Many historians have commented on the extent to which Abraham Lincoln centralized federal power in the course of his war against the South. Less often remarked upon is the fact that this trend continued during the Reconstruction era, 1865 to 1877. In his essay “Wichita Justice? On Denationalizing the Courts,” Murray Rothbard observes that the Reconstruction Era provided convenient cover for the expansion of federal authority and further centralization of political power. One striking example of this was the new laws introduced to tackle “racial hate,” in particular to counteract the emergence of white militia groups such as the Ku Klux Klan.
The Ku Klux Klan Act was passed “to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.” Sometimes also referred to as the Civil Rights Act 1871, the legislation “made it a federal crime to deny any group or individual ‘any of the rights, privileges, or immunities, or protection, named in the Constitution.’” To enforce this law, the president could suspend habeas corpus, deploy the US military, or use “other means, as he may deem necessary.”
As it was already a violation of the Constitution to deny these rights to any individual, the significance of this law was not simply in declaring a violation of the Fourteenth Amendment to be a crime—more significant was the fact that the legislation vested power in the federal authorities to deploy the military to deal with such violations. Objections that this would be unconstitutional went unheeded because, after all, the KKK needed to be stamped out. Just as stamping out slavery provided a belated moral justification for Lincoln’s war, stamping out the KKK provided a convincing reason to send in the military to enforce Reconstruction on the defeated South.
When such wide powers are conferred upon government, it is important to question the motivations behind it, and to examine more closely the causes of the problem that the government is purporting to resolve. In his book In the Course of Human Events, Charles Adams observes a universal truth about the local reaction to any post-war “alien bureaucracy to rule over the conquered people,” namely, that it induces resentment among the occupied people. This resentment is not simply racial hatred in the usual sense, though that may be a component of it. As Adams explains, history shows that, “Once you disenfranchise a ruling population and superimpose a new government composed of enemy aliens of the past, an underground will develop to frustrate the alien rules.”
Paradoxically, the militant white organizations targeted by the Ku Klux Klan Act 1871 had arisen partly in response to the outrages of the same federal authorities who were later sent in to crush them. Adams points out that, “Southerners who had tolerated blacks for centuries had no tolerance for those who had joined the Federal army and fought and killed Southerners.” In contextualizing the original motivation for the KKK, Adams notes that,
The white population in the South saw the incoming Northern occupying forces and bureaucrats as hell-bent on destroying the establishment in the South and instituting a new government with the ex-slaves providing the voting power to make that possible, and they saw and feared that these ex-slaves, with the help of Northern carpet-baggers, would gain control of Southern society, as the final lasting defeat of the war. To the white population this was an intolerable prospect, and one of the main purposes of these underground societies was to keep that scenario from ever playing itself out.
Thus, the motivation for the rise of the KKK was “to reestablish and preserve white rule in the South, and to protect themselves from militant ex-slaves, hell-bent for revenge for generations of servitude.” Adams points out that this was recognized by a minority Congressional report, which “put the blame for the lawlessness of the Klan on Northern Reconstruction practices, especially the Union League”—the aim of the Union League was to persuade ex-slaves, sometimes by coercion, to vote for their preferred candidates. In that sense, the problems that arose during the Reconstruction era were largely created by the federal authorities, who subsequently gave themselves new powers to fix the problems they had themselves created.
What was presented as a need to stamp out militant white organizations served as a rationale for expanding the jurisdiction of federal police powers. These new powers eventually extended beyond the context for which they were created. Rothbard gives the example of a judge sending in federal marshals under powers conferred by the Ku Klux Klan Act of 1871 to enforce during anti-abortion protests in 1991. Time Magazine reported:
Although the act was initially designed to protect freed slaves from intimidation by Southern whites, some federal courts have ruled that it may also be used to shield women seeking abortions from pro-lifers’ wrath.
Rothbard comments on these events:
And what of the old federal “anti-Ku Klux Klan law” of the 1870s which Judge Kelly invoked to send in federal marshals? In the first place, this was a Reconstruction Era law which itself was a period when the Constitution was systematically violated and states’ rights trampled on. It is an obsolete law that should be repealed rather than invoked. And secondly, the law was ostensibly designed to move against the KKK “crossing state lines” to harass blacks—a flimsy excuse to bring in federal jurisdiction.
This example shows how federal powers are inherently amenable to abuse, being endlessly extended to deal with situations that were not envisaged when the original powers were conferred. Donald Livingstone argues that by centralizing more power in the government to promote liberal values, in this context to enforce ideals that would now be described as “antiracism,” liberals unwittingly contribute to authoritarianism. He argues that,
liberals themselves are partly responsible for the [20th] century’s barbarism, a fact they have yet to acknowledge. After all, such barbarism could not have occurred without the unprecedented centralization of power in modern “unitary” states of vast scale, first created and legitimated by the liberal tradition in the name of individual liberty.
Livingstone, therefore, argues that rather than centralizing power to enable the government to protect liberal ideals, the better approach would be “to endow the periphery with the right, in some way, to veto the center.” In the context of the US, this approach to decentralizing power is found in the doctrine of states’ rights and the right of states to secede.
