Academic journal article The Journal of Southern History

National Policing, Lynching, and Constitutional Change

Academic journal article The Journal of Southern History

National Policing, Lynching, and Constitutional Change

Article excerpt

IT COMES AS NO SURPRISE TO LEARN THAT THROUGH THE 1920S AND 1930s, the national government insisted it had no jurisdiction to investigate lynching and instead waged a campaign against black militancy. The greater surprise to historians comes from the period between 1940 and 1952, when the Department of Justice (DOJ) abruptly reversed itself and sent agents of the Federal Bureau of Investigation (FBI) into the South to investigate reported lynchings. (1) For good reason, history has not been kind to the FBI. While some Americans had cast a wary eye at the FBI since its inception in 1908, the most serious blow to the FBI's image came in the 1960s when civil rights workers complained bitterly that agents would not protect the activists from racist vigilantes but preferred to investigate the civil rights advocates' communist connections instead. Congressional investigation subsequently confirmed FBI misconduct and did so at a time when the state generally became "unloved," to use Martin J. Wiener's term. Many observers concluded that the FBI, "suffused" with a political conservatism that controlled its performance, had always been "disinclined" to investigate lynchings. Such concerns led one writer to roughly dismiss the FBI as "that crook-, commie-, and coon-fighting bureaucracy" and to say that when Franklin D. Roosevelt expanded the FBI's jurisdiction to include civil rights violations, the change came "in theory if rarely in practice." No doubt the federal government compiled a shameful record during the 1960s, but scholars have too often allowed formulations derived from that decade and later to color their understanding of the FBI's entire history. (2)

It is not the purpose of this article merely to argue that in the 1940s the national government fought lynching more than theoretically and investigated reported incidents invariably rather than rarely. Instead, this article looks at one feature in the rise of the administrative state, an incident at the beginning of the dramatic enlargement of the national government's power to police crime. In particular, this article examines the distinct theme proposed by Robert Post: "the growth of the belief that the nation," and not the states, "was a natural unit of democratic self-determination." Prohibition represented a false start at making the nation into that unit, a failed attempt by the U.S. government to articulate a supposed agreement by most Americans, across state lines and regional divisions, that liquor had to be banned. Seven years after that effort collapsed, the U.S. government tried again, this time promoting opposition to mob violence based on constitutional rights that came to be more real than the evangelical moralism that supposedly underlay Prohibition and thereby contributed to a more enduring nationalization of crime control. To explain how this happened requires looking at why the Department of Justice first found it constitutionally impossible to investigate lynching, how the department then discovered its constitutional authority to combat lynching, and how promoting national rights expanded the administrative state. (3)

Americans' ideas about law enforcement have stemmed from three sources that evolved as the nation broadened its conception of popular sovereignty. In the nineteenth century the authority to control crime lay in neighborhoods and communities. In this highly localized world where local jurisdictions struggled to maintain order with little outside help, Americans sometimes rationalized lynching as so-called lynch law, a constitutionally legitimate expression of popular sovereignty outside statutory law. Owen Wister explained the concept in his novel The Virginian, in a dialogue between characters named Molly Wood and Judge Henry. Wood begins by defining lynching as when "[o]rdinary citizens take the law in their own hands." The judge responds, "Out of whose hands do they take the law?" Wood answers, "The court's." In response to further questioning, she says that the Constitution made the courts and then concedes that the people made the Constitution. …

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