an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Hindsight is 20/20. In the opening minutes of the McDonald oral argument, Chief Justice Roberts told Alan Gura that he would have difficulty overruling the Slaughter-House Cases, "which have been the law for 140 years." In hindsight, what Gura should have said is, first, the Supreme Court overrules cases all the time-- just look at Citizens United this term-- (nudge, nudge, Justice Kennedy)-- and, second, that it wasn't really necessary to overrule Slaughter-House.
Most lawyers have never heard of Cruikshank, and if they did, they wouldn't be particularly proud of the decision. It overturned convictions in the Colfax Massacre, one of the worst episodes of racial and political violence during Reconstruction, during which white vigilantes murdered scores of African-Americans. To put it mildly, this was not a proud day in American history. The Supreme Court, through a series of technical distinctions, found a way to let domestic terrorists go free. The title of Charles Lane's recent book, "The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction" tells it all. After Cruikshank, federal power to protect civil rights against Klan violence was greatly limited.
One of the technical distinctions used in Cruikshank was that the First and Second Amendments, and indeed most of the rights protected in the Bill of Rights, were not rights "granted" by the federal Constitution, but only "secured" by the Constitution against government interference. Chief Justice Waite argued that the rights described in the Bill of Rights were natural rights pre-existing the Constitution, so they couldn't be "granted" by the Constitution and therefore couldn't be privileges or immunities of national citizenship. Instead, these and other natural rights were attributes of state citizenship, and citizens had to look to the states for their protection.
Does this argument sound confusing? If so, it is because it is confused. Waite's argument is premised on the existence of natural rights that pre-exist the state, but the conclusion does not follow from the premise.
Constitutions protect natural rights by creating positive legal rights; these legal rights are created and granted by the adoption of the Constitution and its amendments just like any other legal rights.
So it's entirely possible that both the states and the federal government could create distinct provisions protecting the same natural right-- say freedom of speech. Indeed, they might differ in some respects, because state free speech provisions might be broader or narrower in scope.
Whether or not the right of assembly is a natural right, the right contained in the text of the Constitution is a positive legal right created by the adoption of the constitutional text. When the federal government guarantees that natural right through a federal constitutional provision, it creates a federal right, and therefore it is a privilege or immunity of citizens of the United States whether or not states have a similar positive right in their own constitutions that protects that same natural right.
There is no particular reason to honor Cruikshank today. Not only is it badly reasoned, but it perpetrated a great injustice. And even today it prevents Congress from protecting some federal rights from private conspiracies.
Moreover, if we overturn Cruikshank, we can still keep Slaughter-House. Slaughter-House stands for the proposition that rights of state citizenship and rights of federal citizenship are distinct. But that proposition is consistent with the existence of federal and state rights that are similar in scope but come from different sources. For example, Slaughter-House held that the right to visit a federal post office was a privilege or immunity of national citizenship. If a state created a statute that also protected that right, it would not follow that the federal right vanished. It would simply be protected by two different jurisdictions in two different ways.
Waite's argument in Cruikshank was sophistry, designed to throw out a conviction for domestic terrorism. In the process, he effectively held that the rights in the Bill of Rights did not apply to the states. There is no particular value in maintaining Cruikshank's convoluted logic today. There is certainly very little justified reliance on this decision. Most people have never heard of it, and its most significant effect today is to immunize certain forms of political violence.
If Gura had said all this to Chief Justice Roberts, would it have made a difference? Probably not. The Justices don't seem to be moved very much by history except when it meshes with their preexisting views. But it would have allowed the Court to preserve an well-known icon, Slaughter-House, by drawing attention to one of the Court's worst but least well-known mistakes-- Cruikshank. It was certainly worth trying.