When the Rule of Law Breaks Down: Implications of the 1866 Memphis Massacre for the Passage of the Fourteenth Amendment
Date of Award
Master of Judicial Studies (LL.M.)
Duke University School of Law
Scholars typically discuss the rule of law as an abstract concept, rather than a practical reality susceptible to failure. The Memphis Massacre of 1866 provides a valuable case study in the failure of foundational principles of the rule of law. After the Civil War, in Memphis, Tennessee, there was a massive influx of former slaves, coterminous with the state stripping former Confederates of their right to hold office. In May 1866, racial terror enfolded the city, and for three days, police and local officials led a massacre of dozens of African-American men, women, and children. The City was set ablaze, resulting in mass burning of homes, schools, churches, and business, and with rapes, beatings, and robberies of African Americans. The Memphis Massacre was one of many race riots that occurred in the Reconstruction South, precipitated in part by the radical developments intended to promote equal citizenship following the Civil War and the resistance of white southerners and change in the social order. Yet, the local response wholly failed to provide any criminal or civil remedies to the victims of the massacre. In fact, no local action was ever taken to bring those responsible to justice for the heinous acts committed. The perpetrators of racial violence themselves believed that their actions were enforcing the rule of law—fueled by a perception that the new freedoms and economic liberty of freedmen were contrary to the Constitution of the founders.
In considering the rule of law, this thesis utilizes the Memphis Massacre as a case study to examine how individuals interpret, understand, and abide by the substantive application of formal law and procedure. The thesis places the Massacre in context with other race riots—both in the same period and decades after. What was the substantive rule of law? Was it the notions of racial inferiority or white racial supremacy perpetuated by white citizens? Or was it the ideals of equality that informed the passage of the Fourteenth Amendment? Turning to the passage of the Fourteenth Amendment, the thesis evaluates how positive developments in constitutional protections cannot prevent racial terror where individuals do not adhere to the underlying ideals of fundamental equality among persons. Considering the at-times success and at-time failures of the Fourteenth Amendment to protect equal rights among citizens, the formal and procedural law cannot be self-executing, but requires the individual—and the state—to guarantee the equality of citizenship.
Bernice Bouie Donald, When the Rule of Law Breaks Down: Implications of the 1866 Memphis Massacre for the Passage of the Fourteenth Amendment, 98 Boston University Law Review 1607-1676 (2018) Available at: http://www.bu.edu/bulawreview/files/2019/01/DONALD.pdf
Library of Congress Subject Headings
Rule of law, Equality before the law, Race riots