Tuesday, April 18, 2017

Post-Civil War Supreme Court Good Example Of How Biased Court Can Do Terrible Things: Part 2

These two posts are based on Carol Anderson's Black [White] Rage. [  It's a scary book that every American should read.  I've only gotten through Chapter 1, which has critical stuff to post that is relevant today. How a biased Supreme Court can make decisions that condemn millions of Americans to a second class life.  Should Trump appoint any more judges to the Supreme Court, we could see the same sort of thing happen again now.  It's ugly.

Part 1 set up the context of the post-civil war South, with Andrew Johnson essentially pardoning many if not most of the old Southern leaders and plantation owners and how they essentially set up a new system of slavery by restricting black options for working, owning property, bargaining with their employers, even quitting.  Vagrancy laws meant any black without a job could be arrested.  Then he'd be auctioned off to people needing workers.  And there was no justice available for blacks.

In this, I'll offer up some of the Supreme Court decisions that Anderson discusses that made it possible to deny blacks citizenship, the vote, or really anything at all.

Dred Scott Case  - this was decided in 1856.  From Wikipedia 
"It held that "a negro, whose ancestors were imported into [the U.S.], and sold as slaves",[2][3] whether enslaved or free, could not be an American citizen and therefore had no standing to sue in federal court,[4][5] and that the federal government had no power to regulate slavery in the federal territories acquired after the creation of the United States. Dred Scott, an enslaved man of "the negro African race"[6] who had been taken by his owners to free states and territories, attempted to sue for his freedom. In a 7–2 decision written by Chief Justice Roger B. Taney, the court denied Scott's request. The decision was only the second time that the Supreme Court had ruled an Act of Congress to be unconstitutional.[7]"
Anderson also quotes Taney:
"the infamous Dred Scott decision of 1856, wherein Chief Justice Roger B. Taney had stated explicitly that black people have 'no rights which the white man is bound to respect.'"(p. 18)
While Dred Scott is pretty universally seen as the worst Supreme Court decision ever, it played a key role, even in the post-civil war era, of signaling to Southerners that they could do what they wanted.

But the Emancipation Proclamation was supposed to have freed the slaves, but after the war,
"Johnson did everything in his power to stop constitutional recognition of black people's citizenship and voting rights, including convincing most of the southern states not to ratify the Fourteenth Amerndend and launching a breathtaking and ultimately disastrous political campaign to unseat Radical Republicans in Congress. Nevertheless, despite Johnson's wild fulminations about the 'Africanization' of the South and the tyranny of 'negro domination,' the Fourteenth Amendment was ratified on July 9, 1868, followed by the Fifteenth on February 3, 1870.  Congress had just created a legal structure to begin to atone for America's 'original sin.'
"The U.S. Supreme Court, however, stepped in and succeeded where Johnson failed."(pp. 31-32)
Anderson quotes Frederick Douglas:
"by the time the justices had finished, 'in most of the Southern States, the fourteenth and fifteenth amendments are virtually nullified.  The rights which they were intended to guarantee are denied and held in contempt.  The citizenship granted in the fourteenth amendment is practically a mockery; and the right to vote  . . . is literally stamped out in face of government.'" (p. 32)
How did the Court do this?  Anderson says that while claiming a strict constitutionalist posture (you know, related, if not exactly, what Scalia claimed and Gorsuch allegedly practices) they picked parts of the constitution to use to say that the federal government was trampling on states' rights.
"The court declared that the Reconstruction amendments had illegally placed the full scope of civil rights, which had once been the domain of the states, under federal authority.  That usurpation of power was unconstitutional because it put state governments under Washington's control, disrupting the distribution of power in the federal system, and radically altered the framework of American government." (p. 32)
Anderson points out, that while states' rights were critical when dealing with black civil rights,
"this same court threw tradition and strict reading out the window in the Santa Clara decision.  California had changed its taxation laws to no longer allow corporations to deduct debt from the amount owed to the state or municipalities.  The change applied only to businesses;  people, under the new law, were not affected.  The Southern Pacific Railroad refused to pay its new tax bill, arguing that its rights under the equal protection clause of the Fourteenth Amendment had been violated.  In hearing the case, the court became innovative and creative as it transformed corporations into 'people' who could not have their Fourteenth Amendment rights trampled on by local communities.  So, while businesses were shielded, black Americans were most emphatically not."(pp. 32-33)
Then Anderson goes through a slew of cases that kept  white Southerners immune from charges they violated the constitutional rights of blacks, including the right to life.

