The Federal oversight and intervention called for in the Ku Klux Klan Act (or, as it was formerly called, the Third Enforcement Act) was unprecedented, but so was the threat posed to American citizens in the former Confederacy during Reconstruction.
If the issues surrounding this threat
in the postbellum South—access to voting rights, a white-dominant party seeking
to retain its entrenched privilege, and extremists resorting to new violent
methods to check the rising power of African-Americans—sound familiar to contemporary readers, they
should.
The remnants of the defeated slave states didn’t waste
time trying to reconfigure their old social, political and economic order
through new means of subjugating African-Americans. The Ku Klux Klan
(KKK), founded in 1866 by Confederate Gen. Nathan Bedford Forrest, had evolved
two years later from a fraternal order into a violent, secret one that, under
white robes, hoods and the cover of night, sought to:
*whip freedmen who violated the code of white
superiority (e.g., refusing to take off one’s hat in the presence of whites,
interracial couples);
*kill African-Americans who exercised the right to
vote, or their white Republican allies; and
*intimidate other members of these groups into silent
compliance.
Passage of the 14th and 15th
Amendments, ensuring “due process of law” and voting rights for all citizens, respectively,
only increased the tempo of the violence, which reached highs especially before
elections.
Two prior Enforcement Acts, adopted in 1870 and early
1871, authorized the appointment of election supervisors to counteract
electoral fraud, bribery and intimidation of voters, and conspiracies to prevent
the exercise of constitutional rights, and strengthened enforcement powers in
large cities.
Initially, President Grant hoped this would be enough to curb the terror. Yet, as Congressional testimony revealed, violence continued, with witnesses reluctant to testify for fear of retaliation, Klansmen unwilling to inform on each other, and juries refusing to convict in those cases brought.
Nor were politicians in the South able or often even willing to intervene: Democratic officeholders, if not KKK members, were often sympathetic to it, and Republican governors feared that using African-American troops would only start a race war.
Initial postwar legislation had left the prosecution
of private criminal acts to local law enforcement. But with the new
legislation, the federal government was stepping in.
To Democrats, the new legislation came to be nicknamed
“The Force Acts”. In particular, they complained that the Ku Klux Klan Act authorized
the suspension of habeas corpus—i.e., suspects would be arrested and held
without bail—declarations of martial law, and the use of federal troops to
arrest violators of the act and to break up “bands of disguised marauders.”
This portion of the legislation was the most legally and politically problematic. During the Civil War, Abraham Lincoln had suspended the writ of habeas corpus, arguing the move was necessary to quell the rebellion.
Although the Supreme Court had been reluctant to deal with
the issue while the war was raging, it ruled a year after its conclusion, in Ex
parte Milligan, that the President did not have the authority to apply military
tribunals to citizens when civil courts still operated. How much it would
ignore the Grant Administration’s treatment of habeas corpus was uncertain.
Even members of Grant’s own party were not all behind
the legislation. So-called “moderate Republicans” such as Lyman Trumbull expressed
grave doubts about its constitutionality, and members of the President’s own
Cabinet privately complained about listening to Attorney General Amos Akerman
report frequently on KKK depredations in the South.
But those directly facing the terror argued that these
were legal niceties and action must be taken. Grant was particularly careful to
use his powers concerning habeas corpus sparingly, in only nine South Carolina
counties. Yet, under Akerman’s aggressive and inspired leadership, other provisions
in the legislation were used to the hilt, with federal grand juries bringing approximately
3,400 indictments against the KKK, resulting in more than 1,100 convictions.
Although Southerners saw Grant as doing too much in
the South, Radical Republicans such as Sen. Charles Sumner believed that he had
done too little, and very late even at that. But within the sphere the
President had determined, he had moved decisively.
As historian James M. McPherson
observed in Ordeal By Fire: The Civil War and Reconstruction: “The
government’s vigorous action in 1871-1872 did bring at least temporary peace
and order to large parts of the former Confederacy. As a consequence, the 1872
election was the fairest and most democratic presidential election in the South
until 1968.”
With adverse Supreme Court decisions and the withdrawal of Federal troops from the South after the 1876 election, Southern whites were able increasingly to roll back the political and economic gains of freedmen.
As for the KKK, it has
reemerged three different times since then: in the decade after the 1916 film Birth
of a Nation, when it broadened its terror campaigns to encompass Roman
Catholics and Jews as well as blacks; in the midcentury civil-rights era, when
it concentrated again largely on African-Americans; and in the last four years,
as part of a larger nationalist movement that has grown 55%, according to a 2020 report from the Southern Poverty Law Center.
The Ku Klux Klan Act, while little enforced for much
of the 20th century, now forms Section 1983 of the United States
Code and is the basis for federal civil rights lawsuits across the country,
according to Nicholas Mosvick's blog post for the National Constitutional Center.
It has become even more relevant as the basis of a lawsuit against former President Donald Trump and ally Rudy Giuliani for
allegedly conspiring with a pair of hate groups to storm the U.S. Capitol and
block the Electoral College count in January.
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