The Deadly Supreme Court

  The promise of equal citizenship had been “imperiled by judicial interpretation.”

This statement appears on page 126 of Eric Foner’s new book, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, (Norton: 2019). As I read this statement, I noted it as the real theme of the entire book, because while the title suggests that the 13^th , 14^th and 15^th Amendments in their pathbreaking establishment of the new and equal rights of 4 million former slaves, actually remade the U. S. Constitution (which they did—had they been fully implemented), the real story here is the extent to which the Supreme Court, in its rulings from about 1890 to the our own time, largely unmade that remaking. This is established in detail in the second half of Foner’s revelatory book. Decisions about murder and mayhem, about voting, about black employment, about the rights given to freed blacks by the three amendments, about whether not just political rights but ‘social rights’ could be guaranteed, about ‘separate but equal’ accommodations—all were subject to Supreme Court decisions. And in virtually every case, the Court allowed the revived power structure in the South to skirt the amendments and violate black citizens’ rights with impunity. In short, the systemic racism that even today is being contested in the streets of this country was given major impetus around the turn of the century by the highest court—the supposed ultimate arbiter of justice—in this land. It is a story that can’t help but infuriate any American with a conscience; and it certainly infuriated me.  

            But first, what were those three transformative Amendments? The first of them, the 13^th, outlawed both slavery and involuntary servitude in the United States. This reversed the covert approval of slavery that the Founders—many of them slaveholders themselves—allowed to pollute their new “free” Republic. No longer, after this amendment, could slaves be held in bondage and still be counted as three-fourths of a person so the southern states could have more representation in the Congress and the Electoral College. Which was, indeed, a major change, brought about at the cost of hundreds of thousands of lives in the Civil War. So far so good. But there was a clause in the 13^th Amendment that led to more bondage: no slavery or servitude allowed, it said, “except as a punishment for a crime.” Predictably, the South instituted the so-called Black Codes to take full advantage of this loophole. In addition to limiting the movement of freed blacks, the Codes barred them “from following certain occupations, owning firearms, serving on juries, testifying in cases involving whites, or voting” (p. 48). But more than that, the Codes required all black men to sign a labor contract to work for whites, or be prosecuted for “vagrancy.” If convicted (which they invariably were), they were fined, and if they could not afford the fine (which most couldn’t), they “were forced to labor for a white employer” (48). Thus was involuntary servitude reintroduced for the “freed” former slaves. The Republican-controlled Congress tried to counter the Codes with the Civil Rights Act of 1866, and though President Johnson quickly vetoed it, the Congress overrode his veto (it was the first override). The reprieve for blacks, if any, was short-lived, however. 

            The second of the transformative amendments, the 14^th, established “birthright citizenship.” The 14^th Amendment begins, 

All persons born or naturalized in the United States…are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (xv).

As Foner notes, this Amendment “elevates equality to a constitutional right of all Americans.” Today, one might think this would be a ho-hum, but 4 million black men were, for the first time, now constitutionally equal to white men. This was a big deal. Equality was not complete, of course, as female suffragists were quick to point out: the use of the term “male inhabitants” left half of the adult population still unequal. But the Radical Republicans—even those sympathetic to female suffrage—decided that including female equality would fatally imperil passage, and so would have to wait for another time. Still, equality for black men was a major achievement. And when the 15^th Amendment was also passed two years later, jubilation by blacks and Radical Republicans was nearly universal. For the 15^th Amendment had formally established the right of former slaves, now citizens, to vote:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude (xvii).

Frederick Douglass rejoiced: “Never was a revolution more complete.” The abolitionist William Lloyd Garrison added that “Nothing in all of history” equaled “this wonderful, quiet transformation of four million human beings from the auction block to the ballot box” (112).  

            All this affirms the importance that Foner ascribes to these amendments. With the ratification of the 15^thAmendment by three-fourths of the states on March 30, 1870, the Constitution had truly been drastically changed. But despite its defeat in war, and the enforcement of the new rule by the military, the South was not by any means finished. Widespread violence quickly erupted to oppose the new amendments, perpetrated mainly by the Ku Klux Klan, which had been formed in Tennessee shortly after the War’s conclusion. Re-energized by the amendments, the Klan initiated a brutal campaign of assault, murder and arson, not only against newly freed black men who disputed with their white employers, but against Republican officials they called “scalawags,” and including sexual assaults against black women. Three Enforcement Acts were passed by Congress to combat the violence, and in 1871 and 1872, President Grant sent the U.S. Army to emphasize that the federal government’s power could and would enforce the laws. Grant’s military intervention effectively crushed the Klan, but again, though some 2500 criminal cases resulted, “fewer than half resulted in convictions” (121). Military or no, however, the real resistance to the equality revolution came, as noted above, from the United States Supreme Court. As the critique by the Brotherhood of Liberty made clear in its 1899 publication, Justice and Jurisprudence, “the promise of equal citizenship had been ‘imperiled by judicial interpretation’” (126). 