1873 - The Slaughterhouse Cases - Anderson says this began a retreat from rights-based society.  New Orleans not only restricted butcher shops to a certain part of town (because of the health hazards of 'blood, entrails, and inevitable disease'), but also required them to have city authorized licenses.  The butchers sued on the grounds their due process rights (cannot take life, liberty, or property without a fair hearing) under the Fourteenth Amendment  had been violated.
"The justices ruled that that was impossible because the amendment covered only federal citizenship rights, such as habeas corpus and the right to peaceful assembly.  Everything else came under the domain of the states.  As a result, 'citizens still had to seek protection for most of their civil rights from state governments and state courts.'" (p. 33) (emphasis added)

1874 - Minor v. Happersett  -
"Chief Justice Morrison R. Waite wrote, 'The Constitution of the United States does not confer the right of suffrage upon anyone,' because the vote 'was not coexistent with citizenship.'" (p. 33)
1875  - United States v. Reese
"In Lexington, Kentucky, a black man, William Garner, had tried to vote.  The registrars, Hiram Reese and Matthew Foushee, refused to hand Garner a ballot because he had not paid a poll tax.  Yet, the black man had an affidavit that the tax collector had refused to accept his payment.  With one wing of local government demanding proof of payment and the other flat out refusing to accept the funds, Garner knew his right to vote had been violated.  The U.S. Supreme Court, in an 8-1 decision, disagreed. . .
In quick succession, the court had undermined citizenship, due process, and the right to vote.  Next was the basic right to life."(pp.33-34)
1876 - United States v. Cruikshank
"Southern Democrats, angered that African Americans had voted in a Republican government in Colfax, Louisiana, threatened to overturn the results of the recent election and install a white supremacist regime.  Blacks were determined to defend their citizenship rights and occupied the symbol of democracy in Colfax, the courthouse, to ensure that the duly elected representatives, most of whom were white, could take office.  That act of democratic courage resulted in an unprecedented bloodbath, even for Reconstruction.  Depending on the casualty estimate, between 105 and 280 African Americans were slaughtered.  Their killers were then charged with violating the Enforcement Act of 1870, which Congress had passed to stop the Klan's terrorism.
Chief Justice Waite . . .  ruled that the Enforcement Act violated states' rights.  Moreover, the only recourse the federal government could take was the Fourteenth Amendment, but, he continued, that did not cover vigilantes or private acts of terror, but rather covered only those acts of violence carried out by the states.  The ruling not only let mass murderers go free;  it effectively removed the ability of the federal government to rein in anti-black domestic terrorism moving forward." (p. 34)

She adds that Supreme Court justice Joseph Bradley was tired of blacks continually trying to use the courts.
"He barked that 'there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.'  Like Andrew Johnson, Bradley saw equal treatment for black people as favoritism." (p. 35)
1877 - Hall v. DeCuir 
"The justices ruled that a state could not prohibit racial segregation." (p. 35)

 1880 - Strauder v. West Virginia, Exparte Virginia, and Virginia v. Rives 
". . .in a series of decisions . . . the U.S. Supreme Court provided clear guidelines to the states on how to systematically and constitutionally exclude African Americans from juries in favor of white jurors."(p. 35)
1896 - Plessy v. Ferguson
"Homer Plessy, a black man who looked white, thought his challenge to a Louisiana law that forced him to ride in the Jim Crow railcar instead of the one designated for whites would put an end to this legal descent into black subjugation.  He was wrong.  The justices, in an 8-1 decision, dismissed the claims that Plessy's Fourteenth Amendment rights to equal protection under the law were violated.  Justice Henry Brown unequivocally stated, "If one race be inferior to the other socially, the constitution of the United States cannot put them on the same plane."
"And when Plessy argued that segregation violated the thirteenth Amendment's ban against 'badges of servitude,' the Supreme Court shot down that argument as well, noting:  "We consider the underlying fallacy of [Plessy's] argument . . . to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority.  If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.'" (p.35)  (emphasis added)

