order. They were a necessary
part of this thing. But to make the thing work,
you needed working institutions of law that were going to
be able to do something about this. So they were there. They were necessary. They played a stabilizing force. They play a stabilizing role. But you needed a lot more. Oh and I’m sorry the other
thing is the black troops too. I mean, it’s really a big
part of this narrative. There are black troops. Most of them are initially
demobilized after a little bit, but you know, the
Memphis riot happens because there are black
troops in Memphis, which is a kind of
really provocative thing. More questions. I STUDENT: I was just curious. As the Supreme Court
started pealing back the layers of the Civil
Rights Act of 1866, did Congress at any time try
to maybe amend the language so that they could make
it clear that maybe that’s what the Supreme Court was
going against their intentions? I guess it would depend on
the kind of Congress they had, but I’m just curious about that. KEN MACK: I think the kind
of thing I’m talking about, arguments have moments. I think the really deep
and challenging and radical kind of argument, I’m
talking about has a moment, and I think that moment is
1865 to, let’s call it 1872. You know there’s a moment
in which Congress is trying to do something about this. It passes two more statutes. The action really isn’t in
the Civil Rights Act of 1866. I use the Blyew case just
to show you sort of what the Supreme Court is doing. But the action is
in the 1870 and 1871 statutes, portions of which
are still on the books. And you know Congress does act. And there’s been lots of
scholarship under this. The local federal attorneys
did bring lots of prosecutions under the 1870
and 1871 statutes. But what really happens is
after Blyew versus United States and after the Slaughterhouse,
those prosecutions tail off because the
Supreme Court has indicated very clearly that’s
going to read the statutes quite narrowly. And by that time, I think the
national will to do anything about this is gone. So there’s a moment where
there is some national will, but that national will
doesn’t last very long. STUDENT: Thank you very much. It seems that part
of this narrative is about attempts at
federal prosecution and federal involvement for what
are ostensibly state law crimes and kind of throwing
things against the wall and seeing what sticks. And not much sticks
for a long time. What would you
see as the turning point in terms of at least
the Supreme Court’s shift? Is it about invoking
federal criminal laws through Commerce
Clause and other means? Is there a shift in kind
of the Court catching up with the times? KEN MACK: You mean shift–
shift in which direction? STUDENT: At some point
the federal government is able to get
these indictments, is able to get convictions
that stick on appeal. And where does that
shift happen and how? KEN MACK: Convictions
that stick on appeal. STUDENT: Even when some of these
early examples even after that was a conviction in
the district court, they’re getting
thrown out later. KEN MACK: Some of them. STUDENT: Some of them. So the Supreme Court seems to be
reluctant to go down this road. KEN MACK: Yeah they’re
reluctant to go down this road. In my narrative of
the Supreme Court, I’m never very
hopeful about this. Frank Murphy is the
person who helps create the Civil Liberties
Division of the Justice Department. They start bringing these cases. Mark Tushnet has a
nice little couple of pages about this in his
biography of Thurgood Marshall. But you know, Murphy is
actually on the Supreme Court by the time they decide
Screws versus United States. I just think there has never
been that much will on behalf of the court to do
this kind of thing and just to tell you the truth I
mean there’s lots of narratives about the Supreme Court and why
it’s willing and not willing to do certain kinds of things. And I think there would have to
be national will for this kind of thing to happen. And the Court is not going to be
out in front of public opinion on an issue like this. And you know, I think part of
the debate we are having right now is you know is
there some national will to do something about this? And you all have to draw
your own conclusions about whether you’re hopeful
or pessimistic about the answer to that question. STUDENT: Thanks, Professor Mack. I guess one thing that
this reminded me of, there was a scholar
named Robert Cover who talked about the
violence of the law and how interpretation
often leads to violence being condoned. And it seemed like this was
a great illustration of that. But my question was more
about moving forward, thinking about pattern and
practice investigations in places like Ferguson. Do you see that as
a viable alternative to this type of litigation? Because of course as you
just described with Ferguson, there were two investigations,
and the pattern and practice investigation is
the one that was lauded as a viable replacement. So Attorney General
Holder almost states that, yes,
we’re going not be able to get there
using the traditional case law which you outlined. But here we have this new
tool of a pattern and practice investigation that can allow
us to use the consent decree process. And almost saying that this
is a victory and in a sense it’s better to have the
pattern and practice successes than the
individual convictions. Because now you’re working with
systemic problems as opposed to holding individuals
accountable. So do you agree that it was
a fair trade in Ferguson or do you see the pattern
and practice investigation as a viable alternative? KEN MACK: I tend to be
a bit of a pragmatist about these things, regardless
of what I said today. So yeah, I think that what
the DOJ did in Ferguson is. Great I think given
the limitations of the tools in their
hands, that’s probably about as good as you can do. I think it took a lot
of courage to do it. I’ve read the Ferguson reports. Actually one of my
former students. I mean this is the kind
of work you guys can do. Now there’s going to
be a new leadership of the Department of Justice. And we shall see what
the future brings. But one of my former students
wrote the Ferguson report. I mean this is the
kind of thing that will be available at some
point for many of you to do. So yeah, I think that that’s
a nice pragmatic thing to do. I think the consent
decrees they’ve entered into with various
police departments around the country are also very
nice and pragmatic thing to do. We’re going to get
real improvement out of those things. Although you know, these things,
there’s always a trade off. I mean there is a more systemic
and deeper and historical problem. And that more systemic and
deeper and historical problem is , I think one
that few people, including Eric Holder’s DOJ is,
as good as they were on many things, are willing to
take on without more national will to confront it. STUDENT: Thanks. MARK TUSHNET: OK. Thank you all. I hope you have
profited from the series and I hope it will
have some enduring effects on your education. Thank you. [APPLAUSE]

One Comment

  • Nasim mahmudmostafa

    Is there any measuring process of popularity versus electoral collage by law?and if the law is divided to support the to portion then how to decrease the devide by law?

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