            Eric Foner explains this at the outset: “in almost every instance, the Court chose to restrict the scope of the second founding” (128). That is, it reduced all those ‘privileges and immunities’ that the new amendments had been so zealous to confer on the new citizens. More, it “drew a sharp line between civil and ‘social’ rights,’” meaning that discrimination by private businesses could not, in its interpretations, be interfered with. Finally, it “eventually concluded that segregation legally enforced by a state did not violate the equal rights of black Americans” (ibid). This is an astonishing conclusion, but Foner cites numerous cases to show that the Supreme Court justices actually did argue and did rule that segregation was legal (and, for many justices, inevitable and preferred.) Perhaps most alarming of all, the Supreme Court made a mockery of the 14^th Amendment—the one that importantly had “elevated equality to a Constitutional right” for those who had formerly been enslaved—and instead turned it into a “vehicle for protecting corporate rights.” That is, the Court struck down regulations meant to protect workers (many of them former slaves) on the grounds that such regulation “violated ‘freedom of contract’” which protected corporations’ rights under the Due Process clause. Talk about a perversion of justice! And what the Court did with respect to the voting rights newly awarded to the former slaves was even worse: it consistently ruled that “So long as disenfranchisement laws did not explicitly mention race, the justices refused to intervene even as the vast majority of the South’s African-American men lost the right to vote” (129). 

            Consider just a few cases, such as Bylew v. United States of 1872. The case stemmed from the grim ax murder of a family of four blacks (the Fosters) by two white men (Bylew and Kennard) in Kentucky. The issue was initially decided in federal court (Kentucky still forbid blacks to testify against whites in its courts) and resulted in a murder conviction and a sentence of death for the white perpetrators. But the State of Kentucky appealed to the Supreme Court, and it overturned the decision to convict by a 6-2 vote. The high Court’s decision hinged on the application of the word “affected” in the Civil Rights Act of 1866. The Act allowed the removal to federal court (which Bylew had been) only of cases “affecting” persons denied equality in state courts. Justice Strong declared in his opinion that only the parties to the case—the two murderers and the government—were here “affected.” This meant that neither black witnesses nor those who were murdered, were “affected” by the law protecting those denied their rights. Only the two murderers were so affected, it ruled, and they were not covered by the law. Ergo, according to the Court’s reasoning, the case should not have been decided in federal court, and the convictions of two white men who murdered four blacks was overturned! The rights of the state here were clearly seen as more important than the rights of either the black victims or the federal government. Likewise, the Civil Rights Act introduced by Charles Sumner in 1870 to confer public rights on the former slaves, was widely condemned by the Court as an excess exercise of federal power. 

            This hobbling of federal power had profound consequences, for in the 1870s, violence against Reconstruction again erupted. This time it was not the Klan, but “rifle clubs” sponsored by Democrats in the South. These bands of men didn’t bother to disguise themselves as the Klan had, but, encouraged by judicial sanction, openly attacked blacks trying to vote. This type of violence helped Democrats regain political control in both Alabama and Mississippi in the 1874 election. And because of the Supreme Court, the federal government was not able to protect black voters from such violence. In United States v. Cruikshank, for example, the case concerned the Colfax Massacre of 1873, which occurred after the 1872 gubernatorial election in Louisiana when a mob of whites murdered scores of black men. Some 98 person were indicted for conspiracy to deprive the murder victims of their constitutional rights (not to mention their lives). Though only three murderers were convicted, it was still a kind of justice. But when the case was appealed to the Supreme court (because two judges could not agree about whether the conspiracy had been racially motivated), Chief Justice Waite argued that most of the victims were “under the protection of the states” not the federal government. Moreover, the 14^th Amendment, he ruled, only applied when states violated basic rights, not when private citizens violated them—and thus the murders remained a matter for state courts to adjudicate. Therefore, those murdered by private citizens could not rely on federal law to protect them. As Foner notes, this only “encouraged further violence” (144), which regularly occurred. Chief Justice Waite also wrote the United States v. Reese decision, again overturning the lower court convictions of several officials who had “conspired to prevent blacks from voting in a local election” (146). Waite actually ruled that the 15^th Amendment “does not confer the right of suffrage on anyone” but only prohibited exclusion from voting for racial reasons, which had not been proven. Likewise, the Enforcement Act for voting was not operative because, rather than prohibiting interference with voting specifically because of race, it prohibited allinterference with voting, and was therefore not applicable. This perverse ruling subsequently encouraged southern states to erect all kinds of barriers to voting, such as poll taxes and literacy tests which, by not mentioning race, effectively prevented most blacks from voting. Similar devices today, such as ID requirements, or closing polls where blacks vote, or gerrymandering, perform the same disenfranchising work.  

