How Ulysses Grant used a brand-new Justice Department against the Klan

Ulysses S. Grant has had the worst press agent in American history, and the press agent is the textbook. The man who accepted Lee's surrender at Appomattox, who won two presidential elections, who held the Union together in the years when it was most likely to come apart, is remembered mostly for the crooks who got close to him. Whiskey rings. Bribed cabinet secretaries. A general who trusted friends too easily and paid for it in his reputation.

Those scandals were real, and I will not pretend otherwise. But there is another record, one that should matter a great deal to a party that calls itself the party of law and order, and it is almost never taught. In his first term, Grant built a new federal department, appointed lawyers who meant business, and used them to break a campaign of organized terror against Black citizens and the white Republicans who stood with them. For a few years, the federal government did the most basic job a government has: it protected people from being murdered for voting.

Let me tell it in order, because the order is what makes it hang together.

1865 to 1869: the terror begins

When the Civil War ended, the Thirteenth Amendment had abolished slavery in 1865, and the Fourteenth, ratified in 1868, wrote citizenship and equal protection into the Constitution. The Fifteenth, ratified in 1870, said that the right to vote shall not be denied on account of race. (If you want what those three do in plain language, see Citizenship, Equal Protection and the Ballot in the 14th and 15th Amendments.)

Paper rights are one thing. Exercising them is another. In the years right after the war, the Ku Klux Klan and similar groups organized across the former Confederacy, largely among former Confederate soldiers, and went to work with whips, fire and the rope. Their targets were freedpeople who voted, taught school, held office or owned land, along with the white Republicans, often called scalawags, who worked beside them. The aim was political: break the Republican coalition in the South by frightening its voters and killing its leaders. And in many places the local sheriff, the local judge and the local jury were either in on it or scared of it.

That is the problem Grant inherited when he took office on March 4, 1869. States that were supposed to enforce the law would not, or could not. The Constitution had just given Congress power to enforce the new amendments. The question was whether anyone would use it.

1870: the Fifteenth Amendment, the first Enforcement Act and a new department

In February 1870 the Fifteenth Amendment was ratified. Congress followed it quickly. On May 31, 1870, Grant signed the first Enforcement Act. It made it a federal crime to interfere with a citizen's right to vote because of race, to bribe or threaten voters, and to conspire to injure or intimidate a citizen in the exercise of a constitutional right. It also reached the disguise, making it a crime to go masked on the highway or onto another person's property to do such things. And it gave federal courts jurisdiction to hear these cases.

A law with no one to enforce it is a poem. So Congress did a second thing that summer. On June 22, 1870 it passed the act creating the Department of Justice, which opened its doors on July 1. Before that, the Attorney General was a lone officer with a small staff, and the government hired outside lawyers case by case, at a cost that Congress had been grumbling about. The new department folded that work under one roof, and created the office of Solicitor General to argue the government's cases before the Supreme Court. Notice the conservative note in the origin story: part of the point was to stop paying private attorneys by the hour.

Grant's new Attorney General, appointed that June, was Amos Akerman, a New Hampshire-born lawyer who had settled in Georgia and served in the Confederate army, then joined the Republicans after the war. He was an unlikely radical, and he turned out to be the best the job could have had. He and his Solicitor General, Benjamin Bristow, took the new law seriously.

1871: the Ku Klux Klan Act

The first Enforcement Act helped but did not stop the violence. In February 1871 Congress passed a second Enforcement Act dealing with federal supervision of elections in large cities. Then came the heavy one.

In March 1871 Grant sent a message to Congress telling it that conditions in some Southern states had made life and property insecure and that existing law was not enough. Congress answered with the Act of April 20, 1871, known as the Ku Klux Klan Act, or the Third Enforcement Act. It did several things:

1. It made conspiracies to deprive people of equal protection or their civil rights federal crimes, even when committed by private parties in disguise.
2. It gave victims a right to sue in federal court anyone who, acting under color of state law, deprived them of their rights. That provision, Section 1 of the Act, survives today as Section 1983 of Title 42 of the United States Code, one of the most important civil-rights statutes on the books, and conservatives use it too, for example in suits over free speech and gun rights.
3. It authorized the President to use the Army and militia against such conspiracies, and, in areas of actual insurrection, to suspend the writ of habeas corpus for a limited time.

A congressional committee spent months taking testimony in the South, and the thirteen volumes it produced are an extraordinary record of what ordinary people endured. You do not need to take my word for the terror. Read the testimony.

October 1871: nine South Carolina counties

The test came in upcountry South Carolina, where the Klan had been strongest. Akerman went there himself and worked with federal prosecutors, marshals and troops to gather evidence and make arrests. On October 12, 1871, Grant issued a proclamation ordering the combinations in several counties to disperse. When that was not enough, on October 17 he issued a second proclamation suspending the writ of habeas corpus in nine South Carolina counties.

I want you to stop and think about that, because it is a very serious step. The writ of habeas corpus is the ancient safeguard that stops the state from locking people up without a charge. The Constitution allows suspension only in rebellion or invasion when public safety requires it. Congress had authorized the step in the Klan Act, the authority was temporary, and Grant used it in a limited area and for a defined purpose. Arrests followed in large numbers, and a series of federal trials followed in Columbia in late 1871 and 1872. Many of the accused pleaded guilty. Some leaders fled the state. By the standards of what came before, the result was striking: the organized terror in the upcountry largely collapsed.

