After more than a century of failure, Congress now stands closer than ever to making lynching a federal crime. As the pending legislation acknowledges, at least 4,742 people were lynched in the United States between 1882 and 1968, but Congress continually declined to pass any of the nearly 200 bills introduced during those decades.
Although Black Americans had faced lethal racial terror before, during, and immediately following emancipation, the rate of lynching rose significantly in the 1890s as Redemption and Jim Crow segregation took hold. States had the authority to prosecute violent crimes, but many had made clear that they had no will to prevent or punish lynch mobs. Activists worked to expose the savagery of lynching as an apparatus of racial violence and to revive the public and legislative concern for Black lives that seemingly died during the retreat from Reconstruction. Proponents of anti-lynching legislation faced the challenge of convincing Congress that it had the authority under the Fourteenth Amendment’s Enforcement Clause to prosecute individuals, not only state actors, in particularly egregious circumstances.
This Note centers on one particularly promising proposal: the Dyer Anti-Lynching Bill. Introduced in 1917, the ambitious Dyer Bill was the first to clear the House, and it soon incited controversy in the Senate and heated debate in the public press. Many Americans—Black and white, Northern and Southern, Democrat and Republican—had something to say about the Dyer Bill.
Scholars, however, have since said relatively little. Few treatments of the anti-lynching movement capture the enduring constitutional significance of this legislative campaign. Likewise, legal commentary on the Enforcement Clause of the Fourteenth Amendment too often omits this period, skipping from the Reconstruction era to the civil rights movement of the 1950s and 1960s.
This Note offers a novel reading of the Dyer Bill’s development and demise, challenging the standard narrative about how members of Congress and their constituents regarded the Fourteenth Amendment in the Jim Crow era and about Black citizens’ fidelity to the Republican Party. Upending the assumption that Americans in the first half of the twentieth century considered the Fourteenth Amendment a dead letter for achieving racial justice, this Note reveals a country actively concerned with the amendment’s promise and possibilities. Long before the 1964 Civil Rights Act and even the New Deal, the Dyer Bill debates prompted politicians and the public to consider the scope of state action and of Congress’s unique prerogatives under the Fourteenth Amendment’s Enforcement Clause. The Dyer Bill’s history holds lasting lessons for assessing Congress’s obligations and political parties’ incentives to address ongoing issues of racial injustice.
* J.D. Candidate, Stanford Law School; Ph.D. Student, Stanford University Department of History. I am grateful for the suggestions and support of numerous Stanford faculty, including James Campbell, Allyson Hobbs, Amalia Kessler, Robert Gordon, Jane Schacter, and, especially, Norman W. Spaulding. Thank you also to Joshua A. Mensah and the editors of the Stanford Law Review for dedicating their time and energy to this Note.