The City of Miami Beach and the Ku Klux Klan Act

Published on May 2016 | Categories: Types, Creative Writing | Downloads: 51 | Comments: 0 | Views: 419
of 13
Download PDF   Embed   Report

The Fire Sprinkler Case. Beware the Ides of March




Klansmen (Miami Beach officials?) trying to lynch a carpetbagger (Rod Eisenberg?) in 1871 (2011?)

SERIES: The Fire Sprinkler Case

Beware of the Ides of March
26 February 2015
South Beach—Tourists staying at the Sadigo Courtyard Apartment Hotel were duly terrorized
when City of Miami Beach officials rode in to raid the historic establishment, throwing them out
on the street with their luggage and arresting proprietor Rod Eisenberg for letting out his statelicensed short-term rental apartments without getting a local license for a short-term rental
hotel, which they would not let him change for short-term rental apartments (they have
kitchens) unless he installed $100,000 worth of fire sprinklers, as if the change in paperwork
Page 1 of 13

would make the 70-year old structure a brand new hotel. One reason given by officials for the
necessity of this change was he devoted a room on the ground floor to prepare cold food for
guests; that presumably made it a “restaurant,” so the apartments suddenly constituted a
hotel. According to Eisenberg, that was all a pretext for vengeance wreaked on him by the
official Good Old Boy clan for exposing their negligence and corruption in the past, and refusing
to pay for protection by invisible means to support their unseemly racket. Indeed, he had an
ongoing feud with the powerful clique running back to the time it ruined his dream of operating
an Art Deco Welcome Center and Gift Shop with the Design Preservation League on city
property, rigging the bid for the lease. If it were not for that feud he might presently be a Good
Old Boy himself.
Alas that Eisenberg is a Man of Principle in notoriously corrupt Miami Beach. Federal judge
Cecilia M. Altonaga relied upon a specious doctrine of municipal immunity to summarily dismiss
his civil rights suit against the city on 16 December 2014. His pursuit of principles has rendered
him a virtual ATM machine for lawyers. His potential damage including attorney fees and court
costs is around $4 million.
Eisenberg’s counsel in the federal case cited two of several surviving sections of the Ku Klux
Klan Act, passed by the Forty Second Congress in 1871, within a month of President Ulysses S.
Grant’s request for legislative authority to suspend habeas corpus and employ federal troops to
put down the Klan during the Reconstruction Era, as the statutory basis for Eisenberg’s claims:
Sections 1983 and 1988.
Section 1988, “Proceedings in vindication of civil rights,” authorized federal courts having
jurisdiction to apply common law as well as statutory law to civil rights litigation in civil and
criminal cases providing that the application was consistent with the United States Constitution,
and allowed the prevailing party to recover costs including attorney fees and expert fees.
Section 1983 “Civil action for deprivation of civil rights,” was intended to compensate victims of
past abuses and serve as a deterrent against future constitutional deprivations. Injunctions
could enjoin the Klan from engaging in future violations, but could not compensate the victims.
The Klan disbanded and virtually disappeared under pressure from the national government.
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress, except
that in any action brought against a judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated
Page 2 of 13

