Justice Antonin Scalia, during oral arguments at the Supreme Court on Wednesday, said that the Court had to rescue Congress from the trap of being afraid to vote against a “racial entitlement” — the “entitlement” in question being the Voting Rights Act. He went to say that “even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?”
Scalia, in his assertions, expresses a line of reasoning that has been central in the thinking of those who wish to deny the still-present institutional and systemic racism that operates in this country: that the problem is nonexistent and that remedies created to combat injustice are the injustice.
Such attitudes point to a vein of resistance against corrective measures that has been a feature of the dominant culture throughout American history. It has been especially evident when addressing the issues of voting and civil rights.
The roots and vestiges of the secessionist spirit
The tenor and tone of the conservative judges on the Supreme Court; the assault by GOP-led state legislatures and Republican governors on voting rights across the nation, gives the very real feeling that we are still fighting the Civil War. As a matter of fact, a true understanding of history reveals the how and why of what is taking place today.
Although Lincoln did not live to carry out his plan, before his death he made it clear that he favored a lenient Reconstruction policy. In December 1863, Lincoln announced his Proclamation of Amnesty and Reconstruction, also known as the Ten-Percent Plan. Under this plan, the government would pardon all Confederates — except high-ranking Confederate officials and those accused of crimes against prisoners of war — who would swear allegiance to the Union and promise to obey its laws.
As soon as 10 percent of those on the 1860 voting lists took this oath of allegiance, a Confederate state could form a new state government. Lincoln intended his Ten-Percent Plan to make the South’s return as quick and easy as possible.
Lincoln’s moderate Reconstruction plan angered the Radical Republicans in Congress. The Radicals (although a minority in the Republican Party) had been at the forefront in supporting abolition and the war, and they now proposed laws to ensure Black rights (such as full citizenship and the right to vote).
The Radicals wanted to destroy the political power of former slaveholders. In response to Lincoln’s Ten-Percent Plan, the Radicals passed the Wade-Davis Bill, which proposed that Congress and not the president be responsible for Reconstruction. The bill also declared that for a state government to be formed, a majority (not just 10 percent) of those eligible to vote in 1860 would have to take a solemn oath to support the Constitution.
Lincoln used a pocket veto to kill the bill after Congress adjourned. The Radicals responded (rather heatedly) calling Lincoln’s pocket veto a travesty of justice and asserting that Congress had supreme authority.
John Wilkes Booth’s assassination of Lincoln in April 1865 left Lincoln’s successor, the former Democrat Andrew Johnson, to deal with the reconstruction controversy. Prior to his assuming the Presidency, Johnson had often expressed his intent to deal harshly with Confederate leaders.
Most White Southerners therefore considered Johnson unsympathetic to their region, while Radicals believed that his views were in line with theirs. Both parties would have to greatly modify their perceptions of President Johnson.
In May 1865, with Congress in recess, Johnson announced his own plan to reconstruct the seven remaining Confederate states. This plan was called Presidential Reconstruction. He declared that each of these states — Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, and Texas — could be readmitted to the Union if it would meet several conditions. Each state would have to declare its secession illegal, swear allegiance to the Union and ratify the Thirteenth Amendment, which abolished slavery.
The Radicals were especially upset that Johnson’s plan, like Lincoln’s, failed to address the needs of former slaves in three areas: land, voting rights and protection under the law. Contrarily, Johnson’s policies relieved most White Southerners. Johnson’s support of states’ rights instead of a strong central government reassured Southern states that they could do as they wished about Black civil liberties and voting rights.
In addition, even though Johnson had promised to punish traitors, he pardoned more than 13,000 former Confederates because he believed that “white men alone must manage the South” and thought that former slaves should not gain the right to vote.
The remaining Ex-Confederate States quickly agreed to Johnson’s terms. Within a few months, these states — except Texas — held conventions to draw up new state constitutions, set up new state governments and elect representatives to Congress.
Some Southern states, however, did not fully comply with the conditions for returning to the Union. For example, Mississippi did not ratify the Thirteenth Amendment.
Despite such examples of noncompliance, in December 1865, the newly-elected Southern legislators arrived in Washington to take their seats. Fifty-eight of them had previously sat in the Congress of the Confederacy, six had served in the Confederate cabinet and four had fought against the United States as a Confederate general. Johnson pardoned them all — a gesture that incensed the Radicals. So liberal was Johnson in granting pardons that the Radical Republicans accused him of giving the Northern victory away.
And here we are, once again, watching the victories and sacrifices of so many — their labor; their blood and their lives — being given away one unjust state law at a time and possibly by the highest court in the land.
Current conservative Supremes: a blast from the past
Roberts, Scalia and, to a lesser degree, Kennedy all made remarks that seem to point back to an earlier era in the history of our nation and the Supreme Court. The conservative members of the Supreme Court are either ignorant of historical factors and current circumstances that made and make the Voting Rights Act necessary or intentionally callous to those realities.
Although Congress had passed important laws to protect the political and civil rights of Blacks, the Supreme Court began to eat away some of those protections. During the 1870s, the Supreme Court issued a series of decisions that undercut the strength of both the Fourteenth and Fifteenth Amendments.
In the Slaughterhouse cases of 1873, the Court decided that the Fourteenth Amendment protected only the rights people had by virtue of their citizenship in the United States, such as the right to federal protection when traveling on the high seas and abroad. The Court contended that most of American’s basic civil rights were obtained through their citizenship in a state and that the amendment did not protect those rights.
In 1883, The United States Supreme Court ruled that the Civil Rights Act of 1875, forbidding discrimination in hotels, trains and other public spaces, was unconstitutional and not authorized by the 13th or 14th Amendments of the Constitution. The ruling read in part:
“The 14th Amendment is prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it is not direct legislation on the matters respecting which the States are prohibited from making or enforcing certain laws, or doing certain acts, but it is corrective legislation, such as may be necessary or proper for counteracting and redressing the effect of such laws or acts.”
“The 13th Amendment relates to slavery and involuntary servitude (which it abolishes); … yet such legislative power extends only to the subject of slavery and its incidents; and the denial of equal accommodations in inns, public conveyances and places of public amusement (which is forbidden by the sections in question), imposes no badge of slavery or involuntary servitude upon the party, but at most, infringes rights which are protected from State aggression by the 14th Amendment.”
One of the justices on the court, John Harlan, gave a now-famous dissent, writing, “Whereas it is essential to just government we recognize the equality of all men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color, or persuasion, religious or political; and it being the appropriate object of legislation to enact great fundamental principles into law; I am of opinion that such discrimination is a badge of servitude, the imposition of which congress may prevent under its power, through appropriate legislation, to enforce the thirteenth Amendment; and consequently, without reference to its enlarged power under the fourteenth Amendment, the act of March 1, 1875, is not, in my judgment, repugnant to the constitution.”
Blacks would have to wait until 1964 before Congress would again pass a civil rights law, this time constitutionally acceptable, which would forbid discrimination in public accommodations, employment and unions.
Another blow to Black civil liberties was delivered by the Supreme Court in U.S. v. Cruikshank in 1876. The Court ruled that the Fourteenth Amendment did not give the federal government the right to punish individual Whites who discriminated against Blacks.
The same year, in U.S. v. Reese, the Court ruled in favor of officials who had barred Blacks from voting, stating that the Fifteenth Amendment did not “confer the right of suffrage on anyone” but merely listed grounds on which states could not deny suffrage.
By the late 1870s, the Supreme Court’s restrictive rulings had narrowed the scope of these amendments that it effectively rendered the federal government powerless to protect the rights of Blacks.
And isn’t that what is at the heart of the various voting laws that have been passed? Isn’t it to diminish the federal government’s ability to protect those populations targeted by said laws? And if the reading of the tea leaves by the vast majority of legal analysts is correct, then these states would have the extra cover of a Supreme Court decision to further that agenda.
Conclusion
In times past these various laws, decisions and policies were aimed, by and large, at Blacks in America, but they are, now, far from the only group under attack. The poor; the immigrant of color; the young; the religious minority and anyone else that isn’t a consistent or solid conservative voter appears to be at risk.
When Rand Paul of Kentucky followed up his victory in the Republican U.S. Senate primary by saying that he had some reservations about the philosophical underpinnings of the Civil Rights Act, there wasn’t a great pushback by the GOP regarding his statements. The party who has patented the phrase “judicial activism” seems to be just fine when a certain conservative brand of that activism furthers their agenda.
The 13th, 14th and 15th amendments never passed; the Grays won the Battle of Nashville; Lee’s surrender at a courthouse in Appomattox was only a dream and we, in the 21st century, are in the grips of a war that never ended. Welcome to the right-wing version of the Twilight Zone.