The movement claim that United States v. Cruikshank, 92 U.S. 542 (1875), supports a consent-theory framework under which citizenship is 'voluntarily submitted' and individuals can decline submission is unsupported
The movement proposition
Byron Beers’s Treatise #3 (The Natural Order of Things) cites Chief Justice Morrison Waite’s opinion in United States v. Cruikshank, 92 U.S. 542 (1875), for the following proposition:
“The citizen cannot complain, because he has voluntarily submitted himself to such a form of government.”
The Treatise #3 extraction identifies this as “the most dangerous citation for Beers’s opponents” and develops the inference: if citizenship is voluntary submission, the inverse implication is that non-submission means non-citizenship, which means non-jurisdiction. The framework’s broader claim — that individuals can decline submission and thereby exit the legal regime — finds its strongest single-quote anchor in this Cruikshank passage.
The quote is genuine. The doctrinal direction is not what Beers’s framework needs.
The authority
United States v. Cruikshank, 92 U.S. 542 (1875) is the Supreme Court’s opinion in a federal civil-rights prosecution arising from the Colfax massacre of Easter Sunday 1873. White-supremacist paramilitary forces attacked the Black-defended Republican courthouse in Grant Parish, Louisiana, killing approximately 150 Black Americans. Federal prosecutors charged the perpetrators under the Enforcement Act of 1870, which criminalized conspiracies to deprive citizens of constitutional rights.
The Supreme Court (Waite, C.J., for the Court) overturned the convictions, holding that the Fourteenth Amendment did not authorize Congress to reach private (non-state) racial violence and that most of the indictment counts charged conduct outside federal jurisdiction. The decision effectively ended federal prosecution of Reconstruction-era racial terror in the South and is widely regarded as one of the most destructive opinions in U.S. constitutional history. Modern constitutional historians (Foner, Lemann, Charles Lane’s The Day Freedom Died (2008)) treat Cruikshank as a foundational moment in the legal architecture of Jim Crow.
The “voluntarily submitted himself” language appears in Waite’s discussion of the structure of American dual sovereignty — explaining why a citizen can be subject to both state and federal authority without contradiction. The full reasoning structure: a citizen residing in a state owes allegiance to that state and to the United States; the citizen “cannot complain” of this dual subjection because participating in the federalism the citizen actually lives in is itself the operative consent; the federal compact (the Constitution) is the structure to which the “submission” is made.
What the “voluntary submission” language actually means
The “voluntary submission” Waite describes is structural, not contractual. The distinction matters precisely for the kind of inference Beers’s framework wants to draw.
A contractual consent regime would allow individual withdrawal: if A consents to a contract with B, A can (subject to the contract’s terms) revoke consent, terminate the relationship, or refuse renewal. The contract creates the obligations; absent the contract, the obligations don’t exist; the contract is voluntary in the sense that A had a real choice to make or not make it.
A structural consent regime works differently: A participates in the polity by virtue of being a person physically present within its borders, a citizen of a state, a recipient of state services and protections, a participant in the economy the polity organizes. The “submission” is descriptive of A’s relationship to the structure — not a contract A chose to enter and can choose to leave.
Waite is describing the structural version. The citizen “cannot complain” of dual-sovereignty subjection because the dual-sovereign structure is the polity. Refusing the structure does not produce an alternative legal status; it produces nothing operative. The “voluntary” qualifier captures the founding-era democratic-legitimacy framing (the people consented to this federal structure through ratification) — not an individual opt-out option.
The doctrinal point is straightforward: federal jurisdiction over persons within the United States is compulsory, not contractual. International Shoe Co. v. Washington, 326 U.S. 310 (1945), and its progeny govern modern personal-jurisdiction doctrine. The “minimum contacts” analysis attaches federal jurisdiction to persons whose conduct creates contacts with the United States — not to persons who have individually consented to that jurisdiction. Cruikshank’s “voluntary submission” language does not contradict this; it describes the structural reality from which compulsory jurisdiction attaches.
The ethical complication
Citing Cruikshank as supportive authority creates a separate problem for the framework’s intellectual credibility. The case is not a neutral source of dual-sovereignty doctrine; it is the opinion that enabled Jim Crow-era racial terror by gutting federal prosecution of private racial violence.
This is not a peripheral observation. Movement readers who recognize the case will read the citation as either (a) unaware of what Cruikshank did, or (b) willing to rely on a Reconstruction-era anti-civil-rights precedent for a contemporary consent-theory argument. Neither reading flatters the framework. A serious legal-philosophical argument about consent and political obligation has no shortage of better sources — Locke, Rousseau, Hume, Simmons, the broader social-contract tradition. Cruikshank is a poor source not just because the quote means something different than Beers’s framework needs, but because invoking it as authority requires either ignoring or endorsing what the opinion did.
The existing finding on the knowing-voluntary-intentional consent standard addresses the broader consent-theory framework Beers builds. The legitimate intellectual ancestors of that framework — Lockean social-contract theory, Simmons’s modern political-obligation literature, the libertarian / classical-liberal tradition — supply much better material than Cruikshank. The framework’s framing in Cruikshank is a choice — not a necessity. A version of the framework that cited Locke or Simmons would be stronger doctrinally and ethically. The Cruikshank citation is, in effect, a self-inflicted wound.
Counter-authority
The dual-sovereignty doctrine Cruikshank’s “voluntary submission” passage actually describes is well-developed in subsequent case law. Heath v. Alabama, 474 U.S. 82 (1985), confirms that successive state and federal prosecutions for the same conduct do not violate double jeopardy because the two sovereigns derive their authority from independent sources. Bartkus v. Illinois, 359 U.S. 121 (1959), and Abbate v. United States, 359 U.S. 187 (1959), establish the dual-sovereignty exception to double jeopardy.
The compulsory-jurisdiction doctrine that controls is well-developed. International Shoe (1945) and Burnham v. Superior Court, 495 U.S. 604 (1990), govern personal jurisdiction; the minimum-contacts analysis attaches jurisdiction without requiring individual consent. The rejected-frivolous case law on consent-theory arguments (the Schiefen, Heath, Sloan, Mundt line) forecloses the operative version of the framework Beers builds on the “voluntary submission” passage.
Verdict
Unsupported. Cruikshank’s “voluntarily submitted himself” language does not support the consent-theory framework Beers’s Treatise #3 builds on it. The phrase describes structural participation in dual-sovereignty federalism, not contractual consent subject to individual withdrawal. The case’s holding — gutting federal civil-rights enforcement against private racial violence — is one of the most destructive opinions in U.S. constitutional history and cannot serve as supportive authority for any consent-theory framework without confronting what the opinion actually did.
The broader consent-theory claim is verdicted as foreclosed in the existing knowing-voluntary-intentional consent standard finding. This finding addresses the specific Cruikshank misreading that anchors the framework’s claim to operative-doctrine support.
A reader engaging the legitimate scholarly territory — the philosophical question of what consent legitimates political obligation — will find serious literature in the social-contract tradition (Locke, Rousseau, Hume), in modern political philosophy (A. John Simmons especially), and in libertarian / classical-liberal constitutional theory (Nozick, Huemer, Barnett). That literature is the appropriate home for the underlying question. Cruikshank is not.
Sources cited
- The Natural Order of Things — Byron Beers