or declaratory relief was unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be considered to be a statute of the
District of Columbia.”
The offending “persons” might be sheriffs, prosecutors, judges and jurors as well as “riotous”
Klansmen and other masked outlaws.
The Ku Klux Klan Act provided federal teeth to enforce the Civil Rights Act of 1866, the
Thirteenth Amendment of 1865, the Fourteenth Amendment of 1868, and the Fifteenth
Amendment of 1870. Southern states were particularly concerned that Section 2 of the
Thirteenth Amendment passed by Radical Republicans would allow Congress to pass laws
interfering with their traditional white supremacy rights. The so-called Black Codes of certain
states like Mississippi and South Carolina were employed to shield persons from responsibility
for violence against blacks. Hence the Civil Rights Bill was drafted. The Republicans believed
that the prohibition of slavery and involuntary servitude and other rights then being considered
should apply to all persons whether acting in their official or private capacity. The opposition
disagreed, and speciously argued that, if state officials were prohibited from depriving people
of their civil rights, then private persons would naturally refrain from doing so.
Only nineteen decisions in civil cases were rendered according to Section 1983 in the first sixtyfive years after its adoption in 1871, but then it would be taken up with a vengeance by people
of all colors and classes. Attorneys would initially argue that Congress intended civil rights
legislation to protect Negroes only, and that it was not needed to protect whites. Judges made
short shrift of that defensive posture, and refused to discriminate in favor of Negroes to the
detriment of whites. Ironically, even Klan members have taken advantage of the legislation to
assert their rights as such.
It seems quite a stretch to compare the government of the City of Miami Beach with the Ku
Klux Klan, even though several of its departments have been called Racketeer Influenced
Corrupt Organizations in court documents. And Edward H. Dixon, in The Terrible Mysteries of
the Ku-Klux-Klan (1868) identified patriotic government officers as the Klan:
"Who is the starry Ku-the Right Hand of the Ku-Klux Klan?" Then I spoke: "I believe the mighty
starry Ku to be the power of the United States Government, as represented by its soldiers
stationed in the South. I believe many of these are members of the holy Klan, and will strike for
the white race, and crush the negro under their heel! I believe the Sinner to be the Radical
Congress, and that its own sword will smite the hip when the Klan is ready for the spring. The
health to be born out of rottenness, is the reconstruction of the States after the negro race is
swept away." Then the voice said: "Brother—and brother thou mayst be—thou hast read
rightly the first page of the Book of Klan!"
Page 3 of 13

Today, in Miami Beach, disgruntled businessmen and residents, intending no insult to Italians,
often refer to the police, fire, code compliance, building, and parking departments as a “mafia”
and as members of a corrupt clan of Good Old Boys. Whereas the Klan outlaws disguised
themselves with white sheets and become members of the Invisible Empire of the South,
morally and criminally corrupt city officials cloak themselves with the invisible corporate
authority of the offices into which they narcissistically submerge themselves. Unless the
miscreants are caught red-handed committing some flagrant misdeed, which is difficult to do
because it is unlikely that persons giving or receiving special privileges will complain, they and
their municipal corporation are magically shielded from liability as if they were kings of old in
possession of crowns.
Even in cases of gross negligence, Florida officials and their employers will claim the sovereign
immunity of kings; for example, as per the unconstitutional precedent set by the state supreme
court in Trianon Park Condominiums v. The City of Hialeah (1985), wherein it was proclaimed
that, “The government clearly has no responsibility to protect personal property interests or
ensure the quality of buildings that individuals erect or purchase for there has never been a
common law duty to individual citizens for the enforcement of police power functions.” Of
course that “principle” can be applied to all sorts of government functions.
Florida is a sort of swampland in which pluralism thrives, and a lot of people like it that way.
Florida lawyers are disinclined to challenge the Hialeah disguise for local corruption, and judges
are certainly disinclined to overturn it. After all, judges execute political legislation and are
legislators themselves, and as such they will do what is practical, finding their standards of
utility and morality in the communities they serve; in that capacity they are absolutely immune
from liability for their mistakes, at least in theory. Wherefore the forlorn person who sues the
government should keep in mind, notwithstanding the so-called independent branches of
government, that the government will make the final decision and shall be more than hesitant
to hold itself liable unless it is pragmatic or practical to do so under the social circumstances of
the time.
There are times the judge would fain enter the courtroom in white sheets and hood instead of
a black robe, recalling that a judge was shot and a black man defenestrated in court and then
had his throat slit while under guard during the Meridian Klan riots. Since Eisenberg is a Man of
Principle who refuses to lose and is inclined to sue officers of the court for bungling his case, he
would try to bring a civil rights action under Section 1983 against judges who rule against him if
it were not for the U.S. Supreme Court’s judicial legislation, 107 years after the Klan Act was
passed, in Stump v. Parkman (1978) holding judges absolutely immune from civil liability for
even the worst behavior conducted under the color of their robes.

