About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most