“Cruikshank played a crucial role in terminating Reconstruction and launching the one-party, segregationist regime of “Jim Crow” that prevailed in the South until the 1960s. The circuit court opinion of Justice Joseph Bradley unleashed the second and decisive phase of Reconstruction-era terrorism…” – Pope, James Gray. “Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon.” Harv. CR-CLL Rev. 49 (2014): 385.
The Civil War was over, but the seceding states remained in open conflict with the federal government. Southern states, particulary those with majority Black populations, were desperate to terminate institutional reconstruction and purge the federal agents tasked with ensuring Black voting rights. The levers of state government were still in White hands, but that control was becoming tenuous. It is not wholly outlandish to suggest that Jim Crow as we know it may never have come to be if the US Supreme Court had not handed down a now infamous decision that effectively left Black men and women to fend for themselves. Freed from slavery only 13 years earlier, they now had to contend with state and local governments intent on maintaining the status quo of White supremacy in every way possible. It would be nearly a hundred years before the Voting Rights Act of 1965 would begin to restore the franchise to Black individuals.
California is in full conflict with federal government as we speak. Federal agents under the moniker of ICE are attempting to detain and subsequently deport individuals they deem to be of questionable legal residence. There have been multiple examples of individuals with fully legal claims to residence in the form of green cards, student visas, or full blown birthright citizenship who have been taken into custody by ICE and CBP agents (masked, armed, and in full military fatigues). Absent familial notification or any form of due process, there was always the question of whether a state authority would ever treat these takings of individuals as extralegal kidnappings.
Am I using inflammatory language? I’m not sure that I am. ICE and CBP officials have make strong declarations that they believe themselves to be unbeholden to court decisions, due process, or the Constitution. State and local law enforcement in California have made it clear that they will not aid ICE in any way shape or form save preventing violence in the streets as protesters have arrived in sufficient numbers that ICE agents were effectively herded into narrow spaces and prevented from exiting with the individuals they had detained.
Just in case it is not patently obvious how I feel on the matter, the protesters are on the right side of history. The federal government is overreaching in a more gratuitous and unconstitutional manner than at any moment in the previous 40 years. This is, in terms of our federalist structure, the inverse of Jim Crow and Cruikshank. State governments are in position to defend the liberties and rights of their residents against the extralegal encroachment of federal agents. If anything, I find myself grateful that such a standoff is occurring in California, a state with the scale and resources to stand against the federal government. I know the Trump administration is threatening to “cut off” California from federal money, but that’s a strange tactic. California net loses between $71 and 83 billion per year in federal spending minus taxes paid by residents. California is the 4th largest economy in the world. California is a mess, their housing market is atrocious, they manage their forests and wildfire prevention quite poorly, but it is nonetheless the single most economically important state in the US by a cavernous margin. California can say “no” to the federal government. They may find themselves with national guard troops on their streets. They can ask then ask them to be removed. They can ask ICE and CBP to leave.
This is a significant test of our federalist republic. Cruikshank served as the political fulcrum of its time by denying the federal government’s obligation to intervene and in doing so handed the power to deny basic constitutional rights to state and local governments, and the country has in many ways never wholly recovered. As we speak the federal government is taking action on behalf of the current presidential administration to deny basic constitutional rights. How a state’s ability to protect those rights against the federal government on behalf of its residents plays out may be the political fulcrum of our next 50 years.
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