Page 4 of 13

Ironically, the first arrest under the Klan Act was of a black freedman. Militant blacks were
angered. Thirty of them would be murdered. Political leaders assassinated when the Klan ran
riot throughout the South included Arkansas Congressman James M. Hinds, three members of
the South Carolina legislature, and several men who served in constitutional conventions.
Notwithstanding sovereign immunity, which despite statutory waivers still survives in the
United States because the great majority of people do love to be ruled, even absolutely
immune “kings” may lose their heads.
That is not to say for sure that City of Miami Beach officials deliberately attempt to deprive
people of their civil rights with malicious intent. We cannot read their minds. Good intentions
alone were good enough for Kant: “Nothing can possibly be conceived in the world, or even out
of it, which can be called good, without qualification, except a good will.” And their intentions
may be good for all we know although we may infer otherwise from their conduct: “A good will
is good not because of what it performs or effects, not by its aptness for the attainment of
some proposed end, but simply by virtue of the volition.”Their institution may blind them to the
systemic corruption evident to outside observers. What appears to us to be a deprivation may
seem to them to be their effort to protect the community from an assault on its mores, its way
of living.
Florida has a long history of prejudice with or without Ku Klux disguises, so long that it survives
as institutional blindness among persons with good intentions who discriminate against one
class of persons or another. We recall that South Beach residents and businesses were greatly
relieved by the city’s massive police response to the annual Black Week aka Urban Beach Week
after police rioted on Collins Avenue in 2011, pumping 116 bullets into Raymond Herisse as he
sat in his car. Few cared whether the shooting was formally justified inasmuch as it was the
tipping point that led the police power to deploy its troops to rebuff the descent of thousands
of Negroes onto the beach each year to celebrate their color. Quite of few were disrespectful,
and hundreds were arrested each year; most of the serious crimes were committed by local
blacks from metropolitan Miami. The troubled Miami Beach police department was praised for
the crackdown.
Just last year the city fire, police, and code compliance departments shut down an Urban Week
party and fined Floyd Bostic, the black promoter, a thousand dollars because they thought the
law might be broken because there was a crowd on the sidewalk at the nightclub. He appealed
to the special magistrate, the right arm of the city prosecuting him. She denied the appeal on
the ground that he should be liable because the white man who owned the property and the
nightclub operation was late paying his annual business license tax. That man happened to be
Scott Robbins, the good old boy who runs the aforementioned unlicensed hotel on Espanola
way, and is with the mayor a partner with the city in a major parking lot, shopping center
Page 5 of 13

development. The special magistrate seemed surprised to hear that the unassuming black
fellow even had twenty grand to deposit with the Robbins’ company; money that he lost thanks
to her; that is, unless he cares to sue the real estate titan. Another twenty large would have had
to be shelled out to a lawyer to appeal the case to a real court, at which time the city attorneys
would step in with virtually unlimited taxpayer resources to defend. Note that at present the
city wants $800,000 in legal expenses for defending against the Eisenberg suit.
City Attorney Raul Aguila and City Manager Jimmy Morales did not respond to my requests to
dismiss the case against Bostic or waive the fine, which they have done for the right people in
the past. They and most residents familiar with the event probably believe that the statement
of Hernan Cardeno, Esq., the sworn police officer who directs the code compliance department,
is true, that Bostic came down here to get away with something illegal knowing that officers
would have their hands full during Black Week. Good riddance, and may God bless them for
riding to the rescue before minors were served, people knifed and shot, women raped, and
properties trashed! After all, in a world where faith in authority not works saves, did they not
have good intentions?
Annie Cooper Burton, in her apology for the Klan, The Ku Klux Klan (1916), declared that, “Their
purpose was to scare into submission the unruly free negroes and the troublemaking
carpetbaggers; and this purpose they accomplished, without one drop of blood being shed,
except in the most extreme cases. Whenever an undesirable citizen was not wanted, he
generally found a note tacked to his door saying that if he did not move on within twenty-four
hours he would be visited by the Ku Klux Klan. Signed "K. K. K," The man generally "moved on"
long before the stipulated time…. The stigma attached to the name Ku Klux Klan by the
uninformed masses has, at this late day, been practically removed, thanks to that Southern
author, Thomas J. Dixon, who through ‘The Clansman’ swayed public opinion the right way; and
thanks again to that master director, David W. Griffith, another Southerner, who filmed this
wonderful story and set the people to exclaiming, ‘Why, the Ku Klux Klan was a grand and noble
order! It ranks with the best.’”
Thomas Dixon had penned a mission statement for the Klan in 1868 in “The Terrible Mysteries
of the Ku-Klux-Klan”: "Who is the starry Ku-the Right Hand of the Ku-Klux Klan?" Then I spoke:"I
believe the mighty starry Ku to be the power of the United States Government, as represented
by its soldiers stationed in the South. I believe many of these are members of the holy Klan, and
will strike for the white race, and crush the negro under their heel! I believe the Sinner to be
the Radical Congress, and that its own sword will smite the hip when the Klan is ready for the
spring. The health to be born out of rottenness is the reconstruction of the States after the
negro race is swept away." Then the voice said: "Brother—and brother thou mayst be—thou
hast read rightly the first page of the Book of Klan!"
Page 6 of 13

