So I have tried to keep to the posting rules of limiting my excerpt to no more than 4 paragraphs (on edit - I couldn't do it - five paragraphs below). Please go read the whole thing. It is far more powerful as a fully conceived thesis. Warning, this deals with a violent and disturbing part of our history.
https://www.theatlantic.com/ideas/archive/2018/09/redemption-court/566963/
When the Louisiana State Militia finally arrived at the Colfax courthouse on April 15, 1873, all it could do was bury the bodies. Two days earlier, a large force of white supremacists had taken control of the courthouse from the mostly black faction protecting it. J. R. Beckwith, the U.S. attorney for New Orleans, told Congress that in the aftermath the ground was “strewn with dead negroes,” their bodies plundered by whites who had come to watch the bloodshed. The dead remained “unburied and mutilated,” Beckwith said, until federal troops arrived days later to shovel them into a mass grave.
Seventy-two men were ultimately indicted for their role in the Colfax massacre, charged under the Enforcement Acts of 1870, which were passed to help the federal government suppress the Ku Klux Klan. But their convictions were overturned by the U.S. Supreme Court, which concluded that the federal government lacked the authority to charge the perpetrators. Justice Joseph Bradley, a Grant appointee, wrote that the United States had not clearly stated that the accused, in slaughtering more than 100 black men, had “committed the acts complained of with a design to deprive the injured persons of their rights on account of their race, color, or previous condition of servitude.” And it wouldn’t have mattered if they had, argued the Grant-appointed Chief Justice Morrison R. Waite, because the Fourteenth Amendment’s powers did not cover discrimination by individuals, only by the state. “The only obligation resting upon the United States is to see that the States do not deny the right,” Waite wrote. “This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.”
The decision in Cruikshank set a pattern that would hold for decades. Despite being dominated by appointees from the party of abolition, the Court gave its constitutional blessing to the destruction of America’s short-lived attempt at racial equality piece by piece. By the end, racial segregation would be the law of the land, black Americans would be almost entirely disenfranchised, and black workers would be relegated to a twisted simulacrum of the slave system that existed before the Civil War.
The article then illustrates the direct line from this decision, to Plessy v. Feurguson to the decisions to allow internment of the Americans of Japanese descent, to the current Muslim immigration restrictions just recently allowed to stand by the Roberts Courts, echoing the same absurd "facially neutral" analysis used by the court in its darkest days to uphold racist policies of the executive and legislative branches.
The Fourteenth Amendment’s guarantee of due process, however, did not go to waste. As the Republican Party abandoned its black constituency in the South, it became more dependent on, and shaped by, its corporate benefactors, which profited handsomely from being granted rights and protections denied to black Americans. As the historian Nell Irvin Painter has written: “The Court increasingly used the due process clause of the Fourteenth Amendment to protect corporations from state regulation rather than the civil rights of persons.” In case after case, “the U.S. Supreme Court had come to embrace the logic of corporations,” Painter wrote in Standing at Armageddon, her history of the Gilded Age. “These decisions outlawed virtually any attempt by states to limit maximum hours of work, of unions to strike, and of the federal government to curb or regulate monopolies or to curb the accumulation of vast fortunes.”
This, combined with the vast disenfranchisement of voters, has allowed a minority party to once again impose its will upon the oppressed.
With Anthony Kennedy’s retirement, there is no discriminatory voting restriction the justices will be unable to sanction, no immigration law born in animus they will be unable to approve, no expansion of corporate power they will be unable to accept, no grant of presidential immunity they will be unable to uphold, no financial or environmental regulation they will be unable to strike down, no religious objection to an antidiscrimination law they will be unable to recognize, no worker protection they will be unable to repeal, no limitation on abortion they will be unable to allow, and no abuse of power by law enforcement they will feel compelled to restrict. While the Roberts Court will never explicitly endorse a white man’s government in the way the Redemption Court did, in pursuit of other cherished ideological goals it will be asked to pave the road for a white man’s government by another name.
We are at yet another turning point in our history. It is easy to brush this off and say our democracy will survive, as it always has, but this ignores the sacrifices and pain and death our ancestors had to suffer every time the Republicans and their founders sought to subvert justice and liberty.
Do two things. Read this article and pass it along. Then Vote. If you can only do one, Vote.
