U.S. v. Cruikshank: 1875

After hearing both sides' arguments, the Court took a year to render its decision. Chief Justice Morrison R. Waite wrote the Court's ruling, issued in the 1875 October Term. Waite's opinion would stymie the federal government's ability to protect African-American civil rights for 90 years.

Waite began by reiterating the dual nature of American government:

We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other.

Waite then stated that the 16 violations of the 1870 act charged against Cruikshank and the others were really simple state conspiracy charges. The federal prosecution was thus unconstitutional. Even the most important charge, violating the victims' "right and privilege peaceably to assemble together," was really a violation of state rights. If the victims had assembled to "petition for a redress of grievances," or some other right specifically granted by the Constitution, then perhaps a federal prosecution would be permissible. Waite refused, however, to give the federal government jurisdiction over any civil rights violation not specifically covered by the Constitution:

This [case] is nothing else than [an allegation of] a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana.… Sovereignty, for this purpose, rests alone with the State. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself.

Cruikshank and the others would thus go free. Through Waite, the Supreme Court had firmly endorsed the defendants' "state action" argument:

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.

Because the Court had essentially told people to go to their state governments and courts for protection, African-American civil liberties underwent a long eclipse, particularly in the South, from which they would not recover until the 1960s. The Court had turned a blind eye to the fact that in the South, state governments were de facto supporters of "private" racism such as the Ku Klux Klan and the lynch mobs. For African-Americans, state protection was no protection at all.

In the 1960s, the federal government enacted new civil rights laws and moved aggressively to enforce them. This time, in dozens of cases the Court consistently upheld the constitutionality of federal measures. The Court's change in attitude was due to the political upheavals of the time and the new majority of liberal justices. Obstacles such as the "state action" requirement of the Fourteenth Amendment were substantially reduced. Further, the Court allowed the federal government broad civil rights enforcement powers under other sections of the Constitution as well, such as the federal authority to regulate any conduct that even remotely affects interstate commerce. Cases like Cruikshank, however, had prevented the federal government from protecting civil rights 90 years earlier.