Thomas Dixon’s 1905 book “The Clansman” and D.W. Griffith’s 1915 smash box office hit “Birth
of a Nation” inspired the 1915 revival of the Klan by Protestant nativists around Atlanta and
made Dixon a millionaire. In addition to the usual blacks, the revivalists hated Jews, Catholics,
unions, and foreigners. The fact of the matter is that their predecessors killed thousands of
blacks after they were freed to roam the South in want of work, ten times the number of
people slain by the black militias that fought back. As for scaring blacks out of their wits, a
grand jury in 1870 described the Klan as a “terrorist organization.” The infamous Black Codes,
designed to maintain white supremacy and restore the way of life enjoyed before the Civil War,
prohibited colored people from owning property, entering into contracts, performing certain
kinds of work, settling in certain areas, marrying whites, and so on. Vagrancy was a crime for
which blacks were picked up and sentenced to work for whites landowners; poor whites were
exempted by paupery. Freedom was just as bad as slavery to many freedmen.
The Black Codes of Florida, where hundreds of blacks and their supporters were murdered by
the Klan, were some of the worst in the nation. Eisenberg and other Floridians subjected to
discriminatory enforcement and malicious prosecution nowadays for protesting against
inequity and injustice are not surprised to hear that police, prosecutors, and judges applied
Florida’s facially racist Black Codes in a discriminatory manner according to their prejudicial
discretion in those good old days when decent white Floridians looked forward to restoration of
slavery in the state.
Mark Adams, a lawyer disbarred after accusing a judge of misconduct, said, after reading a
rough draft of this essay, “The Klan was very much alive in Florida in the 1980s. You would still
see them in full regalia in rural North Florida just 30 minutes north of Gainesville. By the way, I
served in the National Guard from 1980 to 86, and I was asked to join the Klan several times.
They even gave me the Klan joke book. It was pretty funny, but unfortunately, it disappeared
along the way. Anyway, I always said thanks, I'll think about it. Also, I think that most National
Guard and Reserve officers in Florida were Klansmen then. After all, that was always who
would ask me to join. I expect that the same can be said for most, if not all, of the Southern
states then, and I doubt it is much different now. After all, when a group of scumbags get in to
power, they tend to perpetuate their hold on power.”
Yes, the spirit of the Klan lives on. Just last year Florida police officers were accused of being
members of the Klan, and Klan members claimed even judges as their knightly brethren.
Nowadays one does not have to be black or female or gay or Jewish or foreign et cetera to have
his civil rights violated: membership in the class of persons who overtly oppose the Invisible
Empire whose misdeeds are cloaked by the color of law is sufficient.
Now Eisenberg’s attorneys must have thought they had a winnable case when they filed the
suit based on the Ku Klux Klan Act against the City of Miami Beach. On its face it did appear that
Page 7 of 13

