Looking back at the Ku Klux Klan Act

The Ku Klux Klan Act may be a law from the Reconstruction era, but it still relevant today as a way to address modern civil rights violations.

On April 20, 1871, President Ulysses Grant signed the law, also known as the Civil Rights Act of 1871. Part of the law is known today as Section 1983 of the United States Code and is the basis for federal civil rights lawsuits across the country.

Through the Ku Klux Klan Act, Congress opened the doors of federal courts to sue state officers and even private actors for civil rights violations. Section 1983 includes suits for violations of civil rights by police officers, public educators and officials, or prison guards and wardens. Another part of the act is included in Section 1985 of the code.

The Ku Klux Klan Act’s passage followed racial violence and terrorism in South Carolina. It was the third of a series of “Enforcement Acts” meant to protect African American citizens against this widespread extralegal violence. The first two acts, passed in May 1870 and February 1871, aimed to allow the federal government to enforce the 15th Amendment and African American voting rights in the south.  

During the debates over the act, the bill’s supporters repeatedly described the of terror imposed by the Klan upon black citizens and their white sympathizers in the southern states. These violent acts went unpunished, legislators asserted, because Klan members and sympathizers were powerful enough that law enforcement would not arrest them, juries refused to convict, and judges would not hold fair trials.

Republicans in Congress argued that states refusing to protect African Americans by ignoring the violence of the Klan violated their14th amendment right to “equal protection.”

The origins of the Ku Klux Klan Act and Section 1983 go back to the Civil Rights Act of 1866, which was modeled on the Fugitive Slave Act of 1850. Prior to Reconstruction, the one area in which Congress and the federal government could guarantee, by private lawsuits, constitutional rights was related to fugitive slaves.

Thus, when Ohio Representative Samuel Shellabarger introduced the Civil Rights Act of 1871 on March 28, 1871, he had modeled the text on Section 2 of the Civil Rights Act of 1866. Section 2 of the 1866 act forbade certain acts by any person “under color of any law, statute, ordinance, regulation, or custom” and created a right to sue in federal court for violations of civil rights done under the color of state law. As a source of power, Shellabarger specifically pointed to Section 5 of the 14th Amendment, which gave Congress power to enforce the rights granted in the amendment’s text.

Democrats, joined by moderate and conservative Republicans, questioned the law’s constitutionality because of what they considered the radicalness of reaching private acts of individuals, not merely when the government itself acted.

Some Republicans were among the critics, including Illinois Senator Lyman Trumbull, author of the Civil Rights Act of 1866. Trumbull said the Ku Klux Klan Act would allow Congress to enact a general criminal code.

Other conservative Republicans, like James Garfield and James Farnsworth, believed the act was unconstitutional because Congress’s power under Section Five of the 14th Amendment was limited to remedying state acts and enforcing the laws against the states.

As an immediate result of the act, hundreds of men were indicted in North Carolina, while United States Attorney G. Wiley Wells secured around 700 indictments in Mississippi. Most prominently, in the 1871 and 1872 South Carolina trials, the military provisions of the act were used to make hundreds of arrests and force up to 2,000 Klansmen to flee the state. As Professor Eric Foner puts it, the “legal offensive” of 1871 ultimately broke the Klan and “produced a dramatic decline in violence throughout the South.” Breaking the Klan, however, would not be the end of the fight to protect constitutional rights against extralegal violence and the actions of state actors.

The act has been amended many times since 1871 until it became part of the United States code as Section 1983 (to allow for civil rights suits against government officials) and Section 1985 (which allows the government to charge private actors with conspiracy to interfere with another person’s civil rights). The Supreme Court’s “state action” requirement in the 1883 Civil Rights Cases limited the power of the Civil Rights Act of 1871 until a series of Supreme Court cases in the 1950s suggested the justices were, in the words of historian Michael Klarman, “no longer willing to permit state-action doctrine to obstruct the pursuit of racial equality.”

In 1961, Monroe v. Pape opened up civil rights lawsuits under Section 1983 to apply to anyone whose constitutional rights were violated by state and local government officials and local governments. In the case, which arose out of a lawsuit against the city of Chicago for violations of civil rights by police officers, the Court would not hold the city liable but found any individuals acting “under color of law” could be sued under Section 1983. Limitations remain on the ability to sue cities for the actions of local officials, but Section 1983 continues to be the foundational means for citizens to sue state officers for civil rights violations.

Recently, the Ku Klux Klan act and Section 1985 have been cited in a lawsuit brought against former President Donald Trump and others in relation to the January 6, 2021 riot at the capitol in Washington. The act is also part of an active lawsuit against white supremacists involved in violence in Charlottesville, Virginia, in 2017.

Nicholas Mosvick is a Senior Fellow for Constitutional Content at the National Constitution Center.

Additional Resources:

Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (2020)

Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and Struggle for Racial Equality (2004)

Kurt Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2015)

Gerard Magliocca, America’s Founding Son: John Bingham and the Invention of the Fourteenth Amendment (2016)