1871 Provides a Road Map for Addressing the Pro-Trump Attempted Insurrection

The invasion of the U.S. Capitol building Wednesday was shocking in many respects, as was the continued determination of some members of Congress to obstruct the certification of President-elect Joe Biden’s victory in the wake of these violent actions. Now the question is: How should the federal government respond? It is clear the current administration will do nothing; Congress abdicated all responsibility for reaction and declared a recess. When Biden takes office on Jan. 20, he and his administration will be tasked with responding. And when they do, they should look not to 1876, as many politicians and commentators have been arguing, but to 1871.

That year, Congress and President Ulysses S. Grant initiated a campaign to punish members of the Ku Klux Klan. This terrorist organization, founded in 1868 in Tennessee in defense of white supremacy, had spread across the South in a matter of months. Klan members convened at night, donned disguises and rode through the countryside beating, whipping, raping and killing Black (and some White) Southerners who dared claim their rights provided by the 13th, 14th and 15th amendments in the aftermath of the Civil War.

In response to this escalating violence, Congress passed the first Enforcement Act in May 1870. This legislation reasserted the rights of male citizens to vote and made it illegal to “hinder, delay, prevent, or obstruct” those rights by “force, bribery, threats, intimidation, or other unlawful means.” It also explicitly outlawed the tactics of the Ku Klux Klan, deeming it a felony for two or more people to conspire together “or go in disguise upon the public highway” to violate the rights of their fellow citizens.

And yet, violent assaults on Black and White Republican voters only escalated, reaching a peak before and after the midterm elections. As a result, the next year, Congress passed two additional enforcement acts. These enabled the federal government to exert pressure on states denying their citizens equal protection and voting rights. The third act brought Klan violence under federal jurisdiction, and allowed Grant to declare that actions that sought to overthrow or defy federal authority constituted a “rebellion against the government of the United States.” To suppress this rebellion, the president could lawfully suspend the privileges of the writ of habeas corpus, allowing military authorities to arrest Klan members immediately.

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The effects of these actions were, unfortunately, only temporary. Congress grew tired of focusing on Southern violence, and by 1874, the Justice Department ceased its prosecutions of Klan members. As Akerman (whom Grant fired in December 1871) told a friend, Black Southerners should no longer look to the federal government for aid. “The Northern mind, being full of what is called progress,” he observed, “runs away from the past.”

This federal abandonment of the defense of civil rights is one of the great horrors and tragedies of our nation’s history. But the events of 1871 provide essential historical lessons for the Biden administration and our legislators today.