the city’s knights, its grand and noble city officials, had deprived Eisenberg of his civil rights
under color of law, and that there was sufficient circumstantial evidence and witnesses hostile
to the city regime to believe that direct evidence of culpability would turn up during
No, Eisenberg is not a colored man nor is he a member of a so-called protected class other than
that class of beings guaranteed the natural right to life, liberty and property under equal
protections of the laws. Yes, Jews and Hispanics on Miami Beach were discriminated against by
white Protestant settlers, but today Jews dominate the city commission and Hispanics
dominated by Cuban-Americans run the city for them. No, blacks have not caught up; the city
does not have blacks on the commission or managing the city; many of them have sanitation
In any case brought under 42 U.S.C. 1983, the principles employed by Congress to protect
Negroes presumably apply to every citizen and non-citizen: “Every person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress….”
Officials and private individuals acting under government auspices are therefore prohibited by
law from abusing their power “under color” of law, pretending that the law provides them with
discretionary authority to break the law, to deprive others of their civil rights. The complexity of
law including the common law interpretations of conflicting statutes patched together provides
cover for abuses of power under the color of legality, much to the profit of the legal profession
and the vested interests.
Actual enforcement of the anti-Klan Act relied on a plethora of different local codes that
underwent less scrutiny than statewide legislation. Even under military rule, local jurisdictions
were able to continue a racist pattern of law enforcement as long as it took place under a legal
regime that was facially race-neutral. The Supreme Court upheld racially discriminatory state
laws and invalidated federal efforts to counteract them. What Solomon said applies today to
the Sunshine State, swamped by laws that are selectively enforced and by irresponsible
pluralism: there is nothing new under the Sun.
As a matter of fact, despite the metaphorical rhetoric, the City of Miami Beach is not a Ku Klux
Klan organization per se. The federal judge who threw out the case before it could get to a jury,
Cecilia M. Altonaga, Yale Law School graduate, member the Cuban-American Bar Association, is
the first Cuban-America woman to be appointed a federal judge in the United States. Florida’s
Page 8 of 13

Cuban-American community wanted to see her sitting on the United States Supreme Court. She
was reportedly on President George W. Bush’s short list for the nomination, but retiring Justice
Sandra Day O’Connor’s seat went to Samuel Alito instead. If she were a member of the Invisible
Empire of the South as such or a member of a subversive or terrorist organization, she might be
impeached by Congress, which held its own members unimpeachable in the case of Senator
William Blount long ago, but she would not be subject to Section 1983 since the U.S. Supreme
Court granted their kind absolute immunity. The constitutional torts not to mention the crimes
of lawyers and their affluent clients have a tendency to be legalized by members of the bar.
Altonaga is undoubtedly subject to the parochial biases of the Cuban-American community that
predominates over the local governments of South Florida. The 42 nd Congress that passed the
Ku Klux Klan Act was perhaps overconfident in federal courts to overcome the parochial
prejudices of state courts. As Congressman John Coburn explained at the time, "The United
States courts are further above mere local influence than the county courts; their judges can act
with more independence, cannot be put under terror, as local judges can; their sympathies are
not so nearly identified with those of the vicinage; the jurors are taken from the State, and not
the neighborhood; they will be able to rise above prejudices or bad passions or terror more
easily. . . . We believe that we can trust our United States courts, and we propose to do so."
[Cong. Globe, 42d Cong., 1st Sess., 460.]
Altonaga is indeed an esteemed member not only of the South Florida Establishment but of the
most highly privileged class, the authoritarian power elite of American, with all its biases and
prejudices including the feeling that authorities such as she should be nearly as immune as a
sovereign queen and the crown estate or demesne from liability for abuses of power, for there
would be no law therefore anarchy would prevail if the source of law were not immune.
That being said, we shall see that she misapplied the principles of the Ku Klux Klan Act that led
to her final summary dismissal of Eisenberg’s complaint. Her logic derived from convoluted
precedent to absolve the city of liability was erroneous. The anti-Klan act was intended to curb
the deprivation of federal rights by vigilantes acting under color of local racist codes. That could
be done by holding the vigilantes as well as local officials accountable in federal courts, and by
the use military force against Klan members if necessary, but nearly all the prosecutions were
against Klan members, and not against public officials such as sheriffs riding with the Klan.
In Eisenberg’s case, there is no vigilante clan distinct from the police power. City of Miami
Beach officials are not members of the Ku Klux Klan, nor are officials supporting privately
organized vigilantes, although they may be considered metaphorically as a claque or criminal
circle or kuklos. If officials are miscreants in the context of Eisenberg’s complaint, they are a
clan of profiteering racketeers, or just bullies abusing their official positions because they can
get away with it. We will elaborate on this at some length elsewhere.
Page 9 of 13

