National Policing, Lynching, and Constitutional Change

Abstract

IT COMES AS NO SURPRISE TO LEARN THAT THROUGH THE 1920S AND 1930s, national government insisted it had no jurisdiction to investigate lynching and instead waged a campaign against black militancy. greater surprise to historians comes from period between 1940 and 1952, when Department of Justice (DOJ) abruptly reversed itself and sent agents of Federal Bureau of Investigation (FBI) into South to investigate reported lynchings. (1) For good reason, history has not been kind to FBI. While some Americans had cast a wary eye at FBI since its inception 1908, most serious blow to FBI's image came 1960s when civil rights workers complained bitterly agents would not protect activists from racist vigilantes but preferred to investigate civil rights advocates' communist connections instead. Congressional investigation subsequently confirmed FBI misconduct and did so at a time when state generally became unloved, to use Martin J. Wiener's term. Many observers concluded FBI, suffused with a political conservatism controlled its performance, had always been disinclined to investigate lynchings. Such concerns led one writer to roughly dismiss FBI as that crook-, commie-, and coon-fighting bureaucracy and to say when Franklin D. Roosevelt expanded FBI's jurisdiction to include civil rights violations, change came in theory if rarely practice. No doubt federal government compiled a shameful record during 1960s, but scholars have too often allowed formulations derived from decade and later to color their understanding of FBI's entire history. (2) It is not purpose of this article merely to argue 1940s national government fought lynching more than theoretically and investigated reported incidents invariably rather than rarely. Instead, this article looks at one feature rise of administrative state, an incident at beginning of dramatic enlargement of national government's power to police crime. In particular, this article examines distinct theme proposed by Robert Post: the growth of belief nation, and not states, was a natural unit of democratic self-determination. Prohibition represented a false start at making nation into unit, a failed attempt by U.S. government to articulate a supposed agreement by most Americans, across state lines and regional divisions, liquor had to be banned. Seven years after effort collapsed, U.S. government tried again, this time promoting opposition to mob violence based on constitutional rights came to be more real than evangelical moralism supposedly underlay Prohibition and thereby contributed to a more enduring nationalization of crime control. To explain how this happened requires looking at why Department of Justice first found it constitutionally impossible to investigate lynching, how department then discovered its constitutional authority to combat lynching, and how promoting national rights expanded administrative state. (3) Americans' ideas about law enforcement have stemmed from three sources evolved as nation broadened its conception of popular sovereignty. In nineteenth century authority to control crime lay 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 concept his novel Virginian, a dialogue between characters named Molly Wood and Judge Henry. Wood begins by defining lynching as when [o]rdinary citizens take law their own hands. judge responds, Out of whose hands do they take law? Wood answers, The court's. In response to further questioning, she says Constitution made courts and then concedes people made Constitution. …