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|No one who was familiar with the unspeakable horrors of slavery, or who knew its degrading, demoralizing, dehumanizing effect upon the master class, will doubt that the stories of the Ku-Klux atrocities are substantially true. They may be exaggerated in number. They may be misrepresented in certain cases. But the political and social hate from which they spring will not be denied. Citizens of the United States, because they are black, or because, being white, they sympathize with the black citizens, and both black and white because they are loyal to the Union and of the Republican party, are exposed to violence of every kind and degree; so that in one State—South Carolina—the Governor has appealed to the President for aid. From other States the cries of individual sufferers have reached Congress, imploring protection, and a committee has reported a bill designed to relive the lawlessness of the States in question.|
We are very sure that nobody who is conversant with the course of this paper during the war and the epoch of reconstruction has any doubts of our sympathy with the victims of the Ku-Klux, nor of our desire to do whatever can be done to succor them, short of doing greater evil. But the first fact that we encounter is this—that the Constitution of the United States guarantees every State, "on application of the Legislature, or of the Executive (when the Legislature can not be convened), against domestic violence." The second fact is that the Governors of many of the States which the Ku-Klux ravage are in political sympathy with the President, and with the Republican majority in Congress. If the domestic violence in those States is beyond the control of the Governors, why do they not, with the Governor of South Carolina, require the President’s aid, as the Constitution authorizes? So long as they refrain from the demand—they whose information is immediate and ample—is there any good reason for extraordinary legislation?
The proposed bill, in its fourth section, provides that whenever in any State the unlawful organizations violently set at defiance the constituted authorities, the President may interfere. But that is precisely what the Constitution already provides, upon the sole condition that the Legislature, or the Executive, testifies the inability of the local authority to deal with the disorder. But the bill, omitting this condition, leaves to the President to determine when the State authority is insufficient. Is that, upon reflection, a wise change in the system; and if it be, can it be made by an act of Congress? And again, if it be wise, and if it can be made by Congress, why should it be a provision which is to expire on the first day of June, 1872, as the same section provides? The peril is always possible; ought not the law, therefore, if unquestionably constitutional, to be permanent? These are grave questions, as our fellow-Republicans will see.
The bill proceeds, in the same section, to declare that if the constituted authorities themselves, instead of asking aid of the national government, become accomplices in the disorder, the situation shall be deemed a rebellion, and the President may suspend the privilege of the writ of habeas corpus, and suppress the difficulty by arms. This, again, makes the President the sole and final judge of the complicity of the State authorities in a conspiracy, and empowers him practically to supersede them. There is a riot in Boston, for instance. The President, with or without reason—for no system of evidence is mentioned—decides that it is the work of an armed and numerous combination, with which the State authorities are unable to deal, or with which they are in league, and thereupon marches troops to restore order. This is the scope of the bill. This is the grant of power until the 1st of June, 1872. Is it wise? Is it desirable that the Republican party should make it? Is it safe for liberty that it should be made? If it be, ought the power to expire next year?
That there are emergencies in which even the fundamental law must be disregarded to save both itself and the country is true. That there was no folly so criminal as that of the assertion that armed and summary resistance to secession was unconstitutional, is unquestionable. But with Republican Governors in many disordered States, and a constitutional provision empowering them to ask aid against insuperable domestic violence, is there any necessity for suspending the fundamental law? It will not be forgotten that in 1866, while the legislation of reconstruction was proceeding, and before the lately rebel States were restored, the project of an amendment to the Constitution, expressly providing that Congress should have power to secure "to all persons in the several States equal protection in the rights of life, liberty, and property," was, upon motion of Mr. Conkling, postponed, and not called up for consideration. If at that time, and under those circumstances, it was thought necessary—if such an object were desirable—to provide for the purposes of the present bill by an amendment of the Constitution, upon which it was not deemed wise to take action, can it be desirable now to aim at that object by a mere act of Congress? Or will it be alleged that the proposed amendment of 1866 was not called up because the power conferred by it was believed to be included in the Fourteenth Amendment? Mr. Bingham, indeed, says that he drew the amendment, and that the power was meant to be conferred. It is certainly most unfortunate, then, that the first form was not retained.
The deplorable and menacing condition of some of the Southern States can, perhaps, hardly be exaggerated. If we were to heed feelings only, all loyal and orderly citizens would resort to the most summary measures. Indeed, when great crimes are committed any where, the instinct is to demand instant vengeance. Reason and experience, however, insist that "the due process of law" shall be observed for the common safety, knowing that "order" is always the plea of despotism. In the same way regard for the general liberty, for all those guarantees which defend us from tyranny and ruthless ambition, requires that the plain conditions of the fundamental law shall be rigidly respected, and changed only as itself provides. We are not now saying that so essential and vital a change in the system of the Union as this bill contemplates is unwise; but surely it should be the result not of an act of Congress, under a challenged and doubtful interpretation, but of an express and explicit constitutional amendment.
|Harper's Weekly, April 15, 1871, page 330 (Editorial)|
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