FINALLY!

We, the co-authors of Fault Lines in the Constitution, are ecstatic that the opening story of our first chapter is now obsolete. Why do we want that story to be out of date just three years after it was last published? Because it’s about a lynching, the unjust hanging of a Black man named Richard Puckett.

Unfortunately, the rest of the chapter, which is about the problems with our bicameral legislature, is still timely. But lynching is finally a federal crime.

Many of our blog posts raise questions for you to talk and think about. For instance, we’ve asked:

• “Your Turn! How Would You Write a New Constitution?”
• “States vs. the Federal Government: Is Supremacy a New Fault Line?”
• “To Compromise or Not to Compromise? That’s a Real Question”

With this post, however, we’re laying our opinion on the table: lynching is always evil, and we are vastly relieved that the Emmett Till Anti-Lynching Act finally passed both houses of Congress and was signed into law by President Joe Biden on March 29, 2022.

At the signing ceremony, Biden was flanked by, among others, members of the families of Ida B. Wells, a Black journalist who in 1909 called lynching “our national crime”—except that it actually wasn’t at the time—and of Emmett Till, the Black teenager who was brutalized and murdered in Mississippi in 1955.

Till and Puckett, of course, were far from the only people to be lynched. Between 1877 and 1950, 4,384 Blacks were murdered by hanging. The report Lynching in America by the Equal Justice Initiative documents more than 6,500 acts of racial terror between 1865 and 1950. And the practice of killing innocent Black people has continued to today. As the president said, “Their crimes? Trying to vote, trying to go to school, to try and own a business or preach the gospel.” He might have added, “Sometimes, even trying to drive a car.”

Since the first antilynching bill was introduced in Congress in 1918, our federal legislature failed to pass a law for 122 years. The first president to support such a bill was the Republican Warren G. Harding, in 1922. But to no avail. Although the House on several occasions passed bills, they always died in the Senate because of the influence of racist Southern Democrats (who opposed all civil rights bills). President Franklin D. Roosevelt, because of his dependence on these Democrats to support New Deal legislation, remained silent about lynchings. In 2005, the Senate formally apologized for its failures—but again failed to act. Even the successful bill, which was sponsored by Democratic Representative Bobby Rush of Illinois, Democratic Senator Cory Booker of New Jersey, and Republican Senator Tim Scott of South Carolina, did not pass unanimously. Republican Representatives Andrew Clyde of Georgia, Thomas Massie of Kentucky, and Chip Roy of Texas voted against the measure.

What took so long to pass a law that should have been unobjectionable and that, according to opinion polls, a majority of Americans—including both Democrats and Republicans—supported? Racism certainly appears to be the best explanation, whether “direct,” as with actual supporters of lynchings as a form of vigilante justice or “indirect,” as with Roosevelt, who certainly did not support lynchings, to accommodate an important part of his political coalition. But how did Congress manage to kill legislation so many times? The answer rests in our bicameral system.

For a bill to become law, it must be approved in identical form by both the House of Representatives and the Senate. There are many ways for either house to block a bill supported by the other one. This includes the use of filibusters in the Senate, adopting rules to slow down or thwart passage, or simply failing to consider it. In fact, gridlock characterizes our legislative practice.

The Framers intentionally established this system so that our young country didn’t go overboard in passing laws that legislators believed would be unwise. This system has worked so well that even essential laws, including those that are widely supported, fail.

Even though we frankly acknowledge our support for antilynching legislation, we end this post with a question: Do you think it should be easier to pass laws or do you prefer that the Senate be able to kill legislation passed by the House?