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August 11, 2005

Roberts Repeated Pro-Klan Arguments of Yore

The rightwing is furious that NARAL has accused John Roberts of defending violence against clinics.

But how else to describe a case where he argued that the federal government was powerless to stop sometimes violent anti-abortion protests blocking access to abortion clinics?

Roberts defenders would say he and the government were "only" making a statutory interpretation that the intent of an old Reconstruction law meant to stop Klan violence did not apply. But the history of the statute in question is one of conservatives dedicated to "states rights" defending the right of the Klan and other groups to terrorize all sorts of people. The argument may have been about the statutory and constitutional use of thsoe Reconstruction laws, but the intent was to license violent terrorism.

Let's go back to the first time the Supreme Court "interpreted" the statute, back in the 1875 Cruikshank decision. Despite its passage by the same Congressional leaders who approved the 14th Amendment, that Supreme Court decided it understood the "intent" of the 14th and 15th Amendments better than the elected leaders. Here's the story from an extensive more scholarly piece I wrote last year, after 100 blacks were murdered in Colfax, Louisiana in 1873 for defending their right to vote:

The Supreme Court threw out the ringleaders’ convictions in 1875, saying Congress could not criminalize private violence, even when the violence was motivated by the victims’ race, even when it was designed to prevent them from exercising their constitutional rights, and even when the states did nothing to punish the offenders. According to that Court, the 14th Amendment “adds nothing
to the rights of one citizen as against another.”...

Cruikshank put an end to the federal government’s drive to break white supremacy. Federal troops were withdrawn from the South, civil rights laws that had not been expressly invalidated fell into desuetude, and the pall of Jim Crow fell across the coming century. Lincoln’s vision yielded to justices who left a legacy of lynching, segregation, and white supremacy.

And for the next hundred years, the Supreme Court would claim that the federal government had no power to stop private violence used to deny individuals their rights under the law. And in an era when racist state violence was subcontracted out to private lynchers, that meant the Court de facto endorsed Jim Crow and declared that no federal law could touch the private violence. This was the legal basis on which southern racists opposed federal anti-lynching laws, saying they had the backing of the Supreme Court.

In 1971, the Supreme Court admitted in Griffin v. Breckenridge that the law's drafters never meant to restrict the law's reach only to government actions.

But in Bray, Roberts wanted to continue a century of crabbed, limited understanding of those Reconstruction statutes and limit them to race-based violence, even though nowhere in the Reconstruction statutes was the federal power to restrict private violence limited to race-based violence.

And his side won, continuing the legacy of the Supreme Court endorsing private violence, in this case against women rather than blacks, but the same general theme of the post-Civil War attack by the Supreme Court on those Reconstruction statutes.

So for those who might think the NARAL ads are inaccurate, their only problem is that they aren't harsh enough, since in historical context, Roberts position is the same ones made by defenders of the Klan for over a century.

Update: Some commentators seem to have missed the point. Many opponents of anti-lynching laws in the past said, well of course, lynchers should be prosecuted UNDER STATE LAW. Which is exactly what the government was arguing in the Bray case in regard to violent clinic people. But the problem in both cases was that state governments were not defending the rights at stake vigorously, so killing the federal law was part of licensing private violence.

Now, I'm not that opposed to Roberts compared to some other possible nominees. (See this post). But the history of the Supreme Court in subverting and undermining the Reconstruction Statutes is possibly the greatest legal crime in American history. When conservatives ape the same arguments used by those who defended Jim Crow, they should be ashamed.

On the substance of the law, I have great sympathy for the free speech rights of non-violent abortion protests and have applauded the refusal to apply RICO laws against them. But that argument should be done in the name of free speech, not using "federalism" arguments that are direct betrayals of the original intent of those who passed the Reconstruction statutes in question.

Posted by Nathan at August 11, 2005 07:48 AM