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New Orleans massacre of 1866

From Wikipedia, the free encyclopedia

New Orleans Massacre
Part of the Reconstruction Era
RiotInNewOrleansMurderingNegros1866.jpeg
The massacre in New Orleans – murdering negroes in the rear of Mechanics' Institute ; Platform in Mechanics' Institute after the riot, Harper's Weekly, 1866
Date July 30, 1866
Location New Orleans, Louisiana
Caused by Louisiana State Constitutional Convention
Resulted in Martial law declared
Parties to the civil conflict
Ex-Confederates, white supremacists, and members of the New Orleans Police Force [1]
Anti-Racist marchers
Casualties
150 total, 34 African Americans killed, and 3 Whites killed

The New Orleans Massacre of 1866 occurred on July 30, during a violent conflict as white Democrats including police and firemen attacked Republicans, most of them African American, parading outside the Mechanics Institute in New Orleans. It was the site of a reconvened Louisiana Constitutional Convention. The Republicans in Louisiana had called for the Convention, as they were angered by the legislature's enactment of the Black Codes and its refusal to give black men the vote. Democrats considered the reconvened convention to be illegal and were suspicious of Republican attempts to increase their political power in the state. The riot "stemmed from deeply rooted political, social, and economic causes,"[2] and took place in part because of the battle "between two opposing factions for power and office."[2] There were a total of 150 black casualties, including 44 killed. In addition, three white Republicans were killed, as was one white protester.[3]

During much of the American Civil War, New Orleans had been occupied and under martial law imposed by the Union. On May 12, 1866, Mayor John T. Monroe was reinstated as acting mayor, the position he held before the war. Judge R. K. Howell was elected as chairman of the convention, with the goal of increasing participation by voters likely to vote Republican.[4]

The riot expressed conflicts deeply rooted within the social structure of Louisiana. It was a continuation of the war: more than half of the whites were Confederate veterans, and nearly half of the blacks were veterans of the Union army. The national reaction of outrage at the Memphis riots of 1866 and this riot nearly three months later led to Republicans gaining a majority in the United States House of Representatives and the Senate in the 1866 election. The riots catalyzed support for the Fourteenth Amendment, extending suffrage and full citizenship to freedmen, and the Reconstruction Act, to establish military districts for the national government to oversee areas of the South and work to change their social arrangements.

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  • Kenneth Mack | The 14th amendment: its radical past (and future?)

