Mob Rule Central

My title is from Nathan Newman's excellent post, Supreme Court: Mob Rule Central.

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.

Read the whole thing and also read the longer article [pdf] by Nathan Newman and J.J. Gass, on which this post appears to be based.

Nathan's insights about the historical nature of the courts and their current direction should be taken in close company with the many excellent posts by David Neiwert on the rise of domestic terror and the  "the ongoing ideological traffic between the mainstream right and its extremist counterpoint." Taken together, Neiwert and Newman's analyses are key for understanding what is so alarming about recent developments such as:

• The Justice Department's attempts to make the case against the private right of action in voting rights violations.

• Jeb Bush's promise to sign into law the so-called "Castle Doctrine" Bill, which would allow private citizens broad discretion to shoot at perceived attackers in their homes, vehicles and public places.

Before the Civil Rights Movement, there was a symbiotic relationship between domestic terror groups, like the Ku Klux Klan, and law enforcement and the courts. The beast rages on as police brutality, racial profiling, and skyrocketing incarcerations [pdf]—but the Movement constrained and limited some of its grossest expressions and forced the US to make some major strides in living up to its democratic principles. All signs suggest a rough new beast is dragging us back down an old and terrible road.