            One more set of cases should suffice—the Civil Rights Cases of 1883. These involved complaints by blacks in Kansas and Missouri and San Francisco who were denied accommodations in hotels, in railroad cars, and entry into specific seats in theaters and opera houses. The relevant law was Charles Sumner’s Civil Rights Act of 1875 (Sumner had introduced it in 1870, but died in 1874 before it actually became law.) In an 8-1 ruling, the Supreme Court wrote that most of Sumner’s Act was unconstitutional, “on the grounds that it sought to punish discrimination by private businesses, not the states” (151).  In other words, the Court reinforced its old distinction between political rights and social rights. Political rights could be protected; social or public rights could not. More than that, the Court, in the words of Justice Bradley, actually chided blacks for seeking “to be the special favorite of the laws,” because the kind of “enforced fellowship” they were seeking had the potential of changing “the freedom of blacks” into “slavery of the whites” (152). One’s jaw drops at the arrogance of this remark, except for the fact that the same kind of ahistorical complaints have been used in recent years regarding affirmative action in hiring or in college admissions. True, not every Supreme Court Justice was so dismissive; Justice Harlan dissented in several cases, asserting that discrimination regarding civil rights, whether by state law or by private citizens, was still a “badge of servitude” (153). And Thaddeus Wakeman, writing in Science, maintained the same thing: the purpose of the Amendments, he wrote, was clearly to include the whole panoply of civil rights under federal jurisdiction, but that intention was lost the moment they reached “that grave of liberty, the Supreme Court of the United States” (157). Sadly, these were minority views. 

            Just as sadly, as Foner points out, the William Dunning school of historians at Columbia University, which produced the first scholarly works on Reconstruction, followed the Supreme Court’s subtext, and essentially “condemned black suffrage as a dire mistake” (159). Dunning himself wrote that “acceptance of the reality of racial inequality must be the foundation of any stable social order in the South” (ibid). The Court often cited Dunning and his students in subsequent decisions, as it retreated from Reconstruction as if from a plague. In 1896, as just one example, Plessy v. Ferguson reached the Supreme Court to adjudicate the status of “Equal but separate accommodations” on the railroad in Louisiana. The Court had already upheld the conviction of a railroad company for not abiding by a Mississippi law requiring the segregation of passengers. In Plessy, it ruled that “so long as facilities were equal, the 14^th Amendment’s equal protection clause did not apply” (162). Justice Brown wrote the opinion, and it’s a doozy. “Whiteness,” he wrote, “was a form of property, and the railroad could be sued for devaluing it” (ibid). Homer Plessy, though able to pass for a white man, was not really white, he wrote, and therefore, was not entitled to the “reputation of being a white man.” The mind reels at this validation of the ‘separate but equal’ doctrine by the highest court in the land. 

            There are more instances of this kind of racist blindness, of course, but the situation is clear enough. The final words of Foner provide the capstone, and the relevance of this book and these Supreme Court decisions to the battles in the streets even now going on:

            “…the shadow of the retreat from Reconstruction still hangs over contemporary jurisprudence” (174). 

Indeed it does, and it hangs over the entire nation, over each one of us, as well. 

Lawrence DiStasi

White Americans Will Have to Pay

In the interest of full disclosure, I have to note that I am of Italian descent (on my father’s side), and therefore heir to that wave of immigrants which arrived in the U.S. in the 1880s through the early 20^th Century. As many now protest, they had nothing to do with slavery, massacring Native Americans, or the suppression of people of color—especially since they themselves were considered ‘people of color’ when they arrived. Therefore, many of them find it appalling that they should be asked to suffer the loss of their putative hero, Columbus, or worse, pay for the upraising or favored treatment of blacks that is now being demanded. Many ‘white’ Americans clearly feel the same way. We had nothing to do with slavery, is the cry; why should we have to pay for it in any way—either by losing out to less qualified Blacks in hiring, or lose out to them in college admissions (via affirmative action)? And one can certainly understand the logic in this. 

