John Roberts and the Second Redemption Court - The Atlantic

John Roberts and the Second Redemption Court - The Atlantic
by Adam Serwer

Adam Serwer has a new piece in the Atlantic that tells the story of the post-civil war cases betraying the promise of the 14th Amendment and of Emancipation.   He leads into the Roberts court as the Second Redemption Court (as in southern "Redeemers" of lost white power).  The eye catcher for me is that Serwer begins with the Colfax Massacre in Louisiana on Easter Sunday in 1873.   The Supreme Court vacated murder convictions by the white militiamen.  It gutted federal protections by the insertion of  the intent requirement and limited the 14th Amendment​ to state action in the 1874 and 1875 Cruikshank cases.  That fact is  concisely stated by Serwer in the excerpt below.  We live with the heritage of that betrayal f the promise of Reconstruction.

In the first of the Cruikshank cases  New Jersey railroad lawyer and Justice Joseph Bradley found that the 14th Amendment did not empower the federal government to prosecute the white militiamen who murdered the defenders of the elected local government.  Such private discrimination - if that was what it was - was a matter for the states.   Bradley's ruling reversing convictions of a handful of the murders  was upheld two years later by the full Supreme Court. Since then the states were free to ignore the racist depredations committed within their borders. This approach was first brought to my attention by James Pope's Snubbed Landmark and Martha McCluskey's Facing the Ghost .

- GWC

​Serwer:

 

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​ Seventy-two men were ultimately indicted for their role in the Colfax massacre, charged under the Enforcement Acts of 1870, which were passed to help the federal government suppress the Ku Klux Klan. But their convictions were overturned by the U.S. Supreme Court, which concluded that the federal government lacked the authority to charge the perpetrators. Justice Joseph Bradley, a Grant appointee, wrote that the United States had not clearly stated that the accused, in slaughtering more than 100 black men, had “committed the acts complained of with a design to deprive the injured persons of their rights on account of their race, color, or previous condition of servitude.” And it wouldn’t have mattered if they had, argued the Grant-appointed Chief Justice Morrison R. Waite, because the Fourteenth Amendment’s powers did not cover discrimination by individuals, only by the state. “The only obligation resting upon the United States is to see that the States do not deny the right,” Waite wrote. “This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.” ​