Transcription

MARK TUSHNET: I want to welcome you to the final lecture in the series from this semester on Diversity in US Legal History. Before I turn the program over to Professor Mack, I do want to mention or confirm something that I mentioned at the prior session, which is that there will be a successor series of lectures next semester. That title is going to be I think something very close to Issues of Diversity and Social Justice in the first year courses. And there will be a series of lectures starting on February 2nd on sort of week by week, one of basic first year courses and how issues of diversity and social justice could be introduced to that. Just a note for anybody who's interested, there'll be an associated seminar in which the sort of writing project for each student will be to develop a unit on some first year subject matter and figure out how to introduce issues of diversity and social justice into teaching consideration. I have no idea how you would do that. But a student would do it or Holy Trinity in leg reg, holy trinity and issues of diversity and social justice. That's actually pretty straightforward. In any event, there'll be an announcement about the seminar and about the lecture series as time goes on. OK, so the final lecture is by Professor Ken Mack, who's going to talk about the radical past and perhaps future of the 14th Amendment. KEN MACK: OK, first, the volume OK? All right, first I'd like to thank Dean Martha Minow for organizing this lecture series, a much needed thing in our difficult times we're in right now. I'd like to thank Teresa Ellis for her help in organizing it as well and of course I'd like to thank my colleague Mark Tushnet, the distinguished legal historian, for helping put it together. Today I'm going to talk about what I call the radical past and I don't know about future, but certainly the radical past of the 14th Amendment and what I'm going to try to do is to recover a different tradition of the 14th Amendment from the one that we learned in constitutional law, one that's much more difficult to accommodate, both within our constitutional struggle and within our racial politics. And I'm going to just to kind of put my cards on the table, I'm going to do a lot of history because I'm a historian. That's kind of what I do. But I also think that history is very relevant for our present times and just so you kind of know where it's heading, we tend to think of the 14th Amendment as involving things like school segregation, marriage equality, for those of you who are really into con laws, things like incorporation and fundamental rights, things that my colleague Mark knows much better than I do. But you know, I'd actually like to recover kind of a different tradition than the one that we learn in con law, one that has been there from the beginning but that we don't learn much about. So I'm going to talk about it today. Now first just to kind of get some things out of the way, our traditional interpretation of where the 14th Amendment came from. Now I did have a slide with the text of the amendment and all that but I'm going to skip that I'm going to assume that you all, being mostly law students know what the 14th Amendment is and kind of maybe what's in it, our traditional narrative of the origins of the amendment framed in 1868 by Congress, ratified by the states between 1866 and 1868 goes like this. That after the Civil War you've got almost 4 million freed slaves in the American South. You have a society in which was actually a slave society, and all of a sudden these folks are free. And the question is, what do you do about them? We have a war that's just been fought, the bloodiest war in American history. And we have the former Confederate states which are being perhaps reintegrated into the United States. Well you know, emancipation has happened. So the legislatures have to decide what they want to do about the freedmen. That was the term for the freed African American men and women in the South. They have to decide what they're going to do about the freedmen. And the first thing that they do, starting with Mississippi in late 1865 is exact things called the Black Codes. The Black Codes were statutes to define the basic rights and duties of let's say citizens of Mississippi or citizens of Alabama. And what they did is they defined contract and property and basic rights for freed slaves but they defined them racially. There were a set of kind of white rights and there were a set of black rights, and by statute they were defined separately. So traditionally, when we think about the narrative of the 14th Amendment, where did it come from? We start with the Black Codes. And in response, Republican members of Congress were not particularly happy with this. White Northerners were not really happy with this. In response, Congress passed something called the Civil Rights Act of 1866, which is our first federal civil rights law. We know it today, portions of it are codified in 42 USC Section 1981, 1982, and 1983. Those of you who've been in my property class know section 1981 and 1982. They were on the exam. These are two of our basic, some of our basic civil rights statutes. They come from the 1866 Act. And our operative term is that the statute defines a set of basic rights of citizens and they have to be the same rights as are enjoyed by white citizens, so that they overturned the Black Codes. You can't have a set of contract and property rights for whites and a different set for African Americans. And Congress had some doubts about whether the 66th Act was constitutional. So what Congress did is it passed the 14th Amendment, which contains the clauses and phrases that are familiar to us due process, equal protection, and the like. And then later on Congress reenacted the 1866 Act to make sure that it was constitutional, promulgated under its 14th Amendment power. So that's our traditional narrative of how we got to the 14th Amendment. And it's a hopeful narrative, right? It's a narrative that brings us up to today to things that many of us in this room think of as advances. It's a progressive narrative, right? It's a narrative that starts from things that are not so good and ends with things that are good. Our traditional narrative of the 14th Amendment was, well you know, there's been this persistent question about what the 14th Amendment means. The US Supreme Court first took up that question in a case called The Slaughterhouse Cases, which you'll find in lots of or case books. And