THE KU KLUX KLAN ACT OF 1871

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Undisputed Legal 

The Enforcement Act of 1871, known as the Ku Klux Klan Act, is an Act of the United States Congress that motivated the President to suspend the writ of habeas corpus to counter the Ku Klux Klan (KKK) as well as other white supremacy associations. The legislation was passed by the 42nd United States Congress and was ratified by the 18th United States President Ulysses S. Grant. The Compliance act was the second of three enforcement acts enacted by the United States Congress from 1870 to 1871 to tackle attacks on African Americans’ suffrage rights and protections during the American Civil War. Since then, the law has only been changed marginally but has been subject to wide interpretation by the courts after initiation.

This Act was ordered by President Grant and was approved soon after he released the request for its passage. Based on the news he was getting of systematic racist threats in the Deep South, Grant tried to preserve African-Americans’ rights. However, he believed that he was required to acquire more control before instilling impact sufficiently to eliminate overt discrimination. For the first time, the president was free to eliminate state disorders on his own initiative and temporarily stop the right of habeas corpus. Grant did not falter in utilizing this power on several occasions during his administration. Consequently, the KKK was entirely disbanded (ending the “first Klan” era) and did not resurface in any significant way until the beginning of the 20th century.

Several of the act’s guidelines continue even as public policy. The most significant of these protections is 42 U.S.C. § 1983, the statute banning human rights deprivation.

[1.0] BACKGROUND IN THE FIRST ENFORCEMENT ACT

The Enforcement Act of 1870, also known as the Civil Rights Act of 1870, allowed the President to implement the Fifteenth Amendment’s first part across the United States. The Act was the first of three Enforcement Acts created by Congress in 1870 and 1871 to confront challenges to African Americans’ voting rights from state officials or rampant groups like the Ku Klux Klan.

The Enforcement Act of 1870 banned voter registration discrimination on ethnicity, color, and prior servitude. The law created sanctions against individuals restricting elections and granted federal courts the authority to implement the law.

The Act also allowed the President to deploy and sanction the army’s use to guarantee the Act’s compliance and the use of federal marshals to bring proceedings against criminals for electoral abuse, the bribery or coercion of electors, and conspiracies to discourage people from practicing their constitutional rights.

The bill was enacted to secure people’s ability to vote depending on their race.

[2.0] OBJECTIVE OF THE ENFORCEMENT ACT

The Ku Klux Klan Act was the third in the set of Enforcement Acts intended to secure the civil and political rights of four million former slaves then freed. The 14th Amendment, passed in 1868, granted citizenship and fair rights under the law to everyone. However, racial vigilantes like the Ku Klux Klan disrupted the South’s Restoration and even undermined the Republican Party. 

Thus, the President was authorized to intervene in the former rebel states that wanted to deprive ‘every individual or any class of people of the laws’ fair treatment.’

 By penalizing the newly identified federal offense, the President could revoke habeas corpus, impose martial action, or use military force. Opponents to the bill rallied outcry against the law, citing the grounds that it encroached on states’ privileges and breached private freedoms. All the federal government’s control has one individual also emerged as a major concern.

 However, support for the doctrine was also widespread.    Supporters quoted the maintenance of fair treatment promise under the law by fostering equality in the law as ensured by the 14th Amendment. After both the Senate and the House approved the measure, President Ulysses S. Grant signed it into law. Six months later, in October 1871, Grant exercised these forces in many South Carolina counties showing the Republican-led federal government’s ability to use drastic measures to secure the civil and political rights of the freed citizens.

[2.1] HISTORY OF THE THIRD KLAN ACT 

Many states disapproved of the KKK to practice through other channels. Laws were set into motion to outlaw the KKK completely. Numerous members of the KKK were convicted and charged in federal court. The Klan was militant in its public stance after the federal charges report and later somewhat withdrew from the public eye.

In January 1871, a legislative hearing was convened in Congress for KKK witnesses to provide their testimonies. In February, a bill was proposed by Republican Congress Representative Benjamin Franklin Butler of Massachusetts aimed to uphold both the Fourteenth Amendment and the Civil Rights Act of 1866 in a novel anti-Klan bill. 

However, Butler’s bill was narrowly thwarted in the Senate, whereupon a replacement bill was proposed that marginally modified the scope to be not as comprehensive as Butler’s bill. This bill forced a few holdout Republicans into line, and the bill’s passage in the House, Senate, and the signing off by President Grant signified its popularity.

