I Don’t Get This ‘Lynching’ Thing
You mean to tell me that forcibly removing someone from his home, his barn, his street or his place of incarceration to HANG HIM wasn’t MURDER until this Senate vote? That a noose around someone’s neck by virtue of mob rule or anything other than a jury’s determination isn’t criminally EXECUTING someone?
Seven presidents petitioned Congress to end lynchings. Nearly 200 anti-lynching bills were introduced in the first half of the 20th century. The House passed three anti-lynching measures between 1920 and 1940, but the Senate passed none.
Why did they have to ‘petition’? Isn’t the innate heinousness of the act of MURDER, by man or mob, criminal by every measure of our law? If it is indeed so, as I hope to God it is, and the Senate was being goaded to act because, by their very silence, they were complicit in this abomination, then shame and for shame on them, the craven cowards. What they should be apologising for is that they didn’t pass ANY Civil Rights legislation. The Southern Senators should be groveling for their predecessors (and current members) who wore white sheets and hoods on weekends and blocked every attempt to pass such bills for years. While people died. For shame, indeed.
My question is for the barristers of our humble company. Do you know if lynching was legal? Not tacitly condoned or ignored by authorities (some of who may have been in those mobs) when their sworn duty was to protect the rights of citizens. But legally considered MURDER and chargeable as such, as if Congress could ‘end’ lynchings with legislation.
I ask in light of today’s rush to enact special hate crimes and circumstance statutes that seem overwrought and unnecessary. If you are murdered for whatever reason, does the state not then owe your life every measure of justice available? You are equally as dead from the car jacker, the home invader, the homophobe and the racist are you not? Perhaps I’m simplistic, but I think every life deserves the same measure of respect and you dilute the enormous impact of the offence by categorizing it.
Humanity...or the Lack Thereof | tree hugging sister | 
June 14, 2005 5:26 pm
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You need to talk to the Supreme Court about that.
Seriously, beyond the Cruikshank case, there is good reason for it not to be a federal crime – it was a state crime (same with murder now). Lynching was never “legal” in any state, the problem was that the southern states did not prosecute (or juries did not convict) whites who murdered blacks. In fact, weird as it sounds, federal murder prosecutions under civil rights laws are technically for “depriving of rights” or something like that since the federal government does not have jurisdiction on issues (in this case, murder) covered under state laws. Those laws were instituted to give the feds such jurisdiction.
DaveJ can expound better, and I hope he does. for now my computer’s crashing so gotta go
Well, that’s a damn fine effort so far, Mr. Summers!
Thanks Sis. I pretty much covered all I really know, so I hope Dave drops by to add a little, such as what clauses were cited for the civil rights laws (14th Am. only, I suspect) and the originally proposed lynch laws. It’s actually pretty interesting, I think, because it arises from the fundamental ideas of federalism and the particular powers of the fed vs. state govts.
And I actually was serious about the computer crash – the IT dept is wiping it and giving it a new brain tomorrow (I hope). Fortunately, this particular death throe gives a one minute warning before shutting the system down, unlike others I’ve seen in the past.
I am committed federalist as you know, having worked for a state legislature. But the post-Civil War amendments did fundamentally change the relationship between the states and the federal government. The two federal civil rights acts, first the 1867 Act passed by the Reconstruction Congress and then the 1964 Act, do indeed both rest on the 14th Amendment, and specifically on Section 5, the express grant of power to Congress to adopt legislation enforcing the other provisions of the amendment. However, the various public access provisions of the 1964 Act are also based on Congress’s power to regulate interstate commerce, because the 14th Amendment is directed to the states rather than to private actors.
(The 14th Amendment, for those as out of their depth as I.)
Okay, so how I read this, lynching as a crime is pretty much covered Federally by the first section (emph. mine)…
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
…which would then render specific Federal ‘lynching’ legislation superfluous…right? The State, will not actually doing the depriving, allowed it to happen to citizens. So by inference, the State was culpable.
The states were, indeed, complicit and culpable, but that’s not the same as giving the federal government jurisdiction over state matters.
Dave can correct my take on it, but I read that as requiring states to make laws apply equally to all people and to require due process under LAW (whether it actually happens in practice or not, though there could be a case for suing to force it).
The 14th Amendment does not, by its own language, create a crime of denial of due process or equal protection: it is not “self-executing” that way. Treason remains the only crime actually defined in the federal constitution, although the PENALTIES for the crime of treason aren’t in thhere either.
Rather, what the 14th Amendment it does by itself is make any state action that denies due process or equal protection invalid. Making such deprivations of rights a crime and/or a civil cause of action is left to Congress under Section 5 of the amendment. It does not oust the states from any of their jurisdiction, but simply expands those areas where the feds’ jurisdiction is concurrent (i.e., coexisting, simultaneous) with the states.
Now, I don’t know, but some of the proposed federal anti-lynching legislation may have also been premised on the 13th Amendment, the one abolishing slavery, the enforcement section of which courts have construed rather broadly to allow Congress to go after “badges and incidents” of slavery, whatever that means.
You Are Missing the Point
Me thinks Tony Auth is misunderstanding why some of us are aggravated about the Senate apologizing for lynching:
As I have written here and here, I think it is stupid and unproductive to apologize for things that you had no control over. Bad thi…
The “badges and incidents” of slavery refers to vestiges of slavery — unlawful acts carried out against African-Americans, and other nonwhites, such as lynching, The rationale is that nonwhites, especially blacks, are likely to be mistreated by the white majority precisely because of their history of being considered less than human. If this kind of reasoning had been taken seriously, then segregation would never have arisen since it relied on the belief that nonwhites should be separated from whites because of their inferiority. Of course, things did not go that way. As a result, we have a society still rife with race-based inequalities.
Jemima, first let me say welcome! Secondly, thank you for adding another layer to our ‘history’ lesson here. This has been an enlightening dialogue, to say the least.