its initial answer was, it meant very little, very few rights had been federalized by these general phrases like privileges and immunities. And indeed, famously in Plessy versus Ferguson, again read the 14th Amendment narrowly. A challenge to a railroad segregation statue to Louisiana, it did not violate the 14th Amendment. Again very few rights have been nationalized by the 14th Amendment. But then we get to our more hopeful parts of the narrative, Brown versus Board of Education of course. And Obergefell versus Hodges, marriage equality. And in the pictures of course, James Obergefell, sitting next to my law school classmate and my former co-clerk, James Essex. You know if I'd done what James did you know I could sort of sit down and think that, OK, I made the world a better place. But this is a hopeful narrative right? We move from something that is less hopeful to something that is more hopeful. It's a narrative of a progressive interpretation of the 14th Amendment, meaning progress. It's a narrative of the United States getting better over time through the means of the 14th Amendment and other means as well. So you know I'd like to start with a different narrative as I said, a more radical and difficult to accommodate narrative of what the 14th Amendment meant and means. In my narrative, I actually want to start with violence. In 1865 and 1866 when the 14th Amendment was first proposed, framed, and sent to the states, what most Americans observed was violence. It was a violent era, violent in many, many different ways. We've got two pictures here. This is a famous engraving from Harper's Magazine about the Ku Klux Klan. The one on the left is actually a black militia in Alabama. Reconstruction was a very violent time. As we'll find, there were lots of different responses trying to invoke federal jurisdiction. Another response was to try to invoke, try to form, militias to protect basic rights. The violent origins of the 14th Amendment starting in 1865 and 1866 would go this way. The boundaries between wartime and peacetime were porous. The bloodiest war in American history had in fact, in many ways spilled over into peacetime. Difficult challenges to civil liberties abounded. And in fact, as we;ll find, there seemed to be no end to the wartime violence. The other thing that had happened was Abraham Lincoln had been assassinated. And the person who replaced him was his vice president, Andrew Johnson. Andrew Johnson was someone who no one expected to be president of the United States, but suddenly he was. Johnson was somebody who people thought did not have the temperament to be President of the United States, and suddenly he was. But Andrew Johnson also was the person who was going to be in charge of safeguarding minority rights for people at the margins of American society. And there was deep, deep skepticism that he would. The third context of course is violence. State violence against freedmen, widespread murders, burnings of schools, homes. And these are the kinds of things that Americans were thinking about when they framed and ratified the 14th Amendment. And one of the most difficult and I would say radical challenges of the 14th Amendment was, what and how does it apply to state violence? For instance, I don't know, in the very same week, that Congress introduced the provision, the language that would become section one of the 14th Amendment, this was happening the Memphis riot of 1866. What was the Memphis riot of 1866 that occurred from May 1st to May 3rd of that year and involved confrontations between African Americans and police officers. There had been a long tradition of complaints about police brutality in Memphis. And Memphis, as I said, the story of armed African Americans is kind of all over this story. In Memphis there also happen to be a whole bunch of black Union troops who were being demobilized in the city. And there were a series of confrontations between the black troops and white police officers. And after this these confrontations, mobs of local whites formed, about a quarter of whom were local police officers and firefighters and proceeded to murder 46 local African Americans and burned 89 of their homes. Amid public outrage, the Attorney General of the United States concluded that there was no basis for federal jurisdiction over the crimes and state authorities declined to act. The following month there was the New Orleans riot of 1866. As you can see, a theme emerges, in which a white supremacist mob attacked a political gathering where black residents were trying to organize in advance of a State Constitutional Convention. And the mob killed more than 35 of them. And of course, the years of 1865 to 1866 were the years in which the Ku Klux Klan was formed although it would take about a year or two for it to embark upon the violence for which it is most well known. So this is the context in which the 14th Amendment was being framed and ratified by Americans. But for the 14th Amendment to be applicable to this kind of a thing was going to require a radical move I will contend, radical in the sense that all of these things I've just described are ordinary state law crimes, murder, arson. These are state law crimes. And what gives the federal government the power to act in response to the state law crimes, or does the 14th Amendment give the federal government the power to act in response to state law crimes? This is a theme that we still are struggling with. Many of you know the case of Morrison versus United States from the year 2000 when the Supreme Court invalidated portions of the 1994 Violence Against Women Act under the Commerce Clause. There is a continuing dialogue about federal power to criminalize things are local. And if in fact the 14th Amendment applied to things like this, it would require a radical revision of the constitutional structure of the United States. But second I think and more problematic, what was radical about trying to apply the 14th Amendment to this kind of stuff was that it would require a revision of racial politics in America. In fact, there had been a long tradition of localized violence against African Americans. There had been a series of anti-black riots in the north, including one in my hometown of Harrisburg, Pennsylvania. The first Black Codes were not the ones that Mississippi and Alabama, enacted in 1865 and 1866. They were enacted by before the Civil War by states like Illinois and Wisconsin and Indiana, to define local black rights separately from local white