How White Supremacy Was Codified Into Law in America
Margaret A. Burnham on the Legal Legacy of Jim Crow
“The Black Man Is a Person Who Must Ride ‘Jim Crow’ in Georgia”
A nineteenth-century federal case, United States v. Cruikshank, foreshadowed what was at stake in the twentieth-century struggle over federalism and citizenship. The case concerned a massacre that took place in Colfax, Louisiana, on Easter Sunday 1873. When the guns fell silent in a confrontation over the results of an election pitting Republicans, Black and white, against white Democrats, many of whom were former Confederate soldiers and members of groups like the Ku Klux Klan, 3 white men and somewhere between 60 to 150 Black men were left dead, and the parish courthouse, the site of the siege, was virtually in ashes.
Historian Eric Foner described this event in majority-Black Grant Parish as the “bloodiest single instance of racial carnage in the Reconstruction era.” It “taught many lessons,” he wrote, “including the lengths to which some opponents of Reconstruction would go to retain their accustomed authority.” Although 97 members of the white mob were indicted under federal law, only 9 were charged. Congress investigated the massacre and released a report describing it as a “deliberate, barbarous, cold-blooded murder” that was a “foul blot on the page of history,” but the appellate courts overturned all the ensuing convictions.
The most harmful opinion came not from the US Supreme Court, but from one of its justices, Joseph P. Bradley, who was sitting on the federal appeals court along with two other judges. Bradley construed the laws that the Reconstruction Congress adopted to curtail racist terror in a manner that made it clear the federal courts would view with hostility any congressional efforts to confer all the elements of citizenship on the formerly enslaved.
He read narrowly the constitutional grant of power to Congress to pass such laws. He reduced congressional power to hold individuals liable for civil rights violations. He heightened the prosecutor’s burden in these cases by demanding proof of intentional discrimination. And, in effect, he reinforced the widely held belief that Black people should not be permitted to bear arms, notwithstanding the Second Amendment. The long shadow cast over federal civil rights enforcement by Bradley’s opinion, which was endorsed by the Supreme Court, has crippled civil rights enforcement to this day.
In Louisiana, the reaction to Bradley’s opinion was swift and brutal. Night riders in Colfax slit the throat of a Black man named Frank Foster who was, disastrously, in the wrong place at the wrong time. A few days later, one of the defendants in the Cruikshank trial, seemingly emboldened by the Bradley decision, helped an armed group force five Republican officials to leave their posts. Mob terror against Republicans picked up across the South, escalating the full-throttled project of violent redemption.
The Cruikshank case was about more than abstract theories of federalism and the separate powers of Congress and the courts. The limits on the constitutional authority of Congress to control racist violence changed the balance of power in favor of state and local police, prosecutors, and courts, who could thereafter enforce white supremacy without much fear of federal oversight. As the cases described in my new book, By Hands Now Known underscore, the violent enactment of Jim Crow’s precepts aligned with the unfettered power exercised by local police—elected sheriffs and their deputies in the rural South, police chiefs and their officers in the cities and towns.
Slavery abides in all American institutions, but its formative and enduring presence in policing during Jim Crow was particularly palpable. Indeed, the unremitting lines between violent policing, slavery, and Jim Crow were pronounced well into the twenty-first century. It could be perceived in the violence that claimed the lives of Trayvon Martin, the teenager who in 2012 violated the “white space” rule; Sandra Bland, who in 2015 defied the “never talk back to a white cop” rule; and George Floyd, the tall Black man whose mere existence was so irksome to a white officer that he felt entitled to perform a public execution in 2020. Such violence, at once calculated and casual, reconstructed the culture of policing from one generation to the next, from slavery through Jim Crow and beyond.The violent enactment of Jim Crow’s precepts aligned with the unfettered power exercised by local police—elected sheriffs and their deputies in the rural South, police chiefs and their officers in the cities and towns.
Performance of power and degradation, of Black otherness—this alienation of Black humanity, illegalization of Black life—is just half of the story of the parallels between modern policing and slavery. Black communities have fought back, and that militant history—the other half of the story—establishes that protest against police violence has always been central to Black social movements.
From 1865 to the present, Black people have identified “law enforcement officers” as perhaps their most potent existential threat. In the first year of the twentieth century, a race riot broke out in New York City’s Tenderloin district. The police force encouraged a mob intent on a lynching. New York activists who gathered the testimony of eighty victims reported that “it was the night sticks of the police that sent a stream of bleeding colored men to the hospital.”
Led by T. Thomas Fortune, a prominent Black journalist of the day, New Yorkers formed the Citizens’ Protective League to pursue prosecutions against the officers. The league was not successful and the officers went back to their beats. That was more than a century ago, long before three Black women coined the phrase Black Lives Matter.
Lawless police acting on behalf of the state has defined how Black people experienced American law for two centuries, and concomitantly, Black struggles for citizenship and meaningful democratic participation have always included radical demands for relief from such state violence. When, in current times, the Department of Justice defers to state prosecutors and juries, and when the federal courts enfeeble civil rights remedies that might make victims whole, as they do by allowing police to escape civil liability by claiming immunity, they are calling up the old playbook. Hovering all around us, in our august federal courts as much as in our county courtrooms, is the law of Jim Crow and, as well, its antecedent, the law of slavery.
Excerpted from By Hands Now Known: Jim Crow’s Legal Executioners by Margaret A. Burnham. Copyright © 2022. Available from W.W. Norton & Company.