Grant, the Enforcement Acts and the Federal Government's War on the First Klan

I distrust federal power. You should too. I want the Washington bureaucrat kept on a short leash, the Constitution read the way it was written, and the decisions that can be made at home made at home. If you came here expecting me to say otherwise, you will be disappointed.

And that is exactly why I want to tell you about the time Washington did the right thing, did it by the book, and did it with the tools the Constitution actually gave it. A government that cannot protect a man from being dragged out of his bed at night for voting is not a limited government. It is a failed one. The early Republican years offer the strongest case I know that federal power, used within its constitutional lane to protect ordinary citizens from organized violence, is not the enemy of liberty. It is its guardian.

The thesis

Here is what I am going to argue, so you can hold me to it. A Republican administration in the early 1870s, working with a Republican Congress, used the powers granted by the 14th and 15th Amendments to break the first Ku Klux Klan. It did so through ordinary legal tools: new criminal statutes, a new Department of Justice, grand juries and trials. It worked. The later retreat from that effort, by the courts and then by the country, is a lesson in what happens when the promise of equal rights is left unenforced.

I will make the case in five numbered steps, then answer the best objection.

Premise one: the Klan was terror aimed at the Constitution

The first Klan began in Pulaski, Tennessee, in 1865 or 1866, founded by former Confederate soldiers. It started as a social club and grew into a secret organization that used night riding, whippings, arson and murder to keep freed people and their white allies from voting, holding office, owning land or testifying in court.

This is not a matter of one-sided history. In 1871, Congress created a joint committee to investigate conditions in the former Confederate states, and it took testimony from hundreds of witnesses over many months, producing thirteen volumes. Black and white Southerners told the committee what had been done to them: beatings, killings, burnings of homes and schools. The record is in the Congressional documents for anyone to read.

The target was plain. The 13th Amendment had ended slavery, the 14th had made the freed people citizens with equal protection of the laws, and the 15th, ratified in 1870, said the right to vote could not be denied on account of race. The Klan's violence was designed to nullify those amendments by force. Read what the amendments say in Citizenship, Equal Protection and the Ballot in the 14th and 15th Amendments, and the purpose of the night riders becomes obvious: they were fighting the Constitution.

Premise two: the states could not or would not stop it

A good conservative asks the first question first: why not let the states handle it? Law enforcement is the classic local job, and I would normally want it kept there. In this case, the answer is that the states were failing.

In some places, the Republican state governments that had come to power after the war had neither the money, the militia nor the nerve to confront the Klan, whose members were often neighbors, sheriffs and jurors. In other places, local officials were sympathetic to the Klan or members of it. Juries drawn from the local population would not convict their neighbors. Witnesses were afraid to testify. A man could be murdered in front of his family, and nobody would be charged.

That is the point at which the principle of local control meets its limit. Subsidiarity, the idea that decisions belong at the lowest competent level, comes with an important word in it: competent. When the local level is captured by the people committing the crime, the next level up has a duty to act. I make the broader case for keeping power local in Subsidiarity Is the Old Idea Behind Keeping Power as Close to Home as Possible, and the exception I describe here is built into the very logic of the argument.

Premise three: the Constitution gave Congress the power

Here is the step that separates a constitutional argument from a political one. The 14th Amendment, in Section 5, gives Congress the power to enforce its provisions by appropriate legislation. The 15th, in Section 2, says the same. The 13th has an enforcement clause as well. These were not hidden powers or implied ones. The Republicans who wrote them wrote the powers in plain words, precisely because they had watched the Southern states resist the freedom they had just won.

So when Congress passed laws to protect voting rights and punish conspiracies against them, it was not inventing authority. It was using authority the people had added to the Constitution by amendment. This is the difference between a federal power grab and a federal power exercised. One goes beyond the text. The other follows it. For the general rule, Congress Can Only Do What the Constitution Lists and Madison Said So is the place to start, and the Reconstruction Amendments are among the clearest examples of added power.

Premise four: Congress and Grant used the power

Now the record of what was done. In order:

1. May 31, 1870: the Enforcement Act. It made it a federal crime to interfere with a citizen's right to vote and to conspire to injure or intimidate citizens in the exercise of their constitutional rights, and it targeted people who went in disguise on public highways for that purpose.
2. June 22, 1870: the Department of Justice. Congress created the Department of Justice, which began operating on July 1, 1870, and gave the Attorney General a staff of lawyers to bring federal cases. Grant appointed Amos Akerman of Georgia as Attorney General. Akerman was a Northern-born lawyer who had lived in Georgia, served in the Confederate army and later joined the Republican Party. Benjamin Bristow became the first Solicitor General.
3. March 1871: Grant's message. The President sent a message to Congress asking for further legislation, saying that in parts of the South the situation had become dangerous.
4. April 20, 1871: the Ku Klux Klan Act. Congress made it a crime for people to conspire to deprive citizens of equal protection of the laws or of equal privileges and immunities, and it authorized the President to use the army and, in extreme cases, to suspend the writ of habeas corpus in areas where the Klan had overwhelmed local authority.
5. October 1871: nine counties in South Carolina. Grant issued a proclamation ordering the Klan to disperse, and when it did not, he suspended habeas corpus in nine counties of the state. Federal marshals and troops made arrests, and federal grand juries returned indictments against many.
6. 1871 and 1872: the trials. Federal courts in South Carolina and Mississippi tried the Klan's members, and many were convicted. Others fled or surrendered. Historians generally agree that the federal prosecutions broke the first Klan, and organized night-riding terror declined sharply.

