This week, the Klan Act was cited in a federal lawsuit aimed at those involved in the Jan. 6 attack on the Capitol. Filed by House Homeland Security Chairman Bennie Thompson (D-Miss.), the lawsuit accuses former president Donald Trump, his lawyer, Rudolph W. Giuliani, and members of the Proud Boys and Oath Keepers of conspiring in violation of the Klan Act to prevent Congress from certifying Joe Biden’s victory in the 2020 election.
The Klan, founded in Tennessee in 1865 by Confederate veterans, grew by 1867 into an armed paramilitary force that pledged to restore “a white man’s government” in the South. In disguises to shield their identities, Klansmen intimidated and murdered Black and White members of the Republican Party after Abraham Lincoln was assassinated. Klan violence peaked just before the 1868 and 1870 elections.
“We have just passed through an Election which, for rancour and virulence on the part of the opposition, has never been excelled in any civilized community,” South Carolina’s Republican governor, Robert K. Scott, wrote to Grant in fall 1870. “Colored men and women have been dragged from their homes at the dead hour of night and most cruelly and brutally scourged,” Scott reported, “for the sole reason that they dared to exercise their own opinions upon political subjects.”
The opposition, Scott told Grant, had declared “that they will not submit to any election which does not place them in power.” Klan sympathizers were even plotting to disrupt the vote tally. “I am convinced that an outbreak will occur here on Friday ... the day appointed by law for the counting of ballots,” Scott wrote.
Grant, elected president in 1868, had led the Union Army to victory in the Civil War. But as letters from his Southern supporters beseeched him for help, Grant realized that the Klan threatened to undo the U.S. government’s postwar efforts to create a multiracial democracy.
“Sir, we are in terror from Ku-Klux threats & outrages,” S.E. Lane, a woman in Chesterfield, S.C., wrote to the president in 1871. “Our nearest neighbor, a prominent Republican, now lies dead — murdered, by a disguised Ruffian Band, which attacked his House at midnight a few nights since. His wife also was murdered. … My Husband’s life is threatened…. We are in constant fear and terror.”
Grant responded by sending more federal troops to North and South Carolina to stop the insurrection. He named a new attorney general, Amos T. Akerman, a federal prosecutor from Georgia who had aggressively enforced the Civil Rights Act of 1866. Akerman moved the new Justice Department, created in 1870, into the Freedmen’s Savings Bank building in Washington. That symbolic solidarity with former enslaved people reflected his priorities. Akerman charged the Justice Department with upholding the 13th, 14th, and 15th amendments’ guarantees of civil rights to Black Americans.
In May 1870 and February 1871, Grant signed new laws, the Enforcement Acts, to protect voting rights in the South. And in spring 1871, the president lobbied Congress to pass anti-Klan legislation.
“There is a deplorable state of affairs existing in some portions of the South demanding the immediate attention of Congress,” Grant wrote House Speaker James Blaine on March 9. Grant asked the Congress to devote its spring session “to the single subject of providing means for the protection of life and property in those Sections of the Country.”
The Ku Klux Klan Act of 1871 — also known as the Third Enforcement Act — made it a federal crime to use “force, intimidation, or threat” to infringe on people’s rights to vote, hold office, testify in court and serve on a jury. Targeting the Klan’s tactics, the act also made it illegal to “go in disguise upon the public highway or upon the premises of another” to deprive anyone of equal protection of the law. The act also allowed victims to sue the perpetrators in federal court.
The law gave Grant the power to use the military to stop “insurrection, domestic violence, unlawful combinations, or conspiracies” against civil rights if a state’s government failed to act. And for a year only, the law allowed Grant to suspend habeas corpus if anti-civil rights conspirators organized a rebellion.
On April 20, 1871, Grant visited the Capitol to sign the Ku Klux Klan Act. Two weeks later, he declared that the U.S. government had “the duty of putting forth all its energies for the protection of its citizens of every race and color.” Grant ordered troops to “arrest disguised night marauders and break up their bands.”
For the taciturn Grant — who “could be silent in several languages,” a joke went — the fight against the Klan stirred his passion and resolve.
“Klan violence was unquestionably the worst outbreak of domestic terrorism in American history, and Grant dealt with it aggressively, using all the instruments at his disposal,” Ron Chernow wrote in his 2017 biography of Grant. “In pursuing the Klan, he showed to advantage his persistence, simplicity, and innate stubbornness.”
Akerman, the attorney general, went to South Carolina in September 1871 to oversee the effort. Federal marshals and troops arrested suspected Klansmen across North Carolina, South Carolina and Mississippi. In October, Grant declared martial law in nine South Carolina counties and suspended habeas corpus, prompting an estimated 2,000 Klansmen to flee the state.
Prosecutors won more than 1,000 convictions for Enforcement Act violations in the South between 1871 and 1873. Akerman got many Klansmen to confess to crimes and identify the group’s leaders in exchange for leniency. Klan leaders, convicted at trial by majority-Black juries, spent years in Northern prisons.
“By 1872, the federal government’s willingness to bring its legal and coercive authority to bear had broken the Klan’s back and produced a dramatic decline in violence throughout the South,” historian Eric Foner wrote in “A Short History of Reconstruction.” Suppressed, the Klan didn’t reemerge until two generations later, in 1915.
Grant’s successes defending civil rights didn’t last. A Northern backlash against military action in the South contributed to Grant’s Republican Party losing its House majority in the 1874 elections.
Once in power, the Democrats slashed the Justice Department’s budget for civil rights enforcement. By then, other white-supremacist groups had risen up to intimidate Black voters. Under intense political pressure, Grant hesitated too long to deploy federal troops to Mississippi before Election Day 1875. Grant’s Republicans lost the election there, as violence and intimidation kept Black voters from the polls.
“I should not have yielded,” Grant later said.
After Grant’s presidency, the Ku Klux Klan Act lay dormant for nearly a century. In 1883, a U.S. Supreme Court hostile to Reconstruction-era laws ruled one of the act’s criminal provisions unconstitutional. But much of the law survives today, as Title 42, sections 1983, 1985 and 1986 of the U.S. Code, which allow people to sue over violations of their civil rights. Section 1983 has become an important legal tool against police misconduct.
And this past December, the NAACP sued former president Donald Trump and the Republican Party under the Ku Klux Klan Act, alleging that they conspired to interfere with the civil rights of Black voters in Michigan. The case is pending in federal court.
Correction: The U.S. Supreme Court ruled one of the act’s criminal provisions unconstitutional, not all the criminal provisions.
Erick Trickey is a Boston-based freelance writer who teaches magazine journalism at Boston University.
Read more Retropolis: