Lesson Unlearned: When Political Violence Faces No Accountability

Democracy Academy: The Dismissal of the Jan. 6 Indictments…and the Warning from a Censored Past

This is a modified version of something I posted in September. But it’s especially relevant given this week’s news that the January 6 indictments were dismissed:

A disputed election result. A violent attempt to overthrow it. A court that wiped out any accountability. And an election that followed where those who orchestrated the violence end up as the victors.

It’s a fact pattern we saw come to its disturbing conclusion this week, with the dismissal of the January 6 indictments against Trump and others.

And it’s also a fact pattern from the distant past that still haunts us today (and, no accident, a lesson that is too often shrouded by the censorship of the darkest parts of our history).

This BONUS class of my Voting Rights Academy is about a past act of horrific political violence following a disputed election, the Supreme Court case that also declared there was nothing the federal government could do about it, and the tragic long-term consequences of that lack of accountability.

The parallels to today will disturb you.

And the incident is also another example of how the victors rewrite history—and in this case, those victors buried the truth for close to a century. The incident and case are still virtually unknown today.

And that may be one reason why the clear lesson from the past—that political violence must face swift and decisive accountability, or the violence and lawlessness only continue—was ignored by the powers that be in far too many institutions (starting with the failure to impeach) for too long, to the point where the January 6 indictments are no more.

History warns us that lack of accountability poses real danger going forward.

Here is that history:

The Colfax Massacre

(Most of my account below is drawn from the excellent book written by Charles Lane: The Day Freedom Died)

The two names tell you everything.

In 1869, in rural Lousiana, naming a new parish (county) after Ulysses Grant (on March 4, the same day the President was sworn in as President), and a new town after Schuyler Colfax, Grant’s new Vice President, underscored that politics defined the community from its very creation.

And in the years that followed, the heated and violent political tension in Colfax, and surrounding Grant Parish, never let up.

In the same 1872 election that reelected Grant at the highest level, state and local elections in Colfax pitted two factions against one another:

On one side stood a multi-racial coalition of Republican candidates and their supporters—a combination of White candidates and citizens, many having transplanted from the North, and newly enfranchised and politically active Black Louisianans, most of them former slaves from the area.

On the other side stood a slate of Democratic candidates, teeming with white supremacist sentiment and eager to eliminate Reconstruction and diverse democracy at all levels of Louisiana government, starting locally.

Of course, a similar political showdown was playing out across the South at the time, tinged with high tension that often spilled over into outright violence largely aimed at Black citizens. Both Black voters and elected officials and convention participants were routinely attacked—sometimes murdered.

But in Colfax—where a high-stakes and chaotic dispute emerged over who actually won those 1872 elections, then built into a face-off of large armed groups inside and surrounding the town’s courthouse—the powder keg exploded far beyond that.

By the time the courthouse was in flames, only Black residents of Grant Parish—hundreds of them—remained trapped inside. Surrounding them, armed to the hilt, was a posse drawn largely from white supremacist groups that had emerged in the area, including some who had recently murdered other Black citizens.

In the minutes and hours that followed, those huddled inside were systematically slaughtered.

The first were killed on the perimeter, fired on by the cannon—left-over from the Confederate arsenal—just before the white supremacists torched the courthouse roof. Many burned inside after fire enveloped the building. Many others rushed from the courthouse, only to be shot in the back as they ran away, or when they were found hiding in nearby homes or surrounding woods. Others were taken prisoner, and then murdered in cold blood—shot point blank in the head.  The final death toll varies, but most accounts put it at between 80-100. (Lane reviews the various estimates, which range from 60 to as high as 400—Lane, pages 265-266).

Of those who’d laid siege to the courthouse, three died. At least two were killed by friendly fire.

Even though dead and mutilated bodies were strewn throughout the town, Colfax was sufficiently remote that it took days for the nation to appreciate the scale of the violence that had taken place in an American town. It then became front-page, national news—and yet more debate about who was to blame.

But President Grant didn’t “both sides” the massacre. He’d taken on Klan violence in recent years using both the military and recently enacted federal legislation he’d signed into law, and his administration continued that fight now. The federal government brought charges against a handful of perpetrators who they were able to identify and apprehend as leaders of the courthouse siege and grisly murders.

After two long and highly public trials in New Orleans, a jury found several of the defendants (including one Bill Cruikshank, a wealthy planter and well-known white supremacist who was identified as a key organizer of the slaughter) guilty, to face ten years in prison.

But weeks later, a Supreme Court Justice (who happened to be “riding the circuit” at one point in the second trial), reversed the convictions for violating the powers of the federal government under the Constitution.

Legal Background: The Federal Enforcement Act

The Constitutional dispute stemmed from the new federal law that prosecutors had used to bring accountability for the massacre.

In 1870, Congress passed and Grant signed federal legislation named the Enforcement Act—part of a broader set of laws that would be known as the Ku Klux Klan acts. By prohibiting two or more citizens from conspiring to deprive anyone of their various constitutional and civil rights, the Act’s intent was to define as new federal crimes the very type of organized, white supremacist violence that had been taking place in Southern states in recent years. That systematic violence had become an essential tool in efforts by former Confederates and growing white supremacist groups to stop the successful creation of diverse, Reconstruction-era governments in Southern States. The Enforcement Act and later laws were justified as part of new enforcement powers granted to Congress in the post-Civil War Amendments.

The first cases brought under the Enforcement Act not only affirmed it as a proper use of Congressional power, but applied it broadly to include groups of private actors (white supremacist groups such as the KKK) that had committed violence. In a foundational lower court opinion, one judge ruled that the Act protected Black citizens from not only discriminatory state actions (including legislation), but from state inaction that left Black citizens vulnerable to violence organized by private groups. From 1871 through 1873, under that logic, federal judges applied the new law to bring accountability for violent crimes in Alabama, Georgia and Mississippi. (Lane, 115)

So the opinion overturning the Colfax convictions marked a dramatic departure from those prior cases. But because it came from a sitting Supreme Court Justice, it threatened to eliminate the robust new tool that had been combating racist political violence in the South.

The United States appealed to try to claw back its ability to hamper that violence.

United States v. Cruikshank

After arguments in March 1875, the decision by the Court in the case United States v. Cruikshank came down in March 1876. To little surprise, it affirmed the Justice’s initial order overturning the convictions.

The first reaction on reading the opinion now is that the facts detailed above are hardly mentioned. Just a recitation of the 16 counts against the defendants in bland legalese. Only two victims are even named. You’d never know from the decision that this involved murderous political violence on a shocking scale.

After reciting those counts, the Court proceeds to dismiss every one for a host of reasons: Some counts in the indictment are deemed too vague. Others do not specify that actions being challenged were made “on account of the race of the parties against whom the conspirators were to act.” A number of counts failed to state sufficiently that a federal offense was committed, as opposed to a state offense.

Beyond the specific counts, the overarching theme of the decision is a broad-based rejection of the federal government’s power to hold private groups and individuals accountable for violence or other actions banned by the Enforcement Act. Private actions, the Court rules, are only for state courts and prosecutors to handle—they are not covered by either the United States Constitution (including the new Amendments) nor by the Enforcement Act of 1870. When it comes to the “rights” that the Colfax victims are seeking to have protected—that were violated by the violence of the defendants—the “people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.”

The Court explains: “The rights of life and personal liberty are natural rights of man. ‘To secure these rights’ says the Declaration of Independence, ‘governments are instituted among men, deriving their just powers from the consent of the governed.’ The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these ‘unalienable rights with which they were endowed by their Creator.’ Sovereignty, for this purpose, rests alone with the States.”

And, the Court announced, the new post-Civil War Amendments did not change this basic structure: “The Fourteenth Amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.”

And again: “The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society.”

Nowhere does the Court address the justification offered by the lower courts when they applied the Enforcement Act against private individuals and groups: as one judge had written, “denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection.” (Lane, 115)—which meant unchecked violence by private groups (and not stopped by state or local government) was exactly what the federal government had the power and duty to stop.

Without saying the words, the Supreme Court’s opinion in Cruikshank wiped away that justification.

Legal Ramification:

The legal ramification of the Cruikshank case, along with a number of other cases of the era, was to eviscerate the post-Civil War Amendments, the legislation that attempted to enforce them, and the right to vote more broadly. Later, a Democratic Congress repealed most of the Enforcement Acts altogether.

But within the long arc of Constitutional law, Cruikshank doesn’t rise to the prominence of better known cases such as Dred Scott or Plessy. I can attest from my own experience, most law students will learn little about the case but a few lines of black letter law.

The casebook I use for my Voting Rights course mentions Cruikshank once, on Page 3 out of 1226 pages, cited in support of the proposition that: “acts of violence designed to intimidate voters do not violate the Constitution if committed by private individuals, even though the acts may have the effect of preventing groups of people from exercising their constitutional rights.” Not one word about a massacre.

A second casebook from my bookshelf also mentions it one time, out of 1207 pages. Again, only a single sentence, but it does mention that “a white mob murdered a group of black voters in Louisiana” in a parenthetical summary of the case.

A third casebook (947 pages) doesn’t even mention the case at all.

The near disappearance of the case as a matter of law shrouds the real-word and political impact the decision rendered, which was devastating…

Real-world ramifications:

As Eric Foner summarizes, “the decision rendered national prosecution of crimes committed against blacks virtually impossible, and gave a green light to acts of terror where local officials either could not or would not enforce the law.” (Foner, 531).