            Indeed, after watching Heather McGhee’s excellent TED talk, “Racism has a cost for everyone,” one at first wants to subscribe to her idea that getting rid of zero-sum thinking (if you win, I have to lose), and coming to realize that all of us are in this together might just be a solution. Yes, we want to say, if we lift up Blacks and other people of color economically, we will all be uplifted. Conversely, she argues, clinging to the idea that keeping them down is the only way to preserve white privilege and wealth is erroneous; it costs us all to keep a major part of the population hedged off in ghettos where they are underserved and underpaid and harboring resentments sure to explode, one way or the other. In sum, to raise up one of us economically is to raise up all of us, white or black. And we respond, thinking yes, this is a way to enact racial and economic justice, and can be a way for all of us to win. That is, we white folks will not really have to lose, to pay for justice.  

            However, after really thinking about this, I have become convinced that it’s a bit of sleight of hand to persuade white Americans that racial justice and equality can finally be achieved in our time, without much cost. Without significant loss. And, if true, would certainly make the acceptance of such justice a little easier to swallow for most. But I think we are kidding ourselves on several levels if we do. There will be a cost to full social and economic equality, and my contention here is that whites in America should be prepared to give up some of their privilege in exchange for finally, after two-hundred-seventy years of hypocrisy, making America live up to its creed. 

            But why, many of my fellow Italian Americans would ask, should we have to pay? Neither we nor our ancestors perpetrated any of the racial crimes of slavery or Jim Crow or the extermination of Native Americans, so  why should we pay? The answer is simple. You have benefitted from those crimes from the moment you set foot on this soil. You have benefitted because of the simple fact that you are now considered ‘white.’ Yes, even though when you arrived, you were considered racially inferior and virtually ‘black,’ you very quickly made the devil’s bargain to stake your claim to whiteness. You saw that in America, even those initially considered ‘marginal’ could claim that ‘at least I am not black.’ And you embraced that claim, often giving up your initial impulse to befriend African American neighbors and co-workers, in order to do it. To become white. And to become that, to become American, you had to become racist. You had to embrace the idea that the racial line, especially in the neighborhoods you inhabited, were clearly demarcated—separated off from those neighborhoods that were ‘black’—and could not be crossed. All Americans imbibe that knowledge with their mother’s milk. And that becomes racial privilege. White privilege. Knowing that the houses and apartments in those ‘other’ neighborhoods have always suffered from undervaluation and neglect, at the very least. Then, when you returned from serving in WWII, as a ‘white’ veteran you could benefit from the G.I. Bill, which allowed, even encouraged you to get a government-subsidized mortgage on a house in the suburbs. This, in turn, allowed those of you who chose to, to move out of the crowded city and into the whiter suburbs. Whiter, because black returning veterans were excluded from the right to get those G.I.-Bill mortgages (the federal government excluded them, at least partly to get the bill passed by Southern congressmen—see Katznelson, Ira, When affirmative action was white: an untold history of racial inequality in twentieth-century America, W.W. Norton 2006.) And because their neighborhoods were redlined (denial of financial services from banks and insurance companies), with the resulting values of the homes they might buy accordingly reduced. 

            The wealth white families in America were able to accrue from this one privilege amounted to the growing ability of succeeding generations of whites to send their children to college (the G.I. Bill also provided direct subsidies to vets to attend college), and in turn enter the ranks of the higher paid. That’s white privilege, or more specifically “affirmative action,” from just one government-sponsored favor. And there are countless others, both overt and covert. In sum, white Americans, though many protest that they are hardly privileged, are endowed with this one overriding privilege: they are white in a society that has always offered them the gold-plated ticket to every show, from police protection to the psychic protection of knowing that no matter how far they sink, they are still not at the bottom. 

            In exchange for that, white society is now being asked not only to allow African Americans entry into that privileged place, but to pay for the transition that will allow it. And though many are protesting—because they are convinced, zero-sum-game style, that any black gain means their loss, I contend that the just among them, among us, must be willing to pay. We must pay either with our perceived loss of favored status, or in what we will have to pay to compensate the descendants of slaves for what they have had to suffer (the idea that blacks all suffer from post-traumatic-slave syndrome, PTSS, gets to this idea, maintaining that even those who have never been enslaved or suffered from Jim Crow live with these horrible legacies in their psyches and their very genes*; see Dr. Joy De Gruy, Post Traumatic Slave Syndrome, and/or www.joydegruy.com ), and what it will cost to bring many of them up to a decent level of living. And that’s going to cost money. The money will have to come from government (its policies have fostered black suppression, after all), which means eventually from the taxes we all pay. The question is, will white Americans be willing to pay it? Should they?

