Andrew Johnson and the New Orleans Riot

Over at the Volokh Conspiracy, Kurt Lash has been guest blogging his new book on the Privileges or Immunities Clause of the 14th Amendment. Kurt has brought forward a host of new materials and arguments that are of significant interest. Kurt argues that the Privileges or Immunities Clause merely incorporates the Bill of Rights; it does not protect equality as to state privileges or immunities (as in John Harrison’s theory) or substantive rights as to state and natural law privileges or immunities (as in Randy Barnett’s theory).

While I have some questions about Kurt’s theory, it is nonetheless of significant interest. Today, however, I want to focus on an important bit of evidence that Kurt discusses: a New Orleans riot. Kurt writes:

The Democrats’ argument exploded that July in a bloody riot in New Orleans. Louisiana freedmen had assembled in a convention to discuss amending the state constitution. In response, local officials organized an attack on the convention that left 40 freedmen dead, with hundreds more wounded. Instead of condemning the attacks, Johnson encouraged local officials to suppress any further “illegal assemblies,” and blamed the Republicans for encouraging the freedmen to engage in an inflammatory assembly. Johnson’s response was a huge political blunder.

While this riot was an important event leading to the 14th Amendment, I want to focus on a different aspect of it. The Republicans would later impeach Andrew Johnson, doing so on the fairly problematic grounds of his refusing to enforce a statute that people today would regard as unconstitutionally infringing on his executive power to remove cabinet officials. Perhaps a better basis for impeaching Johnson would have been his possible participation in and inadequate response to the bloody riot in New Orleans. According to this Harper’s Weekly article, “It is shown by that record that the riotous attack upon the Republican Convention, with its terrible results of massacre and murder, was planned and executed by the Mayor of New Orleans, and that it had the countenance of President Johnson, without which it would never have taken place.” Such actions might have been a genuine high crime and misdemeanor unlike the action for which Johnson was impeached – the testing of a likely unconstitutional law.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. Devin Watkins says

    I don’t think Kurt’s theory of the P&I clause is that different then Randy Barnett’s. Both of them believe it protects all rights guaranteed under the federal constitution. Randy Barnett disagrees with Kurt not on the P&I clause but on the meaning of the 9th amendment. Randy Barnett sees the 9th amendment as “The enumeration in the Constitution, of certain rights, [such as the first amendment] shall not be construed to deny or disparage [meaning they must be enforced equally to the first amendment] others retained by the people [which are all the rights to do all those things which do not harm others].”

    Kurt sees the ninth amendment as a protection of unenumerated rights as well, just he sees those unenumerated rights as those rights protected by state governments and therefor no different then the 10th amendment, and as the 9th amendment doesn’t directly protect any rights the P&I clause doesn’t apply (or any more then in a general sense).

  2. djf says

    Mike,

    Does Lash explain how his privileges/immunities theory meshes with the recent article by Ryan Williams dealing with the respective original meanings of the Due Process Clauses in the 5th and 14th amendments?

  3. Mike Rappaport says

    Devin: As I understand Randy’s argument, he believes that the PI Clause protects “unenumerated rights” on its own, not based on the 9th Amendment.

    Djf: I am not aware that he does.

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