Or as the Philadelphia Inquirer wrote at the time: the decision “breaks whatever force the Enforcement Act may have possessed.” (Lane, 246).

The complete lack of accountability for even such a public, proven and abominable explosion of violence rendered a predictable impact: ever more violence.

Even the initial ruling by the individual Justice (overturning the convictions) sparked a new round of violence in Louisiana, as white supremacists instantly felt liberated from the specter of accountability for crimes committed against Blacks. After that initial opinion came down, one newspaper applauded that the Black citizen would no longer be able to “invoke the strong arm of the Federal Government to protect him….” (Lane, 212). Violence predictably broke out in numerous states in the months that followed, usually around election time—and often (as intended) intimidating Black voters from showing up at the polls.

That violence only worsened over the long delay before the Supreme Court issued its final opinion in Cruikshank. Violence and anarchy became the norm in Louisiana, as large armed militia groups grew in size and their level of aggression. Another massacre took place in August 1874, climaxing into a near civil war over who would lead the state. After oral arguments for Cruikshank took place in March 1875, but before the decision was announced (the Justices went back and forth for the remainder of the year and into early 1876), the downward spiral continued, with a bloody election cycle taking place in Mississippi that led to murders of Black and Republican Party members and a sitting state representative. Again, no accountability.

And of course, after the decision came down in March 1876, violence only worsened in a pivotal election year.

In South Carolina, Louisana, and Florida, high-stakes elections were accompanied by violence, not only leading to murders but also impacting the outcomes due to depressed Black turnout. Not only did Democrats sweep back into power in numerous Southern states, but those outcomes led to the deadlock that sparked the infamous brokered presidential election in early 1877—where Southern Democrats agreed to seat Republican Rutherford B. Hayes as president in exchange for his removing the military from the Southern states where they remained. This also meant the handing over of power to Democrats in Louisiana and South Carolina—states that still had a black majority of citizens but would now be led by white supremacists (Lane, 248).

And there was one other very specific demand to which Hayes acceded: replacing the Louisiana U.S. Attorney who had prosecuted the Colfax Massacre. Even that attempt to hold the murderers accountable via a law passed by Congress was apparently too much to leave unpunished.

In the Southern elections that followed, both violence and fraud became commonplace as a way for these new governments to retain and maximize power. “The combined impact of mass murder and legal retrenchment made it easier for Southern Blacks to be gradually dispossessed of the political power they thought they had won in the Civil War.” (Lane, 251).

In 1888, one of the defendants let off the hook by the Cruikshank decision was elected Mayor of Colfax. (Lane, 256)

And once the Democrats (and like that new Mayor of Colfax, these were often the very ones who had committed violence in the first place) occupied offices of power up and down Southern government, thanks to Cruikshank, they were the ones who shouldered the sole duty to keep Black citizens safe. With that power and duty, they, of course, did nothing. Which meant systematic violence became the norm for generations—and the tool underlying generations of Jim Crow and non-democracy—while a federal government sat on the sidelines.

The Lesson, Then and Now: Accountability is Essential

While January 6 was clearly less violent than the Colfax massacre, it was an attempt to overturn the result of a presidential election, and it happened with the entire nation watching. In four years, no trial at all. So the signal being sent about lack of accountability at the highest level is just as clear.

And the sequence of events played out similarly to what happened after Colfax all those years ago:

Since January 6, we’ve seen increasing threats of violence against elected officials (and actual attempts at violence), as well as against those who do the hard work of running elections themselves.

Against this backdrop of growing violence, the nation also saw the US Supreme Court rule that a president can not be held accountable for acts even this lawless if they’re performed as part of his “official duties.” (The irony, of course, is that Cruikshank protected acts that were done by private groups, but the Court’s immunity decision this year takes the exact opposite approach, finding immunity for public acts).

And just as the prosecutor of the Colfax massacre was later removed for holding just a few of the perpetrators accountable…Trump and his cronies already openly talk about punishing those who dared try to enforce the rule of law following Jan. 6.

We should all worry that the similarities don’t end there. Unfortunately, Colfax taught us that without accountability for political violence, such violence continues. Those committing violence only escalate further. And that atmosphere of violence—and direct acts of violence—can set in as the new normal, and shape the politics of communities and the entire country going forward.

And Colfax also teaches us that allowing political figures and leaders to be held immune from accountability for fueling or engaging in violence—and arguing that we should simply “let the people decide” in the next election if they are sufficiently concerned about that violence—ignores the reality that that violence can and does itself shape, even alter, the outcome of that next election. And those that follow.

It sure did in 1876, and through decades of violence and non-democracy that followed.

History instructs us that those same risks are present now, and that we must work hard to avert even worse long-term consequences.

Of course, like clockwork, they will also work hard to bury and/or rewrite the history of January 6. Do not let that happen.