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49 Harv. C.R.-C.L. L. Rev. 385 (2014)
Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon

handle is hein.journals/hcrcl49 and id is 393 raw text is: Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon James Gray Pope* United States v. Cruikshank (1876) is an unacknowledged landmark of American constitutional jurisprudence. Cruikshank, not the far more famous Civil Rights Cases, limited the Fourteenth Amendment to protect only against state action; Cruikshank, not the notorious Slaughter-House Cases, narrowed the Privileges or Immunities Clause of the Fourteenth Amendment to exclude rights enumerated in the Bill of Rights; Cruikshank, not the canonical Washing- ton v. Davis, announced that the Fourteenth Amendment's Equal Protection Clause protected only against provably intentional race discrimination; and Cruikshank, not the Civil Rights Cases or City of Boeme v. Flores, first ex- cepted the Fourteenth Amendment from the general principle that Congress en- joys discretion to select the means of implementing its constitutional powers. Historically, if the argument of this Article holds true, Cruikshank played a cru- cial role in terminating Reconstruction and launching the one-party, segrega- tionist regime of Jim Crow that prevailed in the South until the 1960s. The circuit court opinion of Justice Joseph Bradley unleashed the second and deci- sive phase of Reconstruction-era terrorism, while the ruling of the full Court ensured its successful culmination in the redemption of the black-majority states. Despite its enormous jurisprudential and historical importance, however, Cruikshank has been omitted from the mainstream narrative and pedagogical canon of constitutional law. The results have been obfuscation and distortion. Unlike the Civil Rights Cases, Slaughter-House, Davis, and City of Boerne - from which students learn the principles actually announced in Cruikshank - Cruikshank lays bare the true origin of those principles in affirmative judicial intervention immunizing overtly racist terrorism against effective law enforce- ment. By contrast, Plessy v. Ferguson, the legal profession's chosen focus for * Professor of Law and Sidney Reitman Scholar, Rutgers University School of Law. My intellectual debts on this project go back to my dissertation defense, when Hendrik Hartog, seconded by Daniel Rodgers and Keith Whittington, forcefully steered me toward the problem of race and class. Peter Kellman provided essential advice on the overall approach. Jim Atle- son, Bill Fletcher Jr., Eric Foner, Barry Friedman, Alan Hyde, John Leubsdorf, Ken Matheny, Richard Davies Parker, Richard H. Pildes, Dorothy E. Roberts, Ahmed White, Rick Valelly, and Rebecca Zietlow provided invaluable criticisms and suggestions on previous drafts. Pamela Brandwein and Michael Klarman went far beyond the call of duty to point out numer- ous weaknesses in the argument. The Article also benefitted from critical comments at the second annual Alan Dawley Memorial Lecture at the College of New Jersey in 2011, the 2011 Cornell Law Faculty Colloquium, the 2013 Rutgers-Newark Law Faculty Colloquium, the 2011 West Virginia Law Faculty Colloquium, the ClassCrits V Conference at the University of Wisconsin Law School, the 2012 How Class Works Conference at SUNY Stony Brook, the 2009 LatCrit XIV Conference at American University in Washington, D.C., and the 2013 Law and Society Association International Meeting in Boston. Paul Axel-Lute, Susan Lyons, and Caroline Young of the Rutgers-Newark Law Library provided indispensible assistance navi- gating the rapidly changing research landscape to find sources. Last but by no means least, many thanks to the editors of the Harvard Civil Rights-Civil Liberties Law Review and espe- cially to Ethan Prall for contributions ranging from meticulous cite checking to big-picture substantive suggestions.

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