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April 07, 2005

Supreme Court: Mob Rule Central

Here is the liberal myth: that courts protect minority groups from populist attack. As Joe said in comments:

[B]ad as the courts have been and may yet be, they are better than populist hordes who think democracy means mob rule...I believe in the rule of law and I oppose violent action. It was violence that ruled in the South in the time of slavery, Jim Crow and lynching. And violence rules in lawless lands around the world with ineffective governments and corrupt malfunctioning or nonexistent judiciary systems.
What most progressives won't accept is that the US courts, like the similar anti-populist Senate filibuster, have been the instigators of murder against blacks and have prevented the democratic majority from protecting their rights.

When the NAACP began campaigning early in this century for a federal law to ban lynchings of blacks, the majoritarian House voted as early as 1922 to ban lynchings (as they would in 1937 and 1940), only to see the bill die in the Senate at the hands of a filibuster.

And how did the Senators justify their filibusters? That the Supreme Court supported their position that federal anti-lynching laws were unconstitutional.

And they were right. Want to talk about mob rule? Take 1873 when in Colfax, Louisiana, a disputed election led to the mass murder of over 70 blacks. The Reconstruction Congress had recently passed laws making such voting-related murders illegal under federal law and the President's attorney general (a position created under those laws to prosecute such racist attacks) brought over 100 indictments.

But within months, the federal courts dismissed the indictments, declaring that Congress lacked the power under the Constitution to prevent such private racist assaults. And in 1875, the US Supreme Court agreed in U S v. Cruikshank that mobs were free to murder at will in the South and Congress was barred by the Constitution to stop it. Quote the Supreme Court:

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 [add] any thing to the rights which one citizen has under the Constitution against another.
Since the Colfax murders involved private action, not state government actions, the Congress could do NOTHING to punish them and the Reconstruction laws banning mob murder of blacks were de facto struck down.

These words by the Supreme Court were probably the most important in American legal history, since they overturned the results of the American Civil War, handing victory for the next century to Confederate mobs in the South who would drive blacks from the voting booths under the threat of lynchings and murder and impose an American Apartheid.

And note, the 1875 Cruikshank decision came a year BEFORE the 1876 Presidential election. White mobs were greenlighted to steal elections across the South, which led to the deadlocked results of that year-- which in turn led to the dismantling of military Reconstruction in the South.

But by that point, the military presence was irrelevant since the Supreme Court had barred the federal government from doing anything to stop the violent overthrow of the Reconstruction-era state governments.

To repeat, it was the Supreme Court which instituted racist mob rule in the south for the next century and protected it under the color of the federal constitution. So don't talk to me about the importance of an "independent judiciary" given a century of blood and mass murder on the hands of the US Supreme Court.

And that sanctioning of private violence has not died in the modern era. When Christy Brzonkala was raped in Virginia in 1994 and the state refused to indict her rapists, she sought to sue her assailants under the new federal Violence Against Women Act (VAWA). But the Supreme Court in its 2000 U.S. v. Morrison decision threw out her case and struck down VAWA as unconstitutional, actually quoting Cruikshank to the effect that the Fourteenth Amendment "adds nothing to the rights of one citizen as against another."

Liberals need to get over their Warren Court nostalgia and face the reality that courts have no inherent value as checks on democratic power-- in fact, their track record is of far worse hostility to minority rights than the democratic branches of government.

Read more here.

Posted by Nathan at April 7, 2005 08:51 AM