Centralization of federal power through reconstruction in the South

Many historians have commented on the extent to which Abraham Lincoln centralized federal power during his war against the South. Less often mentioned is the fact that this trend continued during the Reconstruction period from 1865 to 1877. In his essay “Wichita Justice? On denationalization of the courts, Murray Rothbard notes that the Reconstruction era provided a convenient excuse for the expansion of federal powers and the further centralization of political power. A striking example of this was the new laws to combat “racial hatred,” particularly to counter the emergence of white militias 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 referred to as the Civil Rights Act of 1871, the law made it “a federal crime to deny to any group or individual ‘any of the rights, privileges, or immunities, or protections specified in the Constitution.'” To enforce this law, the President could exercise habeas Suspend Corpus, use the US military or “use such other means as he deems necessary.”

Since it was already a violation of the Constitution to deny an individual these rights, the significance of this law was not only that it made a violation of the Fourteenth Amendment a criminal offense – even more significant was the fact that the legislature gave power to the state We call on federal authorities to use the military to combat such violations. Objections that this was unconstitutional went unheeded because, after all, the KKK had to be eradicated. Just as the abolition of slavery provided a belated moral justification for Lincoln’s war, the eradication of the KKK provided a compelling reason for sending the military to enforce Reconstruction in the defeated South.

When government is given such broad powers, it is important to question the motives behind it and to examine more closely the root causes of the problem the government is trying to solve. In his book In the course of human eventsCharles Adams notes a universal truth about the local reaction to any postwar “foreign bureaucracy to rule over the conquered people”: that it breeds resentment among the occupied people. This resentment is not simply racial hatred in the usual sense, although that may be part of it. As Adams explains, history shows: “Once you disenfranchise a ruling population and bring into power a new government made up of hostile aliens of the past, an underground will develop that will destroy the alien rule.”

Paradoxically, the militant white organizations targeted by the Ku Klux Klan Act of 1871 had arisen in part in response to the crimes of the same federal authorities who were later sent to dismantle them. Adams points out that “Southerners, who had tolerated blacks for centuries, had zero 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 and feared the advancing Northern occupation forces and bureaucrats determined to destroy the Southern establishment and install a new government with the ex-slaves having the right to vote to make this possible Ex-slaves would gain control of Southern society with the help of Northern carpet traders, which would mean the war’s ultimate permanent defeat. For the white population, this was an intolerable prospect, and one of the main purposes of these underground societies was to prevent this scenario from ever playing out.

Therefore, the motivation for the rise of the KKK was “to restore and preserve white rule in the South and to protect against militant ex-slaves bent on revenge for generations of servitude.” Adams points out that this is in a congressional minority report that “placed the blame for the Klan’s lawlessness on Northern Reconstruction practices, particularly the Union League” – the Union League’s goal was to convince former slaves, sometimes through coercion, to vote for their preferred candidates. In this sense, the problems that arose during Reconstruction were largely caused by federal authorities, which subsequently gave themselves new powers to solve the problems of their own creation.

What was presented as the need to eradicate militant white organizations served as justification for expanding the responsibilities of the federal police. These new powers ultimately transcended the context for which they were created. Rothbard gives the example of a judge sending federal marshals under powers granted by the Ku Klux Klan Act of 1871 to enforce anti-abortion protests in 1991. Time magazine reported:

Although the law was originally intended to protect freed slaves from intimidation by Southern whites, some federal courts have ruled that it can also be used to protect women seeking abortions from the wrath of abortion advocates.

Rothbard comments on these events:

And what about the old federal “anti-Ku Klux Klan law” from the 1870s that Judge Kelly invoked to send federal marshals? First, this was a Reconstruction era law, a period in which the Constitution was systematically violated and states’ rights were trampled upon. It is an outdated law that should be repealed rather than enacted. And second, the law was ostensibly aimed at preventing the KKK from “crossing state lines” to harass black people—a flimsy pretext for imposing federal jurisdiction.

This example shows that federal powers are inherently vulnerable to abuse and are endlessly expanded to address situations not contemplated when the original powers were delegated. Donald Livingstone argues that by centralizing more power in government to promote liberal values, in this context to enforce ideals that would today be called “anti-racism,” liberals are inadvertently contributing to authoritarianism. He argues that

The liberals themselves are partly responsible for this [20th] century, a fact they have not yet acknowledged. After all, such barbarism could not have occurred without the unprecedented centralization of power in modern, large-scale “unitary” states, first created and legitimized by the liberal tradition in the name of individual freedom.

Livingstone therefore argues that the better approach would be to “endow the periphery with some power to veto the center” rather than centralizing power to enable the government to protect liberal ideals. In the U.S. context, this approach to decentralizing power is found in the doctrine of states’ rights and the right of states to secede.