Written by: Kayla Sleeper
Edited by: Sean Tonra
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“I learned that racism, like most systems of oppression, isn’t about bad people doing terrible things to people who are different from them but instead is a way of maintaining power for certain groups at the expense of others.”
― Alicia Garza, The Purpose of Power: How We Come Together When We Fall Apart
Following the Charlottesville ‘Unite the Right’ rally in August 2017, injured anti-protesters are involved in a civil lawsuit against twelve neo-Nazi and white nationalist groups for damages incurred when James Alex Fields Jr. sped into a crowd with his car, injuring at least 19 people and killing Heather Heyer. Part of their legal argument is based on the Ku Klux Klan Act of 1871, the Third Enforcement Act of the Reconstruction era. The Act aimed to protect Black people from violence by allowing the president to suspend habeas corpus and to intervene with military forces against anyone conspiring to deny citizens’ equal protection provided under the 14th Amendment. It also served to reinforce the Civil Rights Act of 1866, which began the process of legalizing African American citizenship and providing rights of due process under federal law before the 14th Amendment. These Charlottesville plaintiffs are using these laws to propel the argument that these supremacist groups were conspiring to deny the plaintiffs their rights (and thus they have the right to enact a lawsuit against it via the due process clause of the 14th).
The KKK Act of 1871 is also being implemented in multiple lawsuits regarding the democratic chaos following the 2020 presidential election. House Homeland Security Chairman Bennie Thompson has filed a federal lawsuit against President Donald Trump, his lawyer, Rudolph W. Giuliani, and members of the Proud Boys and Oath Keepers for inciting violence at the January 6th attack against the nation’s capital earlier this year with the intent to delay Congress’s confirmation of Joe Biden’s presidency. The NAACP has also cited this law in their federal suit against Trump and the Republican National Committee (RNC) for seeking to disenfranchise voters—particularly Black voters—by concentrating efforts to “slow and stop vote counting in tightly contested states” and cities with large Black populations.
The ‘Unite the Right’ rally led by white supremacist groups that escalated into a violent riot was a clear threat to Jewish Americans with chants of “Jews will not replace us.” In effect, this attempt to reinforce the social control of the white and Christian majority in America endangers all minority groups. A rally like this may be an exercise of free speech, as the defendants argue in their legal battle, but their words and actions have downstream political effects as well. Afraid of losing political power to minorities, they enact the only mechanisms of political control they have as citizens: social displays of intimidation. It promotes an atmosphere of hostility, and the potential consequences do not have to be imagined when violence did erupt and result in people being harmed and even killed. The effect of using the KKK Act of 1871 seems not only a legal argument based on the protection of the plaintiffs’ rights against conspiracy, but also a message to the American government and its people that this kind of outright mob violence should be a thing of the past. The usage of this law serves as a reminder the American government has already decided the actions of these modern neo-Nazi and white nationalist groups to be illegal 150 years ago.
Additionally, the hostile reaction to election results and ultimate trespassing and destruction of property of the Capitol by groups such as the Proud Boys on January 6th also seem an effort to not only go outside democratic systems to gain the results they wanted, but to reinforce social power. Their actions carry a sense of entitlement for American politics to bend to their wishes, and the way inciters were treated by police officers may seem a stark contrast to the way protesters were treated following Black Lives Matter marches throughout the summer of 2020. In attempting to influence election results, the argument that there was a conspiracy to deny the voting rights of citizens that voted for Biden can be made as well. This is particularly relevant to the NAACP’s case against Trump and the RNC that also recognizes that many of the votes in question tended to be those cast by Black Americans.
Despite progress since Reconstruction, racial and religious discrimination still has a hold on American society, and thus dictates many social and political interactions. Discrimination today may come in less obvious forms than it did following the Civil War, and even in the events of the Charlottesville riots and January 6th attack on the Capitol; however, in an age where the explicit violence such as that enacted by the KKK is not tolerated, there comes the question if civil rights laws such as Enforcement Acts’ can be expanded to apply scenarios of more modern intimidation. One could say the parties involved in both events were acting under rights of free speech, but where will we as a society draw the line?
Displays of racial and religious bigotry do not just have social consequences; they dictate voting accessibility, political power, and protection under the law. The U.S. government is often wary to govern interactions between citizens, and American society centered around individualism tends to view this as a benefit. Yet when words and actions of intimidation begin to infringe upon political rights, it is a democratic necessity of our government system to implement mechanisms of protection for minority groups, and thus for all American citizens.
The enduring political appeal of shifting responsibility of protection of civil rights to the government can be seen in the revival of the KKK Act of 1871 in modern lawsuits. People with power will be reluctant to let go; but perhaps more government intervention will be necessary to spark another era of progress. We mark the Reconstruction era and the Civil Rights Movement of the 1960s as times of societal transformation, but now, sixty years later, perhaps we are due for a new era of change.
[The views expressed in this article are those of the author and the author alone; they do not necessarily represent the views of all members of the first RULR Editorial Board and Rutgers University.]
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