rights and to define a lesser degree of protection by local law for African Americans. So there had been a long tradition of localized actually racial violence in the United States. There hadn't been that much of a remedy. And the 14th Amendment potentially might have provided one. Or at least these are the things that Americans were debating between 1866 and 1868. They were outraged at things like the New Orleans riot of 1866. They framed and ratified the 14th Amendment in the context of that outrage. But then there was this question of whether this radical interpretation of the amendment would hold. Well as I said, very, very controversial thing. African Americans in the period 1865 and 1866 began to demand national rights protected by the national government. This is John Mercer Langston. He's a lawyer, one of the first African American lawyers in the country. This is what he said in 1864. He said, the Negro demands absolute legal equality, demanding a series of rights, the same rights that white citizens held. And what's implicit in this paragraph is demanding this of the national government. And then in a year or two, added to the list of demands would be security of persons or property. Now as the 14th Amendment was being debated, members of Congress understood that there was this big issue. What did the 14th Amendment do about local institutions, local institutions that everybody understood in the North did not protect African Americans? The right to vote we know, as we know, we keep knowing, over and over and over again is quite localized, controlled locally traditionally, in American society. After the Civil War, you know there was a referendum on the right to vote in several Northern states and it did not pass. New Jersey for instance, a state I lived in for quite a long time ratified the 14th Amendment and then they unratified it. Yeah, they unratified it. The Jersey refused to ratify the 15th amendment until the middle of the 1870s. There was a long tradition of local non-protection of African Americans in the North so Senator Lyman Trumbull says this, I'm sorry, this isn't a debate about the Civil Rights Act of 1866. He says, this bill in no way interferes with the municipal regulations of any state which protects all alike and the rights of persons and property, saying that this doesn't interfere with local institutions. It would have no operation Massachusetts, New York, Illinois, or most of the states of the union. It only is operative in the states where local institutions refuse explicitly to protect African Americans' basic citizenship rights. He's trying to reassure white Northerners that their own institutions are not going to come under attack through the 14th Amendment. Because of course, this is what the 14th Amendment potentially does and this would be a radical interpretation of the 14th Amendment. This is in fact what John Mercer Langston is sort of asking white Americans to do and it's quite controversial. OK, so this phrase he uses, municipal regulations or municipal law, it's actually kind of all over. If you read Plessy versus Ferguson, it's in it. If you read the civil rights cases it's in it, all these cases where the Supreme Court has to interpret the reach of the 14th Amendment after the Civil War. All these cases involved how much the 14th Amendment deferred to local institutions. OK, so everybody understood that these were the stakes after the Civil War, right? That there's rampant violence against African Americans in the South, that violence in fact helps prompt the passage of the Civil Rights Act of 1866 and the 14th Amendment. And the question is, was there power, was their federal power to do something about it? And if there were, that would be a quadratic answer to what did the 14th Amendment do. Well you know the Supreme Court takes a few years but it finally gets into the act of deciding this question. And it decides it in a case called Blyew versus the United States in 1872. Now in most con law case books, if you find the citation for the first major interpretation of the 14th Amendment by the United States Supreme Court, you don't find this case. You find a case called the Slaughterhouse Cases, which is a year later in fact this was the case where the Court quite resolutely indicated what it was going to do about the radical potential lodged in the Civil Rights Act of 1866 in the 14th Amendment. The facts were horrific. After attending a Democratic Party rally in Kentucky. In the 19th century the Democratic Party was the party of white supremacy. After attending a Democratic Party rally in Kentucky, two white men went to the home of a black family proceed to hack most of them to death with an axe. Two of the children escaped, a 10-year-old boy named Richard who crawled to a neighbor's house and was able to give testimony, which was written down and which he signed and then he died. Actually I'm sorry there were three children. Richard signed a statement and then he died. There's a 10-year-old girl who hid under a bed so she was not hacked to death. And there was a six-year-old girl who was hacked but who survived and was permanently disfigured. These were the facts of the case. There was a prosecution brought against the two people who did this. But there was not a prosecution brought under state law. And you might ask why. Well two reasons, one, this was a series of incidents in which everybody understood that local institutions did not protect African Americans from violence. In fact local institutions were often complicit in the violence against African Americans. And in Kentucky, the traditional rule about testimony in the South was that African Americans could not testify against whites in court. It's after the Civil War. Kentucky retains the old rule. So that if the case goes to trial in the state court Kentucky, our only two surviving witnesses who are able to give statements are Richard, who delivered the signed statement before he died and the 10-year-old girl, neither of whom will be allowed to testify against whites in state court. So they bring a federal criminal case. But you might ask, how can he bring a federal criminal case? This is murder. It's a state law crime. Well, it turns out that they can bring a federal criminal case because of what the Civil Rights Act of 1866 looks like. Civil Rights Act of 1866 has a couple of provisions that might interest us. The one that today is codified in section 1981 and 1982 talks about contract and property rights. That's the one