I just finished The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction, having grabbed it after hearing the author mention in a lecture that he tried to explain in there Reconstruction’s legal deconstruction.  With a book that reads like a very sad episode of law and order, Charles Lane did just that.  He provides the diverging accounts of, and then the historical underpinnings of, and finally the facts of the Colfax Massacre.  After no one could agree on the 1872 election results, and the Governor sent mixed messaged regarding commissions in Colfax, Louisiana, the Republican partisans took possession of the local courthouse.  The group, which ultimately became the local black male population, was then surrounded by a large band of white supremacists.   Surrounded, outnumbered, and outgunned, the group of 70-80 men surrendered and began to leave the courthouse, whereupon the whites fired on them.  Later that evening, several blacks taken prisoner were executed.  

Like L&O, the story then shifts to the prosecution.  First, figuring out exactly how to charge the culprits.  Then, rounding them up.  And finally the trial, then a re-trial, then the Supreme Court’s decision.

Lane fits this episode into the white terrorism that plagued the former Confederacy, and the attempt via the Enforcement Act to find a solution with federal law.  It is ultimately a story of failure – but I had not really grasped the kind of failure Reconstruction seems to have been.  

Where I had thought the effort was hasty or insincere, it appears through Lane’s telling more to have died from fatigue.  It feels more to me now more like a losing battle against poverty than a back-room political deal.  The politics are more nuanced than I had known – particularly what in hindsight is the obtuse appeasement strategy of many to the southern trouble-makers.  

What was really a shock though–with apologies if I missed this in class back in the day–was that the Slaughterhouse cases were writted with, apparently, an intention quite separate from the result.  For constitutional law students, Slaughterhouse is quick slang for the notion that the 14th amendment is to be understod narrowly; it protects only privileges and immunities given by the federal government, as opposed to state-derived rights.   Here is the text:

 
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

When I read “…the laws,” I don’t mentally add “of the federal government, and not the state government.”  The argument for that mental supposition is that the amendment instructs states to refrain from abridging the privileges and immunities of US citizens, and so it only refers to US citizen-centered privileges and immunities.  The logic relies on the fact that we are (1) US citizens AND (2) [your state here] citizens.  As such, we have two sets of rights, and the 14th is telling states to respect the US rights.  

The twist that Lane’s book taught was that Justice Miller, Slaughterhouse’s author, was trying to shut down the plaintiff that argued for a broad 14th amendment to allow him more fodder for challenging Reconstruction laws.  By doing so, though, Miller closed a heavy door for later civil rights cases.

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