The Congress of Vienna, Jean Godefroy

Private Enforcement of Constitutional Guarantees in the Ku Klux Act of 1871

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Paul J. Gardner

2 (2016)

Pages 81-96


When violations of constitutional guarantees are difficult to detect and enforce, Congress may be attracted to solutions which allow aggrieved individuals to bring their own actions to enforce the law, bypassing the need for federal enforcement efforts. While aggrieved individuals may be well-positioned to identify the constitutional harms perpetrated against them, it is much less clear that they have the resources and incentives necessary to advocate on their own behalf. The Ku Klux Act of 1871 demonstrates one such case. While members of Congress thought granting a private right of action would open the floodgates for protection of the new constitutional rights created by the Fourteenth Amendment, in fact, the vast majority of enforcement efforts were necessarily taken on by federal officials. It was not until much later that enterprising public interest lawyers revived the private enforcement regime, but in service to goals quite distant from the intentions of the framers of the Ku Klux Act. This development shows the weakness of private enforcement regimes in the absence of other support structures for litigation.