that we mostly focus on. But it also had this language here. Citizens shall have the same right to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens. Now that phrase was deliberately put there because of what was happening in 1865 and 1866. There was not security of persons and property for African Americans in the South. And the Civil Rights Act of 1866 had a jurisdictional clause which said, district courts in the United States shall have cognizance of all causes civil and criminal affecting persons who are denied or cannot enforce any of the rights secured to them by the first section of this Act. So if your case affects persons whose rights cannot be secured by the first section, then the district courts have direct jurisdiction over your case. Of course the African American family could not be protected in the state courts because of Kentucky's testimonial rule and because, you know, there was limited willingness to do it. Therefore, there could be a prosecution brought directly in the federal district court. Well, this was the case and this is how they got into federal court. And in fact, the two men were convicted and sentenced to death. But the state of Kentucky decided that it wanted to challenge the constitutionality of the Civil Rights Act of 1866. It did and it got its case all the way to the u.s. Supreme Court where it was called Blyew versus the United States. and this is what the Supreme Court decided. It decided this, that you had to be an affected person to bring a case, to have your rights protected under the Civil Rights Act of 1866 under Section three, you had to be an affected person or affecting persons. And the US Supreme Court said this, well there's a whole bunch of affected persons, but they're all dead. You know it's a prosecution for murder. Murdered people are by definition not present in court because they're dead, so you can't vindicate their rights through this statute. I say to my students, these are the reasons people kind of hate lawyers. We work with language. And they're working with the language. And this is the construction. But what they're really saying is, they're answering this much more radical question that I put on the table earlier. They are asking this question of how much of the protection of basic citizenship rights of racial minorities are protected under the 14th Amendment. And they're saying very little. So one year before the Supreme Court decided the Slaughterhouse Cases, they're basically telling you where they're going to go. They don't want these cases in federal court and they don't want the basic protections of citizenship to be accorded African Americans through the US constitution and federal law. They want it to be state law. And in state courts, everybody understands that to leave this to local institution is to leave African Americans subject to state violence. OK so I could basically do, and I'm just going to kind of just do a few snapshots, because I want to leave some time for questions. I could basically do the rest of the 14th amendment's history, the reconstruction of the beginnings of the civil rights movement, basically through cases of state violence. And the question over and over and over again of how much is this violence is cognizable under the 14th Amendment? So I'm just going to do a few snapshots and then we're going to do some Q&A. Here's the first one, Colfax massacre, yet another massacre, 1873, Easter Sunday 1873, Grant Parish Louisiana. In the aftermath of a disputed election a group of whites murdered more than 120 black men who had gathered in the Grant Parish Courthouse. State prosecution was not feasible because you know, you were in a regime of rampant violence in Louisiana. So several defendants were brought to trial in 1874 in New Orleans. They were brought to trial under two other federal statutes. After the Congress passed the Civil Rights Act of 1866, it also passed something called the Enforcement Act and the Ku Klux Klan Act in 1870 and 1871, both of which were attempts to try to get cases into federal court and protect basic citizenship rights through federal law. So a number of people were indicted for the Colfax massacre under the 1870 Enforcement Act. And what the federal court in Louisiana held and what the US Supreme Court eventually held when this case reached the Supreme Court under the name of Cruikshank versus United States was that in the indictments were invalid. They were invalid for two reasons. A lot of the stuff that happened in Grant Parish was state law murder. So 14th Amendment, Supreme Court held gave no power to assert federal jurisdiction over things that were state law crimes. State violence against African Americans once again, had to be adjudicated through the state courts, which everybody knew in Louisiana we're not going to protect African Americans. It also held that you had to allege kind of a racial motivation for the murders. And the indictments didn't. Technically the guys could have been reindicted, but everybody knew that this was the end. This image is of a book called The Day Freedom Died. it's a really good narrative book about the Colfax massacre. It's a good and chilling read. And the subtitle is The Betrayal of Reconstruction, which is more or less accurate. This is sort of the end of Louisiana reconstruction. In Louisiana it ends violently. In Alabama it ends violently. And given that it's clear that there's not going to be any federal prosecution of defendants in these kinds of cases, really the power to respond to the violence is not exercised and it continues. OK, so that's the snapshot number one. Snapshot number two, the NAACP and state violence. We tend to think of the NAACP as the biggest thing was in its history was Brown versus Board of Education and it was. But of course the NAACP, much of its history it was deeply concerned with state violence. The NAACP of course, was founded in response the 1908 Springfield riot, yet another riot, in which once again, mobs of whites attacked African Americans. This was one riot in particular in which the local authorities mostly tried to protect African Americans rather than being complicit in the riot. Before 1935, if you ask what was the work of the NAACP, the main work of the NAACP was to try to get an anti-lynching law passed a federal statute federalizing certain kinds of crime. This is our theme that goes all the way back to 1865 and 1866. And this is, as many of you know, this is Charles Hamilton Houston, 1922 Harvard Law School graduate, who