We reiterate, the City of Miami Beach, which is not the community but is rather its constituted
government, with a businesslike or fascist constitution without separation of powers, is not a
Ku Klux Klan. Yet the kuklos or claque or circle that dominates it can be a circle just as vicious in
its conduct of business albeit more subtly so. And given its sovereign power it may be even
more unjust than a Ku Klux Klan given the legalization of the malfeasance of its officers
narcissistically submerged in the artificial corporate personality that shields them from liability
in courts of law presided over by justices who themselves have reason to rejoice in the
immunity enjoyed by tyrants of yore.
Rod Eisenberg discovered that it does not pay to expose corrupt officials and to fight city hall
when it retaliates, for doing so creates a debt greater than the reward, especially if one does
not take the big chance and go all the way to the Supreme Court. The lower court eventually
dismissed all seven counts of his original complaint. So the city won 7 to 0, and he is out a small
fortune in fees and court costs not to mention the psychological distress he and his family must
suffer as a consequence of having his noble cause against the bullies dismissed. Mind thee that
the fat lady has not yet sung. A Man of Principle hates to lose the cosmic struggle between
good and evil, and may pursue his principle until the death of Time, where the primitive
principle of the law, vengeance, is realized at last. In this kind of situation, he may attempt to
reopen the case, arguing fraud on the court, and sue the lawyers on both sides.
People kept tallies with marks on hides and cuts on sticks before they inscribed tales on
papyrus and parchment. The principle of a thing may be worth more than the money at stake.
Eisenberg is not talking, at least not to this author. Doubtless he could tell a tale of woe, of how
certain City of Miami Beach officials acting under color of civilized law retaliated against him,
wreaking primitive vengeance on him for exercising his rights as a citizen, and how he sought
justice under the Constitution in federal court, where the city’s cavilers played the summary
judgement game, hemmed him in with legalese, then jumped out the window Scot free before
a jury had a chance to consider the facts he and his legal team had collected to prove his case.
That is not to say that a jury would decide in his favor. We cannot say so because we are not
allowed to attend to a trial, where it might be argued that the Sadigo, after serving tourists for
70 years, was cited for a relatively new fire requirement in 2006 after the place supposedly
came to the attention of inspectors because Eisenberg built a cold food service area; so, instead
of installing sprinklers he kept complaining and appealing, operating without them for 6 years,
although three professionals he retained through his lawyer said the sprinklers are required for
his transient lodging operation; and, after the hotel was shut down the second time and he was
arrested for serving alcohol without a license and for resisting arrest without violence, to which
he lately pled no contest, he filed the federal complaint. The jury may want to know, then, if
saving money is the motive, or is it the principle of the thing, since own Eisenberg’s legal
Page 10 of 13

expenses, estimated at $650,000 to date, not to mention the city’s legal expenses estimated at
$800,000, exceed the cost of installing sprinklers, estimated to be less than $100,000; and the
jury will want to see and hear evidence of personal discrimination or that the ordinance itself
discriminates against his class.
That being said, the summary judgment forgoing trial causes this author, pending further
investigation, to be more interested in the Constitution than the merits of the case. The
Constitution with its civil rights against the constituted government is a fulcrum for
controversies subject to essentially irrational judicial legislation, much to the profit of the legal
profession on both sides of controversies. Even the highest court in the land has rationalized
the gravest deprivation of the so-called natural rights against the tyranny alluded to in the
Declaration of Independence and elucidated as Amendments to the Constitution, and has
furthermore done its level best to render federal civil rights legislation useless.
Take for example the notorious Cruikshank case brought by the United States in 1878 under the
anti-Klan Enforcement Act of May 31, 1870, “An Act to enforce the Right of Citizens of the
United States to vote in the several States of the Union, and for other Purposes,” which
reasserted the Civil Rights Act of 1866 and was intended to enforce the Fourteenth
Amendments, and the Fifteenth Amendments, both of which provided Congress with the
power to enforce their provisions by appropriate legislation.
Section 6 of the Enforcement 1870, upon which the general charge was brought reads, “And be
it further enacted, That if two or more persons shall band or conspire together, or go in disguise
upon the public highway, or upon the premises of another, with intent to violate any provision
of this act, or to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or
hinder his free exercise and enjoyment of any right or privilege granted or secured to him by
the constitution or laws of the United States, or because of his having exercised the same, such
persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned,
or both, at the discretion of the court, — the fine not to exceed $5,000, and the imprisonment
not to exceed ten years; and shall, moreover, be thereafter ineligible to, and disabled from
holding, any office or place of honor, profit, or trust created by the constitution or laws of the
United States.” (16 Stat. 141)
Black Republicans and white supremacist Democrats disputed over 1872 election results in
Grant Parish, Louisiana. The Republicans armed themselves and took over the Colfax
courthouse. Democrats surrounded them with twice their number and took prisoners after a
three-hour battle. Led by William Cruikshank, a white man, Democrats murdered upwards of 40
prisoners. The general charge against the defendants was of “conspiring” and “banding”
together in violation of the 1870 Act to injure, oppress, and intimidate the Negroes in the
exercise of their constitutional right to vote.
Page 11 of 13

