KU KLUX KLAN ACT
The Ku Klux Klan Act of 1871 (ch. 22, 17 Stat. 13 [codified as amended at 18 U.S.C.A. § 241, 42 U.S.C.A. §§ 1983, 1985(3), and 1988]), also called the Civil Rights Act of 1871 or the Force Act of 1871, was one of several important CIVIL RIGHTS ACTS passed by Congress during Reconstruction, the period following the Civil War when the victorious northern states attempted to create a new political order in the South. The act was intended to protect African Americans from violence perpetrated by the KU KLUX KLAN (KKK), a white supremacist group.
In March 1871, President ULYSSES S. GRANT requested from Congress legislation that would address the problem of KKK violence, which
had grown steadily since the group’s formation
in 1866. Congress responded on April 20, 1871,
with the passage of the Ku Klux Klan Act, origi-
nally introduced as a bill “to enforce the provi-
sions of the FOURTEENTH AMENDMENT and for
other purposes.” Section 1 of the act covered
enforcement of the Fourteenth Amendment and
was later codified, in part, at 42 U.S.C.A. § 1983.
Section 2 of the act, codified at 42 U.S.C.A.
§ 1985(3), provided civil and criminal penalties
intended to deal with conspiratorial violence of
the kind practiced by the Klan. Both sections of
the act were intended to give federal protection
to Fourteenth Amendment rights that were reg-
ularly being violated by private individuals as
opposed to the state.
In addition, the Ku Klux Klan Act gave the president power to suspend the writ of HABEAS
CORPUS in order to fight the KKK. President Grant used this power only once, in October
1871, in ten South Carolina counties experiencing high levels of Klan TERRORISM. The act also banned KKK and other conspiracy members from serving on juries.
The Republicans who framed the Ku Klux Klan Act intended it to provide a federal remedy
for private conspiracies of the sort practiced by
the KKK against African Americans and others.
As had become all too apparent by 1871, local
and state courts were ineffective in prosecuting
Klan violence. Local and state law enforcement
officials, including judges, were often sympa-
thetic to the KKK or were subject to intimida-
tion by the group, as were trial witnesses. The
Ku Klux Klan Act would allow victims of Klan
violence to take their case to a federal court,
where, it was supposed, they would receive a
fairer trial.
The act, like other CIVIL RIGHTS laws from
the Reconstruction era, sparked considerable
legal debate. Its detractors claimed that the law
improperly expanded federal jurisdiction to
areas of CRIMINAL LAW better left to the states.
The Supreme Court took this view in 1883 when
it struck down the criminal provisions of the
act’s second section on the ground that protect-
ing individuals from private conspiracies was a
state and not federal function (United States v.
Harris, 106 U.S. 629, 1 S. Ct. 601, 27 L. Ed. 290).
This and other rulings stripped the Ku Klux
Klan Act of much of its power. Like many other
civil rights laws from its era, it went largely
unenforced in succeeding decades.
The remaining civil provisions of the act
were later codified under 42 U.S.C.A. § 1985(3),
where they have been referred to as the conspir-
acy statute. These provisions hold, in part, that
when two or more persons “conspire or go in
disguise on the highway or the premises of
another, for the purpose of depriving . . . any
person or class of persons of the EQUAL PROTEC-
TION of the law,” they may be sued by the
injured parties. The civil provisions, or
§ 1985(3), remained generally unused until the
1971 U.S. Supreme Court decision Griffin v.
Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L.
Ed. 2d 338. In Griffin, the Court reaffirmed the
original intention of § 1985(3) and ruled that
the statute may allow a civil remedy for certain
private conspiracies. The Griffin case concerned
a 1966 incident in Mississippi in which a group
of white men stopped a car out of suspicion that
one of its three African–American occupants
was a civil rights worker. The whites proceeded
to beat and threaten the African Americans. The
Court upheld one victim’s claim that, under
§ 1985(3), the whites had engaged in a conspir-
acy to deny him the equal protection of the laws
of the United States and Mississippi.
In making its decision, the Court was careful
to restrict § 1985 claims to those involving
actions motivated by “some racial, or perhaps
otherwise class-based, invidiously discrimina-
tory animus.” This standard meant that the con-
spirators in question had to be motivated
against a class of persons, not a particular polit-
ical or social issue. By creating this standard, the
Court sought to prevent § 1985(3) from becom-
ing a “general federal TORT law” that would
cover every type of private conspiracy.
Since Griffin, the Court has expressed mis-
givings about expanding the types of classes
protected by the statute. Using the Griffin stan-
dard, the Court later ruled in United Brother-
hood of Carpenters & Joiners v. Scott, 463 U.S.
825, 103 S. Ct. 3352, 77 L. Ed. 2d 1049 (1983),
that economic or commercial groups could not
be considered a class protected by the law. In
that case, the Court rejected a claim by
nonunion workers who had been attacked by
union workers at job sites.
During the 1980s and 1990s, lower federal
courts upheld the use of § 1985(3) against
antiabortion protesters who blockaded family
planning clinics with large demonstrations and
disruptions. In one ruling, a federal district
court held that an antiabortion group had con-
spired to violate the right to interstate travel of
women seeking to visit family planning clinics
(NOW v. Operation Rescue, 726 F. Supp. 1483
[E.D. Va. 1989]).
However, in a 1993 case, Bray v. Alexandria
Women’s Health Clinic, 506 U.S. 263, 113 S. Ct.
753, 122 L. Ed. 2d 34, the Supreme Court ruled
that § 1985(3) could not be used against
antiabortion protesters. The Court held that
women seeking ABORTION cannot be considered