is regarded as having laid the groundwork for Brown versus Board of Education. But Houston's first NAACP case, the thing that really kind of made his reputation in the NAACP was a case in which he traveled to Alabama under quite dangerous circumstances and wrote a 57 page brief calling for federal prosecution of an Alabama sheriff who was holding two black defendants and allowed them to be taken out of the jail and lynched. So the NAACP in its history was very much concerned and implicated with this narrative of state violence and what to do about it. Last one, let's see, almost last one Screws versus United States/ 1939 Frank Murphy, future justice of the United States Supreme Court is the Attorney General of United States. The Department of Justice creates something called the Civil Liberties Section now Civil Rights Division, and they begin to invoke federal law to try to prosecute local law enforcement officials who were implicated in state violence against African Americans. Screws versus United States involved Claude Screws, Georgia sheriff who was indicted under the 1870 Enforcement Act, once again, indicted under the 1870 Enforcement Act for beating a black suspect to death in advance of trial. The DOJ got a conviction. It was appealed to the US Supreme Court. The court held that prosecutors must prove that the sheriff specifically intended to interfere with a right protected under the 14th Amendment, meaning he beat him to death. But you have to prove in court that when he beat him to death he was thinking about his constitutionally protected rights. And he was beating him to death to prevent him from exercising them. Unlikely thing to be able to prove in court. Screws versus United States is routinely cited by the Department of Justice in rejecting NAACP petitions in cases of state violence. OK let me do one more slide and we'll sort of do Q&A. You know, what I've done is kind sketch out an alternative narrative of the 14th Amendment history, a narrative of which, in fact, from the beginnings, from the framing of the Amendment through its ratification through most of its history, one of the concerns that Americans had was whether or not the amendment would be operative in cases of state violence against minority groups who did not receive adequate protection under local law or for whom local law enforcement was in fact implicated in violence. It's a radical interpretation of the Amendment because it's really difficult. It's going to challenge a couple of things are very fundamental about American society. But nonetheless, it's an interpretation that persisted and persists even after the Screws decision. If I want to continue this in the 1960s, I would talk about Chaney, Goodwin, and Schwerner, the three civil rights workers who were murdered during Freedom Summer 1964 for whom there was a successful federal prosecution. I would talk about a moment in the 1960s where the Department of Justice and civil rights groups decided that they wanted to really push for voting rights because doing anything about this was just too difficult and too contentious and too radical. I think to push voting rights is probably the right move, I think undoubtedly the right move. But it's also true that this kind of stuff was and remains just so controversial. So this is our last slide. This is Ferguson. I mean we kind of think of Ferguson and the 14th Amendment as being kind of separate from one another. The 14th Amendment is things like Brown or Obergefell but question. The image on this one over here, the Department of Justice has done two reports about Ferguson. You know the DOJ has entered into a number of consent decrees with local police departments around the country. And you might ask what gives the Department of Justice the power to do this? Local law enforcement is local. What power does the Department of Justice have to intervene in local policing? Well the power it has is actually derived from, my guess, the 14th Amendment and from the narrative that I have outlined here. So you know I kind of talked a little bit about the radical past of the 14th Amendment, this sort of narrative repeated invoking of the Amendment in cases of state violence against racial minorities and the uncertain history of that process. And when I said radical past and future question mark, I meant future question mark. I mean I think these are a set of arguments that we've been having for the past 150 years. I think they are a set of arguments we could continue to have at the future. But then again. I'm a historian. You ask about the future, I say I don't really know. I know a whole lot about the past. You all are clearly people who are thinking about the future. I think if this kind of argument has a future, it's probably going to be in the hands of people like yourselves. So thanks. [APPLAUSE] STUDENT: Thank you very much, Professor Mack. Just a historical question. In the aftermath of the Civil War there's tens of thousands of soldiers stationed in the South. Were they turning a blind eye to things like the Memphis and New Orleans riots? Were they complicit? Where were the soldiers who were purportedly keeping the peace? KEN MACK: There are three things. The soldiers are part of it. I would say there's three pillars that are protecting African Americans from state violence in the aftermath of Civil War. One was what I've been talking about. A number of the local district attorneys, federal attorneys, brought these cases and prosecuted people. There's something called the Great South Carolina Ku Klux Klan trials 1870 to 1873, dozens and dozens and dozens of prosecutions. Federal courts are overwhelmed in South Carolina. The second part of it was the Freedmen's Bureau, the temporary bureau that was set up to help freedmen. It actually had its own courts and it adjudicates cases like this. And the third prong are the federal troops. But I think the federal troops can only do so much. You know federal troops can keep order. They were a necessary part of this thing. But to make the thing work, you needed working institutions of law that were going to be able to do something about this. So they were there. They were necessary. They played a stabilizing force. They play a stabilizing role. But you needed a lot more. Oh and I'm sorry the other thing is the black troops too. I mean, it's really a big part of this narrative. There are black troops. Most of them are initially demobilized after a little bit, but you know, the Memphis riot happens because there are