The strongest objections

If you cheer for this, you owe yourself the best case against it. The opposition at the time came mainly from Democrats, and by 1872 from a growing group of Liberal Republicans who had grown weary of Reconstruction and of Grant. Here is how I would state their position at its strongest.

One. Policing ordinary crimes such as assault and murder has always been a state matter, and the Enforcement Acts federalized them. That turns the federal government into a national police force and erodes the line between state and federal power that the Constitution draws.

Two. Suspending habeas corpus is the most dangerous power any government has, and once it is on the books, it will be used again and not always wisely.

Three. Federal troops propping up unpopular state governments are no way to build consent. At some point the South has to govern itself.

Those are serious arguments, and a conservative should feel their weight. Here is why I think they fail on the facts of 1871.

First, the Fourteenth and Fifteenth Amendments, adopted by the people's representatives and the states, expressly give Congress the power to enforce them by appropriate legislation. The Enforcement Acts are not an invention of an overreaching executive. They are Congress using a power the Constitution handed it, three years after the war. Federalism does not protect a state's right to let its citizens be killed for voting.

Second, the states in question were not enforcing the law. The principle of leaving ordinary crimes to the states assumes that the states will prosecute them. In the Klan's strongholds, they did not. A limit on federal power that depends on state good faith is no limit if the states are the ones doing the harm.

Third, on habeas, I will give the critics half. The suspension was a grave step and a conservative should be wary of it. What mattered was the structure: Congress authorized it, in specific terms, for a time limit and an area limit, against actual armed conspiracy, with prosecutions in open court. That is how you handle an emergency power if you must use one: on a short leash, with a legislature watching. And the Klan Act's emergency authority was temporary.

1873 to 1883: the narrowing

Then the story turns, and the turn is worth as much attention as the victory.

On Easter Sunday, April 13, 1873, in Colfax, Louisiana, a white mob attacked Black defenders of the courthouse in a dispute over a contested state election. Dozens of Black men were killed, many of them after they had surrendered. Federal prosecutors charged some of the perpetrators under the Enforcement Act of 1870. In 1876, in United States v. Cruikshank, the Supreme Court threw out the convictions. Chief Justice Morrison Waite wrote that the Fourteenth Amendment protects citizens against action by the states, not against ordinary crimes by private persons, and that the indictments did not adequately allege racial motive. In the same term, in United States v. Reese, the Court read the Fifteenth Amendment narrowly and struck down parts of the 1870 Act. Earlier, in the Slaughter-House Cases of 1873, it had already shrunk the Fourteenth Amendment's privileges or immunities clause. And in 1883, in the Civil Rights Cases, it struck down most of the Civil Rights Act of 1875 that Grant had signed.

The effect was to leave Southern Black citizens largely to the mercies of state governments that were returning to the control of the people who had fought Reconstruction. Federal protection did not return in force until the Civil Rights Act of 1957, the Civil Rights Act of 1964 (see The Civil Rights Act of 1964 and the Republican Votes That Broke the Filibuster) and the Voting Rights Act of 1965. Roughly ninety years passed.

The political will weakened too. In 1875, when Mississippi's Republican governor asked for troops to protect voters from a violent Democratic campaign, Grant, by then facing a nation tired of Reconstruction and a coming election, declined. In 1877, the last federal troops left the South as part of the settlement that ended the disputed election of 1876, which you can read about in Hayes, Tilden and the Compromise of 1877 That Ended Reconstruction. And in 1890, Republicans in Congress tried once more to put federal supervision behind elections with the Lodge bill; see The 1890 Lodge Force Bill and the Elections Law Republicans Could Not Pass for how that effort died.

What conservatives should take from it

I'll offer four lessons, in the order I would argue them.

1. Law and order is a Republican tradition, and the first order of business was protecting voters. When someone tells you the party's heritage is only tax cuts and tariffs, point out that the first Attorney General to run a real Justice Department was working for a Republican President to prosecute men in hoods.
2. Rights written down but not enforced are a promise to be broken. The Fifteenth Amendment sat on paper until Congress and the Justice Department gave it teeth, and when the Court and the public mood took the teeth out, the right went dormant for a lifetime. Courts matter. So does enforcement.
3. Emergency powers deserve sunsets, specific targets and a legislature watching. Grant's habeas suspension is the model of how to do it with restraint, and a warning of what the power can do.
4. Federal power over elections is real, limited and constitutional. The Elections Clause in Article I lets Congress regulate the times, places and manner of congressional elections, and the Fifteenth Amendment lets it enforce the ban on racial discrimination in voting. Conservatives who want clear rules on ID, list maintenance and ballot handling should be able to argue about the proper federal role without pretending that the question was invented yesterday. For current bills and votes you can check /politics/elections/ and Congress.gov.

For the companion story of the same laws, told through the acts themselves, see Grant, the Enforcement Acts and the Federal Government's War on the First Klan, and for the people who benefited from this period of protection, see A timeline of the Black Republicans who sat in Congress after the Civil War.

The bottom line

• Grant's Justice Department, created in 1870 and led by Amos Akerman, was the first sustained federal effort to protect Black voters from organized terror. It worked while it lasted.
• The Klan Act of 1871 still matters: its civil-suit provision is Section 1983, used by Americans of every political stripe.
• Emergency powers like the habeas suspension of October 1871 should come with limits of time and place and with Congress watching. Defend the example and the guardrails together.
• A right is only as strong as the court that reads it and the executive who enforces it. When you hear a debate about the courts, remember Cruikshank and what one narrow reading cost.
• Next time someone sneers at Grant, ask them which administration did more for voting rights in the nineteenth century.