[2.2] HOW THE LEGISLATION WORKED

A. SECTION 1 OF THE ENFORCEMENT ACT

Section 1 of the Act, which has since been amended and codified at 42 U.S.C. § 1983 and is now known as ‘Section 1983’, authorized monetary and injunctive relief against anyone acting under the authority of state law, deprived a person of their constitutional rights. Section 1983 is the most prominent and commonly litigated civil rights statute. 

Under Section 1983, monetary damages could be awarded to those individuals for whom a State actor had violated the constitutional rights. Ordinarily, violations of constitutional protections are rectified through injunctions by court orders.  

Owing to this precedence, if a person’s right to due process was violated by a correctional officer acting under the state’s authority, this person could sue the guard in civil court for monetary damages. Without the basis in § 1983, such an individual would need to seek a civil suit for the constitutional violation. The major issue with such an operation by the tribunal would be that injunctions, which instruct a party on penalty of contempt if a party does not perform or refrain from performing some action, cannot be used to alter events from the past, only wrongs in the future. Thus, it leaves the individual in a position where the plaintiff has brought an actionable claim with no adequate remedy.  A lawsuit may be brought by anyone seeking the legal cause of action right.

Circumstances changed in 1961 when the Supreme Court articulated the statute’s three important purposes were [A. ]to over-rule particular kinds of state laws  [B.] to provide a remedy where state law was inadequate; and [C.] to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.

Section 1983 enables citizens to file suit to remedy some of their federally protected rights, like the First Amendment and the Due Process Clause, and the Equal Protection Clause of the Fourteenth Amendment. Section 1983 can be used to enforce violated constitutional rights, such as to protect against discrimination based on race, color, national origin, sex, and religion.

B. SECTION 2 OF THE ENFORCEMENT ACT

Interestingly, this Section of the Act was so long that it was addressed separately, and it received more attention from Congress during the debates. The law prohibited conspiracies against the U.S. government, actions that would put the nation at war, and various other violations. 

Section 2 originally provided for both criminal and civil liability. However, the criminal aspect of the provision was found to be unconstitutional, and therefore, was eventually overturned by the Supreme Court.

The federal civil liability portion of the law was codified at Title 42, United States Code (U.S.C.) § 1985. Section 1985 allows for lawsuits against people who conspire to interfere with the government, obstruct justice, or deprive someone of equal protection under the law.

Section 1985(1) encompasses conspiracies to expel a public official or a legislator from office violently or even prevent them from taking office in the first place or “molest, interrupt, hinder, or impede” officials’ duties.

Section 1985(2) addresses conspiracies to harm and/or threaten witnesses and jurors in federal courts or to interfere with court proceedings “with intent to deny equal protection of the laws.”

In response to the Klan’s practice of wearing masks and hoods that cover their faces, the legislation prohibits two or more people from wearing disguises or otherwise conspiring to deprive a person or class of people of equal protection of the law or legal rights. Furthermore, Section 1985(3) contains the “support-or-advocacy clauses,” which cover conspiracies to prevent citizens from expressing their beliefs and their support for candidates.

C. SECTION 6 OF THE ENFORCEMENT ACT

Section 6 of the Act imposes civil liability upon persons who know of a violation of Section 1985 or a planned violation of Section 1985 and who are in a position to prevent it but who fail to prevent it. Section 1986 deals with conspirators who deny people their rights, but Section 1983 deals with people who allow such conspiracies to exist. Legislators recognized that the Klan’s political violence could not continue without the tacit approval from local community leaders, who, in turn, were held financially responsible for failure to prevent such acts. This segment of the law is used to prevent terrorism in contemporary days by providing a disincentive for those who would protect or foster a conspiratorial terrorist act.

[3.] ERAS OF USE OF THE KU KLUX KLAN ACT

  1. RESTORATION ERA

During Restoration, federal soldiers were used to imposing the nation’s rule rather than individual state militias, and Klan members were tried in federal court, where the juries were predominantly African-American.   Hundreds of Klansmen were convicted, and habeas corpus was suspended in South Carolina. These actions were so successful that the Klan was defeated in South Carolina and decimated in the majority of the former Confederacy, where it had already been in decline for many years. 

The Klan would not reappear until its recreation in 1915. At their height, though, the ‘first age’ Klan did accomplish much of its targets, such as disenfranchising Southern African-Americans.  In its creation, the Grant Administration saw the legislation being utilized with the Force Act to provide justice against those abusing the Civil Liberties of newly freed African Americans. At the Grant Administration’s conclusion in 1877, regulation of the Act dropped into disuse, and few prosecutions were brought under the law for nearly a century.

