My Goal Is to Revive the 1871 Ku Klux Klan Act. The Iowa Supreme Court Has Taken a Step Forward

The name Ku Klux Klan comes from the Greek word “Kuklos,” which means circle. The KKK was formed as a white racial brotherhood in 1865, months after the Civil War ended. For the ensuing years, they terrorized freed slaves. Congress passed a law in 1871 to crack down on this racial terrorism.

The law said: “If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving any person or class of persons of the equal protection of the laws” they shall be liable.

The criminal part of the law was ruled unconstitutional in 1875. The civil part of the law met the same fate until 1972. It was revived but only in very narrow circumstances.

The problem that has bedeviled the law is its narrow text! Consider the white terror groups at Charlottesville. They weren’t in disguise, though they were on a highway and sought to deprive blacks and supporters of equal rights. A pending lawsuit argues that’s enough to invoke the law. 
Does the fact that the men in the photo (above) are not in disguise mean that the Ku Klux Klan doesn't apply?

My article, “Targeting White Supremacy in the Workplace,” offers a broader theory to apply the law. 
I argue that courts have overemphasized the literal text. They should examine what lawmakers intended in 1871. To make the point, I lift-up the voices of congressmen and witnesses, all of whom described specific acts of violence and mayhem directed at blacks and their white supporters. Focus on the intent. The words simply illustrate a means, at the time, to spread terror.

In a very recent decision by the Iowa Supreme Court (Baldwin v. City of Estherville, 2018), Justice Appel said the following.

"Missing the point: incorrect statutory interpretation of the Ku Klux Klan Act. In any event, there is reason to question the prevailing federal statutory interpretation. Congress enacted 42 U.S.C. § 1983 in 1871 to fight the Ku Klux Klan. See generally Michael H. LeRoy, Targeting White Supremacy in the Workplace, 29 Stan. L. & Pol’y Rev. 107, 120–23 (2018) [hereinafter LeRoy] (describing the history surrounding the enactment of the Act)….

Further, the Reconstruction Era Congress was determined, at least in 1871, to address the horrific intimidation, terror, and violence visited on African-Americans by white supremacists who gained control of state and local governments in the states of the former confederacy. See LeRoy, 29 Stan. L. & Pol’y Rev. at 121–23. We should never forget that while the Civil War ended in 1865 for most Iowans, a bitter and brutal battle continued against African-Americans in the former slave states."