            I believe that they should, for many of the reasons outlined above. But more than that, we should be willing to pay for the simple reason that no society can endure for long with such glaring injustice and inequality, such a bitter history left intact. Because sooner or later, the rot from that injustice seeps into every part of our society and culture. This is what the massive demonstrations following the death of George Floyd are saying. That Black Lives Matter. And what a failure of culture that slogan implies—that any group of people in the alleged ‘home of the free’ has to explicitly put their lives on the line to insist that their lives actually matter. What kind of society so mistreats a whole group of people that they must publicly resort to that claim? We know the answer, and it is the shame of nations. 

            It is also the shame of nations that so many white Americans want to claim victimization by answering ‘what about us?’ The shame of nations that so many Americans fail to see the justice of that plea. Fail to see that without that justice, American society is a sham. Its claims to be that land of the free, that land of equality, of equal justice for all, are shams, hypocritical pretense. And mostly, it is the shame of nations that so many people refuse to see that finally making all people equal will make this, at last, a nation to be proud of, a nation worth living in. A nation where those who have are willing to share with those who have long been deprived of having. That I am my brother’s keeper, and that the deprivation of one is ultimately the deprivation of all. That human society must be built on the idea of common wealth, the idea that we all must share the bounty of the earth that is given to us by Nature, rather than subscribe to the lifeboat theory operative now, that each individual must seize and fight for his little piece of the planet (in the American case stolen, every inch of it, from the indigenous inhabitants), and kill for it if necessary.

            Can this happen? I am given hope by one fact only—that so many white, young people seem willing to put their lives on the line in demonstrations to demand this change. They are willing, this generation, to sacrifice some of their inherited privilege to bring change about. And we should all be grateful, and willing to open our pockets and our minds to join them. Because that, that willingness to share the common wealth, that willingness to see that sharing wealth is deeply ingrained in the human psyche and is the source of the only true happiness for humans, the pre-eminent social animal—that is the only way out of our American dilemma. We Americans have been sold a pernicious bill of goods—the notion that we must only look out for ourselves because that is our nature. It is a misreading of both human nature and of the Declaration of Independence. That declaration called not for the permanent independence of each human, to be preserved at any cost. It called for the independence of the United Colonies from British rule. But the economists and libertarians of our time insist that it means freedom from every obligation to other humans, and that is not only wrong-headed but the source of endless suffering and discrimination. No, what is truly human—from our primate cousins through every development of homo sapiens—is concern for others. Cooperation with others. Empathy for others. Sharing, as hunter-gatherers knew, the good fortune of one with those others who were not so fortunate in the hunt on any given day; because what one shared one day was returned by others who shared their bounty another day. And more broadly, coming to the aid of one in need, as any child of today still does to another child who cries. As most of us still feel the impulse to do. It is in our genes, in our brain cells (see the voluminous research on the function of ‘mirror neurons’ in promoting empathy in humans). And not only helps others, but helps us in doing so, literally promotes our happiness and well-being. 

            So yes, it can be done. But the question still is, will it be done? Especially by those who are committed, because they have been taught, to the perversion of the independence doctrine? Those who still choose to see through the lens of zero-sum-game thinking? Perhaps. Perhaps not. But in the end, it will not matter for long. The dinosaurs will eventually die out, and a new species, represented by those now demonstrating and those who follow them, will rule the day. And what they are saying, now, is that enough is enough. Four hundred years of cruelty and deprivation are enough. Four hundred years of white privilege and black poverty of opportunity are enough. And, finally, we are willing to share our privilege and pay to compensate for what has been stolen. And those of us who are no longer young, no longer able to march alongside them, but see the rightness of what they are doing, can applaud and cheer them on, both with our voices and with whatever support we can offer. And rejoice that at long last, the America that we have hoped for, the America that is truly a commonwealth, can come to be.

Lawrence DiStasi

*Dr. Rachel Yehuda, professor of psychiatry at Icahn School of Medicine at Mount Sinai, has conducted a depth of research into epigenetics and the intergenerational transmission of trauma. In layman's terms, she is researching how serious incidents of trauma (i.e. slavery, holocaust, etc.) and post-traumatic stress disorder (PTSD) can be passed down through generations in shared family genes. Her research has revealed that when people experience trauma, it changes their genes in a very specific and noticeable way, so when those people have children and their genes are passed down to their children, the children also inherit the genes affected by trauma.