  1. USE IN MODERN TIMES: PRESIDENCY OF DONALD TRUMP

Rep. Bennie Thompson, D-Miss, and the NAACP initiated prosecution against former President Trump and former Secretary of State and former New York City Mayor Rudy Giuliani for purportedly collaborating with white nationalist organizations and hate groups to occupy the Capitol and keep electoral votes from being counted in the Electoral College. The plaintiffs used the 150-year-old Enforcement Act statute to justify their assertion.

Thompson and the NAACP allege in the case that Trump, Giuliani, the Proud Boys, and the Oath Keepers used “intimidation, harassment, and threats” to halt the vote count and that the Jan. 6 Capitol riot was the result he was the basis for the breach that triggered the 1871 Ku Klux Klan Act.

In December 2020, the NAACP and Michigan Welfare Rights Association, along with a coalition of Detroit residents, sued President Donald Trump and the Republican National Committee under the Voting Rights Act.

The complaint claims that President Trump and the Republican Party orchestrated a concerted plot to manipulate the 2020 presidential election in Michigan, Georgia, and Pennsylvania by threatening election officials and volunteers.

In February 2021, the NAACP and the law firm  Cohen Milstein Sellers & Toll lodged another case listing Congressman Bennie Thompson as the defendant. Other congresspersons who were already victims joined up to suit.    The lawsuit charges breaches of the State Election Campaign Act relating to the 2021 polls. It further alleges a plot to incite unrest contributing to the 2021 storming of the U.S. Capitol.

[3.2] HOW DOES THE ENFORCEMENT ACT HOLD UP TODAY

While some clauses were deemed unconstitutional in 1883, the 1870 Force Act and the 1871 Civil Rights Act have indeed been invoked in subsequent civil rights confrontations.

The 1871 Civil Rights Act can protect individuals from state action whenever a federal right is violated. Today’s most common use is to demand that the Fourth Amendment be upheld in unreasonable search and seizure.  

The Enforcement Act was intended to give African Americans and those who supported the freedom efforts a federal cause of action, a right to a lawsuit for the deprivation of rights protected by the statute. Consequently, African-American rights activists and jurists have asserted the Enforcement Act’s applicability in the context of current issues, particularly after the insurrection at the Capitol. While the statute itself is rarely used, it is a powerful sanction against white supremacist groups.

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Sources

1. Third Ku Klux Klan Act, Civil Rights Act of 1871, or Force Act of 1871,

2. First Ku Klux Klan Act, or Ku Klux Klan Act (41st Congress, Sess. 2, ch. 114, 16 Stat. 140

3. The act developed from separate legislative actions in the House and Senate. H.R. 1293 was introduced by House Republican John Bingham from Ohio on February 21, 1870, and discussed on May 16, 1870.[5] S. 810 grew from several bills from several Senators. United States Senator George F. Edmunds from Vermont submitted the first bill, followed by United States Senator Oliver P. Morton from Indiana, United States Senator Charles Sumner from Massachusetts, and United States Senator William Stewart Nevada. After three months of debate in the Committee on the Judiciary, the final Senate version of the bill was introduced to the Senate on April 19, 1870. The act was passed by Congress in May 1870 and signed into law by United States President Ulysses S. Grant on May 31, 1870.

4. Administration supporter William E. Lansing of New York dismissed the “mischievous doctrine of State sovereignty” and cited the occurrence of “acts of outrage and violence . . . where the States where they arise have either no capacity or will to prevent.”

5. “Let all groups, divisions, and races of our societies feel that the wellbeing of the one is the welfare of the other.”.

6. Called by  Republican Senator John Scott of Pennsylvania

7. This replacement bill was signed in by Republican Representative Samuel Shellabarger from Ohio

8. 42 U.S.C. § 1983 now reads:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in action at law, suit in equity, or another proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For this section’s purposes, any Act of Congress applicable exclusively to the District of Columbia shall be considered a statute of the District of Columbia.

9. The overturning of Section 2 was done in the 1883 case United States v. Harris

10. now codified at 42 U.S.C. § 1986

11. Famously seen in the 1964 murders of Chaney, Goodman, and Schwerner; the 1965 murder of Viola Liuzzo; and in Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993), wherein the court ruled that “The first clause of 1985(3) does not provide a federal cause of action against persons obstructing access to abortion clinics.”

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