Here is a group of excerpts from SCOTUS decisions on the Reconstruction Amendments. There’s a pattern.
Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? The Slaughterhouse Cases (1873).
—–
When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, 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, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens, yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. The Civil Rights Cases (1883)
—–
The object of the [14th] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguish d from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. Plessy v. Ferguson (1893)
—–
In Louisiana v. Callais, to resolve the tension between vote-dilution claims under §2 of the Voting Rights Act of 1965 and our colorblind Constitution, we updated the standards for §2 liability established by Thornburg v. Gingles.) Allen v. Milligan (2026) (citations omitted).
From the very beginning SCOTUS refused to give the Reconstruction Amendments their full scope. The first cases have a tone of disbelief that the people who voted to ratify them could possibly have meant what they say. The explanation for their holdings have nothing to do with precedent or with the actual language. Instead we get the personal opinions of a bunch of old lawyers.
But more importantly, these cases flatly refused to permit the exercise the full range of the explicit power given to Congress by the Reconstruction Amendments. Instead, SCOTUS horned in and upheld the prejudices of the White people who dominated the power structures of the secessionist states.
After Plessy was partially overturned in 1954 the arguments from commonly held prejudice no longer worked. Fortunately for the racists there were new explanations cooked up by revisionist conservatives and intellectually dishonest academics. One was the idea of the dignity of the states, which plays a large role in the decades long drive of John Roberts to eviscerate the Voting Rights Act of 1965.
In Shelby County v. Holder Roberts relies in part on the “dignity” of the states. As explained here in some detail, this strange idea originated in the Dunning School of the history of Reconstruction, part of a massive effort to persuade people of the lie that the Civil War was a noble cause fought by heroic men to uphold States Rights. This neo-Confederate idiocy never dies out, and Roberts wholly buys into it.
He cites the 10th Amendment, as if the Civil War and the Reconstruction Amendments hadn’t changed its meaning at all by giving Congress explicit authority to do what it thought necessary to end the long tradition of oppression of Black people especially in the secessionist states.
In fact, the secessionist states were beggars, and were not admitted as equals. They were under the control of the Union Army and the federal government, and were not permitted to rejoin until they ratified the Reconstruction Amendments. Post-bellum power structures refused and ratification was forced on them.
Having ignored the Constitution and actual history, Roberts analyzes a set of data points that amazingly support his long-established views. Then he declares that he’s right and Congress is wrong, so §5 of the VRA is unconstitutional. No problem, he says, because §2 remains.
But not after Louisiana v. Callais and Allen v. Milligan. There we learned that the 14th Amendment prohibits any discrimination based on race in any form or for any reason. As explained by Alito in the latter, there’s a tension between “our colorblind Constitution” and “vote-dilution” claims. The phrasing hides the actual tension. If what we’re talking about is race, where’s the race in voter dilution claims? Well it’s that the white people in Alabama who make up the majority can’t grab all the power from the Black people in the minority. That tension would be resolved in favor of the minority in a functioning democracy.
Here’s a non-academic history of the evolution of the term colorblind from the idea that Black people are full citizens to its use to protect the power of the entrenched. Conservatives simply appropriated the term for their own ends. They use words as the drivers of discussion instead of as tools for arriving at a common understanding. That kind of thinking poisons democracy.
In Shelby County Roberts claimed that racism wasn’t a big problem in the covered states. In Mullin v. Doe, Alito explains that racism doesn’t even exist unless there is no other explanation. In that case, the Haitian plaintiffs asserted that Trump and his apparatchik Kristi Norm revoked their Temporary Protected Status because of racial animus, and cited numerous public statements by both, statements that any normal person would recognize as racist. Nope, said Alito:
None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications.
In other words, the test for racism is whether Alito and his totally not racist colleagues see racism. And they never will. So racism will never be a problem again. Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett have defined it out of existence. The Reconstruction Amendments are rendered useless. Congressional power is stripped away and subsumed as part of the Judicial Power.
This sequence of cases isn’t interpretation of the constitution. It’s the use of arrogated political power by a bunch of unelected partisans. It’s a crime against democracy.
Impeach all six.
__________
Featured image: Charles Sumner, leader in the effort to enact the Reconstruction Amendments, via Wikipedia.
The post SCOTUS Majority Says Racism Is All Gone appeared first on emptywheel.