Facing the Ghost of <em>Cruikshank</em> in Constitutional Law

Abstract

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism. By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank (1876), we can provide a more complete and complex vision that legitimates the Constitution as a basis for higher expectations of substantive justice. Building on James Gray Pope’s important scholarship on the case, I argue that Cruikshank highlights the long shadow of judicial unwillingness to enforce constitutional rights. This refusal is not just a historic failure, but also underlies the complicity of Constitutional law in the ongoing injustice of state-based racial violence, based on the continued authority of doctrines established in Cruikshank.