Note the care of the process. Federal prosecutors charged people under statutes, before federal judges, with grand juries, defense lawyers and trials. Habeas corpus was suspended only in a limited area and only after a formal warning. This is a use of federal power with the legal machinery still running.

One piece of the Klan Act is with us today. Section 1 of the 1871 law gave citizens a right to sue state officials who violate their constitutional rights under color of law. It is now codified in Title 42, Section 1983 of the United States Code, and it remains one of the most commonly used civil rights statutes in the country. Conservatives debate how it should be applied, especially to police and local officials, but the principle that a citizen can hold a government official accountable for violating his rights came from the Reconstruction Congress.

I have written more about this department and its first years in How Ulysses Grant used a brand-new Justice Department against the Klan. And I'll say a plain word about the President. Ulysses Grant's administration had scandals, and I'm not defending them. But on this question he did what he had sworn to do.

Premise five: the retreat

If the story ended there, it would be a triumph. It does not.

In April 1873, in the town of Colfax, Louisiana, a quarrel over a disputed local election ended in a massacre of scores of Black men, many of whom were killed after they had surrendered. Federal prosecutors brought charges under the 1870 Enforcement Act. In 1876, in United States v. Cruikshank, the Supreme Court, under Chief Justice Morrison Waite, threw out the convictions. It held that the 14th Amendment limits what states do and does not reach the actions of private individuals, and that the indictment had not properly charged an offense under the statute. In the same year, in United States v. Reese, the Court struck down parts of the 1870 Act on the ground that they went beyond the text of the 15th Amendment. In 1883, in United States v. Harris, it struck down the section of the Klan Act that reached private conspiracies.

The political ground was moving too. The Panic of 1873 pushed the economy into a long slump, voters grew tired of the South, and the North lost interest. New paramilitary groups arose in the mid-1870s, such as the White League in Louisiana and the Red Shirts in South Carolina, and they pursued the same goal as the Klan, openly. The disputed election of 1876 and the settlement that followed, told in Hayes, Tilden and the Compromise of 1877 That Ended Reconstruction, marked the end of federal enforcement. Federal troops left, and the South entered an age of segregation and disfranchisement that lasted for most of a century.

A footnote on Cruikshank for the gun-rights reader: the decision also said the Second Amendment restricted only the federal government, not the states or private persons. That part of its reasoning was later overtaken, when the Court in McDonald v. City of Chicago in 2010 held the Second Amendment applies to the states. The logic of incorporation, and the Court's earlier refusal to apply rights against the states, are tied up in the same history.

The strongest objection: Reconstruction was federal overreach

Now let me state the other side at full strength, because it is not frivolous and it has real conservative roots. The objection says: the Enforcement Acts and the Klan Act altered the balance of federalism. They put federal prosecutors and federal troops into matters that had traditionally belonged to the states. The suspension of habeas corpus was an extreme step. And Reconstruction as a whole, with its military districts and its sometimes corrupt state governments, discredited the very idea of federal intervention.

I take that seriously, and here is my answer in four points.

1. The Constitution was changed first. The people, through the amendment process, added the 14th and 15th Amendments and their enforcement clauses. The balance of federalism was changed by the same method used to establish it, so the "overreach" label does not fit.
2. The alternative was non-enforcement. The choice was never between federal power and no power. It was between enforcing the Constitution's new guarantees and letting a private army defeat them.
3. The tools were restrained. Habeas corpus was suspended only in nine counties, after a warning, for a short time. Trials were held. Punishments followed convictions. Compare that to the violence the law was written to stop.
4. The failures of Reconstruction are not an argument against the principle. Corruption in some state governments was real. So were the Klan's murders. A fair reader does not use the first to excuse the second.

Does this mean any use of federal power is justified? No. The test I'd apply is the one I used above: Is the power in the text? Is the local level unable or unwilling to act? Is the response limited, lawful and tied to a clear violation of individual rights? When the answer to all three is yes, a limited-government conservative can support it with a clear conscience. When any of them is no, the burden should fall on Washington.

The verdict

My verdict is simple. A government that guards the lives and rights of ordinary citizens against organized violence is doing its first and best job. The early Republican administration did that job, with the powers it had been given, and it largely succeeded. The country's later decision to look away is one of the great failures of American history, and it was a failure of will, not of principle. For the story of the Black Americans who served in Congress in those years, A timeline of the Black Republicans who sat in Congress after the Civil War is the place to go, and for a later attempt to protect federal elections that Republicans could not pass, The 1890 Lodge Force Bill and the Elections Law Republicans Could Not Pass tells the story.

The bottom line

• The first Ku Klux Klan used terror to nullify the 14th and 15th Amendments, and local authorities often could not or would not stop it.
• The Enforcement Acts of 1870 and 1871, the new Department of Justice and Grant's actions in South Carolina in October 1871 used powers the Constitution expressly gave Congress. They broke the first Klan.
• The Supreme Court's decisions in Reese and Cruikshank in 1876 and Harris in 1883, and then the end of Reconstruction, cut the effort short. Section 1 of the Klan Act survives today as the statute known as Section 1983.
• If you value limited government, ask the three questions: is the power in the text, is the local level unable or unwilling, and is the response limited and lawful? Apply them to every claim of federal authority, in any year.
• Do not let anyone tell you that conservatives have to choose between the Constitution and civil rights. The Republicans who wrote the amendments did not see a conflict, and neither should you.