Constitutionalizing Anarchy: Liberalism, Lynching, and the Law

Daniel Kato

Abstract


Overall review of Supreme Court cases regarding racial violence suggests that while the Court did rule in favor of acquitting lynchers of federal prosecution, it did not completely strip all authority for federal rights enforcement. This essay reassesses the Supreme Court’s handling of racial violence and formulates a theory of law that can account for how lynchings could exist as a tacitly accepted practice without being explicitly sanctioned by the law. Rather than cracking down on lynchers and/or the states that failed to deal with lynchers, the Supreme Court decided to create “zones” wherein questionable activities like lynchings could occur unhampered. Lynchings for the most part were situated within a constructed zone of permissiveness that was contingent not upon the sanctioning of political authorities per se, but rather upon political authorities choosing to maintain an active policy of non-interference. Drawing from Ernst Fraenkel’s model of the dual state and Gerald Neuman’s concept of anomalous zones, constitutional anarchy illuminates how the U.S. carved out legally bounded regions of lawlessness. Implications of existentially demarcated spaces can be seen in a variety of arenas and highlight the commensurability of illiberalism and liberalism via the distinction between content and scope of law.

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