They had no such federal right, stated Chief Justice Waite in the court’s opinion, because “The
people of the United States resident within any State are subject to two governments: one
State, and the other National; but there need be no conflict between the two. The powers
which one possesses, the other does not,” and the right to vote is belongs to the state, not to
the nation, according to the previous line of reasoning of the court: “From this it appears that
the right of suffrage is not a necessary attribute of national citizenship; but that exemption
from discrimination in the exercise of that right on account of race, is. The right to vote in the
States comes from the States; but the right of exemption from the prohibited discrimination
comes from the United States. The first has not been granted or secured by the Constitution of
the United States; but the last has been.” Too bad that the government attorneys forgot to
mention race or color as specified in the statutes, noted the chief caviler: “It is nowhere alleged
in these counts that the wrong contemplated against the rights of these citizens was on account
of their race or color.”
Furthermore, they had no First Amendment right to peacefully assemble and Second
Amendment right to bear arms, for those amendments were not intended to limit the powers
of the states in regards to their own citizens, but to limit the operations of the federal
As for the Fourteenth Amendment, “The fourteenth amendment prohibits a State from
depriving any person of life, liberty, or property, without due process of law; but this adds
nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty
against any encroachment by the States upon the fundamental rights which belong to every
citizen as a member of society.”
Gee whiz, just what are the fundamental rights belonging to every individual against state
encroachment, and who is responsible for enforcing them? That depends on the social
prejudice and individual whim of the judges sitting on the bench as to what the general law is
regardless of the particular facts, providing that their decisions are respected no matter how
irrational and unjust.
What the court actually affirmed and condoned in Cruikshank, in its interpretation of laws
intended to protect blacks against white supremacism and acts declared terroristic by Congress,
was white supremacism and terrorism. Who said the “Invisible Empire of the South” had
It is no wonder that Thomas Jefferson wanted to smother the Supreme Court in its crib and
plotted to unseat judges by way of impeachment, a process he said was a farce. A notion was
bandied to let the Congress and not the court declare and legislate its intention, perhaps on

Page 12 of 13

appeal to the Senate as if it were a House of Lords. No thank you, however, for we live in the
best of all possible countries.
Now in Eisenberg a federal judge has erroneously relied on a specious common law doctrine,
which is a species of the ancient principle sovereign immunity. No, he is not talking about this
defeat at the hands of tyranny, at least not yet. CBS reported his promise to fight this case to
the end at the outset, but now he has pulled up short of appealing on an issue far more
important than his personal injuries: the court finally held that the city, as a matter of law, is
not liable for the deeds of its employees, as would be the employees of a private corporation,
so game over. Perhaps he has learned his constitutional lesson after taking sovereign
government to task for its abuse of power, that free speech and the right to petition the
government guaranteed by the Constitution may result in the deprivation of the very rights

Page 13 of 13

Sponsor Documents

Or use your account on


Forgot your password?

Or register your new account on


Lost your password? Please enter your email address. You will receive a link to create a new password.

Back to log-in