black troops in Memphis, which is a kind of really provocative thing. More questions. I STUDENT: I was just curious. As the Supreme Court started pealing back the layers of the Civil Rights Act of 1866, did Congress at any time try to maybe amend the language so that they could make it clear that maybe that's what the Supreme Court was going against their intentions? I guess it would depend on the kind of Congress they had, but I'm just curious about that. KEN MACK: I think the kind of thing I'm talking about, arguments have moments. I think the really deep and challenging and radical kind of argument, I'm talking about has a moment, and I think that moment is 1865 to, let's call it 1872. You know there's a moment in which Congress is trying to do something about this. It passes two more statutes. The action really isn't in the Civil Rights Act of 1866. I use the Blyew case just to show you sort of what the Supreme Court is doing. But the action is in the 1870 and 1871 statutes, portions of which are still on the books. And you know Congress does act. And there's been lots of scholarship under this. The local federal attorneys did bring lots of prosecutions under the 1870 and 1871 statutes. But what really happens is after Blyew versus United States and after the Slaughterhouse, those prosecutions tail off because the Supreme Court has indicated very clearly that's going to read the statutes quite narrowly. And by that time, I think the national will to do anything about this is gone. So there's a moment where there is some national will, but that national will doesn't last very long. STUDENT: Thank you very much. It seems that part of this narrative is about attempts at federal prosecution and federal involvement for what are ostensibly state law crimes and kind of throwing things against the wall and seeing what sticks. And not much sticks for a long time. What would you see as the turning point in terms of at least the Supreme Court's shift? Is it about invoking federal criminal laws through Commerce Clause and other means? Is there a shift in kind of the Court catching up with the times? KEN MACK: You mean shift-- shift in which direction? STUDENT: At some point the federal government is able to get these indictments, is able to get convictions that stick on appeal. And where does that shift happen and how? KEN MACK: Convictions that stick on appeal. STUDENT: Even when some of these early examples even after that was a conviction in the district court, they're getting thrown out later. KEN MACK: Some of them. STUDENT: Some of them. So the Supreme Court seems to be reluctant to go down this road. KEN MACK: Yeah they're reluctant to go down this road. In my narrative of the Supreme Court, I'm never very hopeful about this. Frank Murphy is the person who helps create the Civil Liberties Division of the Justice Department. They start bringing these cases. Mark Tushnet has a nice little couple of pages about this in his biography of Thurgood Marshall. But you know, Murphy is actually on the Supreme Court by the time they decide Screws versus United States. I just think there has never been that much will on behalf of the court to do this kind of thing and just to tell you the truth I mean there's lots of narratives about the Supreme Court and why it's willing and not willing to do certain kinds of things. And I think there would have to be national will for this kind of thing to happen. And the Court is not going to be out in front of public opinion on an issue like this. And you know, I think part of the debate we are having right now is you know is there some national will to do something about this? And you all have to draw your own conclusions about whether you're hopeful or pessimistic about the answer to that question. STUDENT: Thanks, Professor Mack. I guess one thing that this reminded me of, there was a scholar named Robert Cover who talked about the violence of the law and how interpretation often leads to violence being condoned. And it seemed like this was a great illustration of that. But my question was more about moving forward, thinking about pattern and practice investigations in places like Ferguson. Do you see that as a viable alternative to this type of litigation? Because of course as you just described with Ferguson, there were two investigations, and the pattern and practice investigation is the one that was lauded as a viable replacement. So Attorney General Holder almost states that, yes, we're going not be able to get there using the traditional case law which you outlined. But here we have this new tool of a pattern and practice investigation that can allow us to use the consent decree process. And almost saying that this is a victory and in a sense it's better to have the pattern and practice successes than the individual convictions. Because now you're working with systemic problems as opposed to holding individuals accountable. So do you agree that it was a fair trade in Ferguson or do you see the pattern and practice investigation as a viable alternative? KEN MACK: I tend to be a bit of a pragmatist about these things, regardless of what I said today. So yeah, I think that what the DOJ did in Ferguson is. Great I think given the limitations of the tools in their hands, that's probably about as good as you can do. I think it took a lot of courage to do it. I've read the Ferguson reports. Actually one of my former students. I mean this is the kind of work you guys can do. Now there's going to be a new leadership of the Department of Justice. And we shall see what the future brings. But one of my former students wrote the Ferguson report. I mean this is the kind of thing that will be available at some point for many of you to do. So yeah, I think that that's a nice pragmatic thing to do. I think the consent decrees they've entered into with various police departments around the country are also very nice and pragmatic thing to do. We're going to get real improvement out of those things. Although you know, these things, there's always a trade off. I mean there is a more systemic and deeper and historical problem. And that more systemic and deeper and historical problem is , I think one that few people, including Eric Holder's DOJ is, as good as they were on many things, are willing to take on without more national will to confront it. STUDENT: Thanks. MARK TUSHNET: OK. Thank you all. I hope you have profited from the series and I hope it will have some enduring effects on your education. Thank you. [APPLAUSE]