1899  Cumming v. Richmond County Board of Education 
"that even ignored Plessy's separate but equal doctrine by declaring that financial exigency made it perfectly acceptable to shut down black schools while continuing to operate educational facilities for white children." (p. 36)
1898 Williams v. Mississippi 
"the justices approve the use of the poll tax, which requires citizens to pay a fee - under a set of very arcane, complicated rules - to vote.  Although the discriminatory intent of the requirement was well known prior to the justices' ruling, the highest court in the land sanctioned this formidable barrier to the ballot box.  In fact, Justice Joseph McKenna quoted extensively from the Mississippi Supreme Court's candid admission that the state convention, 'restrained by the federal Constitution from discriminating against the negor race,' opted instead to find a method that 'discriminates against its [African Americans'] characteristics' - namely poverty, illiteracy, and more poverty." (p. 36)
 Anderson notes the impact of this decision.
"As late as 1942, for instance, only 3 percent of the voting-age population cast a ballot in seven poll tax states." (p. 36)

1903 Giles v. Harris
"Justice Oliver Wendell Holmes wrote that 'the federal courts had no power, either constitutional or practical, to remedy a statewide wrong, even if perpetrated by the state or its agents." (p. 37)
Did you catch that?  Oliver Wendell Holmes, one of the most celebrated Supreme Court justices ever.

 Two things seem most important here to me:

  1. Slavery didn't end after the civl war.  In fact for many blacks things were worse.  Slave owners had no incentive to destroy their 'property.'  But after slaves were freed, Southerners could kill at will pretty much.  And these conditions continued until the 1960s.  So African Americans haven't come close to recovering from the personal traumas and the financial theft of their labor.  Rather than blaming blacks for their own poverty, white Americans need to acknowledge the long history of oppression, cruelty, and murders of African Americans, some aspects of which continue to this day.  
  2. A court blinded by its own prejudices and ideology can do untold harm to Americans, including overturning the laws of Congress.  A scary thought with Trump and Pence picking candidates for the supreme court.  
Another book club member asked me if I've read White Rage yet.  I told him only Chapter 1, but it was really grim.  He said, it gets much worse.

Part 3 of these posts moves into more modern times.


  1. This is so depressing, I can't stand it. You realize your first sentence misquotes the title?

    1. You're right, it's taking me a long time to read because it's so depressing. But we need to start acknowledging what really happened, and make sure we don't get that kind of court again. (Well, in some ways we already have one.) And yes, I keep mixing up the black and white. Thanks for reminding me to be more careful.

  2. Steve, I’ve come to see that the American project mythologized in that its very constitution is what permitted these travesties in law. I’ve come to ask how it can be a model document when it led to the interpretations you cite – and that its Supreme Court only a few days ago gained in an avowed ‘originalist’?

    I speak to Article 10 of the first ten amendments: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people."

    The period of the Articles of Confederation in the US led many politicians to strengthen the hand of unitary government -- what is called federal government. The critical flaw with our re-born republic was that its political philosophies divided on this critical notion of centralization (and still do). Further, the vote to ratify the new constitution was not a plebiscite as constituent states took up ratification, those houses themselves undemocratic in that they disenfranchised women, the unlanded and most importantly for the issues of your book and our justice, the enslaved and first peoples of North America.

    I am not going to attempt footnoting and attributing points here but rather point to this article goo.gl/iznAhz written by Prof. Martha Field of Harvard Law School on the differences between two federal models: the USA and Canada.

    I want to say here that what has become known as 'original intent' is rooted in Article 10 and for many historians is what helped frame the ‘righteous cause’ of the US (Civil) War (between the States) – we don’t agreed on what to call it. It is this very worrying thing for those who profess special knowledge on ‘original intent’ of the framers: Which framers?

    To the acolytes of Jefferson and his agrarian-idyll plantation South, the war between the states worked to undo legal construction of the Southern position. The case law you cite from Carol Anderson’s book is that work to re-assert non-federalist arguments inimical to Black or Indian personhood or citizenship – which question might ask: Were these peoples ever meant to be part of the USA?

    I’ve found in my reading that sad and ready answer is no.

    Just as Christian texts were (and are) used to root the ‘natural law’ argument necessitating reproduction and legal sanction against (non-reproducing) sexuality i.e. ‘gay’ folk, I can see how these texts were taken to advance European self-interests in the New World.

    Words matter. Ideas matter. The question has been: What was the ‘original’ intent? More fitting work is to ask who we want us to be.


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