The Second End of Reconstruction

For broadcast on WAMC Northeast Report, May 5, 2009:

There are two cases in front of the U.S. Supreme Court that will probably change American civil rights law radically. Four members of the Court have never been friends of civil rights law and have just been waiting for a chance to kill it. A fifth professes concern but has rarely supported it. It’s hard to tell how much of a difference whatever the Court decides will make at this point. But it is not a group of people I trust for a realistic assessment of our anti-discrimination laws.

Some commentators have been arguing that we should abandon prophylactic tests to identify and prevent discrimination and just look for evidence of intentional discrimination. The problem, however, has been that it is easy to whitewash real discrimination by saying “he didn’t mean it” – a formula we all learned as kids. And the Supreme Court has been very consistent in saying no, they didn’t mean it, since it announced in the late 70s that the test for unconstitutional governmental discrimination would be intent, not the obvious patterns. Work force all white, but they didn’t mean it. Election rules favor whites, but they didn’t mean it. One searches the records in vain for a finding of intentional discrimination for about twenty years from the mid-80s when Rehnquist became Chief to just the past six years. The few recent exceptions were blatant and even so were angry split decisions.

So this Court gives me no confidence in a decent respect for equal protection of the law. The majority will mouth claims about colorblind equality but does not see discrimination when it bumps right into it and has gutted every effort to stop and prevent it. Four members of the Court have made it quite clear that while they protest about equality, they would happily go back to the days when white men could and did kick everyone around, blacks, Asians, Japanese, women, homosexuals and Native Americans – they’re still doing that. That’s not the America I believe in. And this is not a Court that believes in the most basic principles of decency.

After the Civil War, the era of Reconstruction lasted but a single decade before the troops were withdrawn. In that decade, Congress passed three constitutional amendments and a series of statutes. But a decade after the Civil War the Court was already finding some of those statutes unconstitutional, saying that Congress did not have the right to insist that everyone have access to places of public accommodation, restaurants, theatres and the like. White America wanted to turn aside after the horrific bloodletting of the Civil War, even though that meant that the South largely won the peace. And when white vigilantes massacred a group of blacks whose crime was trying to vote, the U.S. Supreme Court decided that there was no jurisdiction in the federal courts to try those responsible. Since no southern court or jury was willing to convict, the perpetrators went free. And the Court had authorized the reign of terror that would follow.

It wasn’t instantaneous. The late C. Van Woodward described a considerable degree of interaction in the late 19th century between whites and blacks in the former rebel states. But as the century drew to a close, politicians increasingly found advantage in vicious race baiting, and a white paramilitary drove out the elected, and integrated, government of North Carolina so they could seat an all white unelected replacement. Then the reign of terror began in earnest.

Since 1986 the Rehnquist and now Roberts Court has been sending very strong signals that it will look the other way at charges of racial discrimination, discrimination in federal and state programs, discrimination in courthouses, discrimination in schools. I’d like to hope that it’s too late for the race haters, that we won’t turn back. But in fact enforcement of the requirement of equality in this second era of Reconstruction did not survive the Warren and Burger Courts. And Brown v. Board itself was not enforced until 1966 after the federal government started using funding for construction as a carrot for integration to support enforcement of the Court’s decision. The era of actual enforcement turned out to be very short for all the bellyaching about it.

So maybe things have changed enough that the courts aren’t necessary, and they had better have changed enough because the Supreme Court hasn’t been willing to help for decades. This Court makes me ashamed.

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