Contents

Tension builds

The state Constitutional Convention of 1864 authorized greater civil freedoms to blacks within Louisiana, but did not provide for voting rights for any people of color. Free people of color, who were mixed-race, had been an important part of New Orleans for more than a century and were established as a separate class in the colonial period, before United States annexation of the territory in 1803. Many were educated and owned property, and were seeking the vote. In addition, Republicans had the goals of extending the suffrage to freedmen and eliminating the Black Codes passed by the legislature. They reconvened the convention, and succeeded in incorporating these goals.[5]

Democrats considered the reconvened convention illegal, as they said that the voters (although then limited to whites only) had accepted the constitution. In addition, they argued legal technicalities: the elected chairman Howell had left the original convention before its conclusion and was therefore was not considered a member, the constitution was accepted by the people, and the radicals, only 25 of whom were present at the convention of 1864, did not make up a majority of the original convention.

On July 27, the black supporters of the convention, including approximately 200 black war veterans, met at the steps of the Mechanics Institute. They were stirred by speeches of abolitionist activists, most notably Anthony Paul Dostie and former Governor of Louisiana Michael Hahn. The men proposed a parade to the Mechanics Institute on the day of the convention to show their support.

The massacre

The convention met at noon on July 30, but a lack of a quorum caused postponement to 1:30.[6] When the convention members left the building, they were met by the black marchers with their marching band. On the corner of Common and Dryades streets, across from the Mechanics Institute, a group of armed whites awaited the black marchers.[7] This group was composed of Democrats who opposed abolition; most were ex-Confederates who wanted to disrupt the convention and the threat of the increasing political and economic power of blacks in the state.

It is not known which group fired first, but within minutes, there was a battle in the streets. The black marchers were unprepared and many were unarmed; they rapidly dispersed, with many seeking refuge within the Mechanics Institute. The white mob brutally attacked blacks on the street and some entered the building:

The whites stomped, kicked, and clubbed the black marchers mercilessly. Policemen smashed the institute’s windows and fired into it indiscriminately until the floor grew slick with blood. They emptied their revolvers on the convention delegates, who desperately sought to escape. Some leapt from windows and were shot dead when they landed. Those lying wounded on the ground were stabbed repeatedly, their skulls bashed in with brickbats. The sadism was so wanton that men who kneeled and prayed for mercy were killed instantly, while dead bodies were stabbed and mutilated.

— Ron Chernow, "Grant" (2017)[8]

Federal troops responded to suppress the riot, and jailed many of the white insurgents. The governor declared the city under martial law until August 3.

Approximately 50 people were killed, including Victor Lacroix.

National reaction: a Republican Congress

The national reaction to the New Orleans riot and to the earlier Memphis riots of 1866, was one of heightened concern about the current Reconstruction strategy and desire for a change of leadership. In the 1866 House of Representatives and Senate elections, the Republicans won in a landslide, gaining 77% of the seats in Congress.[9]

Early in 1867, the First Reconstruction Act was passed – over the President's veto[10] – to provide for more federal control in the South. Military districts were created to govern the region until violence could be suppressed and a more democratic political system established. Under the act, Louisiana was assigned to the Fifth Military District. Ex-Confederates, mostly white Democrats, were temporarily disenfranchised, and the right of suffrage was to be enforced for free people of color. Politicians associated with the riot were dismissed from office.

See also

References

Notes
  1. ^ New Orleans Massacre (1866)
  2. ^ a b Vandal (1984), p. 137.
  3. ^ Bell, Caryn Cossé (1997). Revolution, Romanticism, and the Afro-Creole Protest Culture in Louisiana 1718-1868. Baton Rouge, La.: LSU Press. p. 262. 
  4. ^ Kendall (1992), p. 305.
  5. ^ Kendall (1992), p. 308.
  6. ^ Bell (1997), p. 261.
  7. ^ Kendall (1992), p. 312.
  8. ^ Chernow (2017), pp. 574-575.
  9. ^ Radcliff (2009), pp. 12-16.
  10. ^ Johnson, Andrew. "Veto for the first Reconstruction Act March 2, 1867 To the house of Representatives:". American History: From Revolution to Reconstruction and beyond... University of Groningen. Retrieved 18 December 2016. 
Bibliography

External links

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