Back to the Past – the Sordid history of SCOTUS decisions related to the rights of African-Americans in the 19th century.

The recent decision by the Supreme Court in Brnovich v. DNC enables legislation that makes it more difficult for many members of lower income and minority groups to vote, and marks a significant step back to the drift of SCOTUS decisions during the 1800s which seriously (and for a long time lethally) demolished the rights of African Americans in this country. Some of those SCOTUS decisions in the late 1800s destroyed the possibility of full civil rights for African Americans and indeed cost many lives in the process, for decades to come. These decisions, and their consequences, should never be minimized because they were instrumental in bringing about the era of Jim Crow, the Ku Klux Klan, and large-scale suffering to significant numbers of people.

While most people are very likely familiar with the Civil Rights laws passed in the 1960s and after, fewer are likely to be familiar with the fact that similar Civil Rights laws were passed in the 1870s. Had these not been ruled unconstitutional at by SCOTUS at the time, close to a century of Jim Crow segregation, discrimination, violence and lynchings might possibly have been averted. The SUPREME COURT OF THE UNITED STATES was not only totally complicit, but was a key player in turning the U.S., when it reached a fork in the road, away from civil rights and down the road to racial oppression and exploitation. It was not until the 1950s, beginning with the Warren Court, that this direction was to change, with the court moving in the direction of protecting Civil Rights – such as with Brown v. Board of Education (which overturned the previous (1800s) decision of the Court in Plessy v. Ferguson (1896) that had upheld segregation in the U.S., and from which the brilliantly infamous phrase “Separate but Equal” was derived.

The recent court decision marks another step towards the 1800s type decisions. Following a partial gutting of the Voting Rights Act of 1965 in the Shelby County v. Holder (2018) decision, the Court has now come back and gutted almost all of the rest, once again prioritizing stale, sterile, legal abstractions and theoretical constructs over human rights (in this case, the right to vote). The reason why Brnovich v. DNC is important is because once again the court has staked out a position, as it freely admitted in the decision, that restricting some (particularly minority) people’s real (not theoretical) right to vote, isn’t that big a deal. A key part of the decision essentially limits the collection of ballots by third parties. This will hit Native Americans particularly hard, since many Native Americans in the state live on large reservations in areas which have no roads, polling places, or even direct mail services. Older people in particular have a difficult time turning in ballots in this situation. Another key part of the bill essentially throws out the provisional ballots of voters who may have shown up at the wrong precinct. The Court may be right, this will potentially impact a small percentage of voters. Nevertheless, that may be all that is needed to turn an election outcome in a very close election in a purple state such as Arizona has seemed on its way to becoming. But perhaps the bigger issue is that the guidelines set by the court will make it much more difficult to challenge voting legislation that is discriminatory. People should understand that the Warren court and the years after, were in a sense the culmination of an era that walked away from the 1800s court role on Civil Rights, and these new decisions reflect a regression back to the more traditional conservative court role so clearly evident in those 1800s civil rights decisions.

Some of the U.S. Supreme Court Decisions in the 1800s that show it’s deeply felt obligation to protect Constitutional Civil Rights of African Americans and minority groups (/s) include:

1857 Dred Scott v. Sanford The Court under Chief Justice Taney, ruled that people of African descent who were slaves or who had been slaves and subsequently freed, along with their descendants, could not be United States citizens. They could not sue in federal court, and slavery could not be prohibited in U.S. territories before they were admitted to the Union, since that would violate the Due Process Clause of the Fifth Amendment. This decision was one of the key factors leading to the U.S. Civil War which broke out 4 years later.

1873 Slaughter-House Cases

The court ruled that the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only protects legal rights that are associated with federal U.S. citizenship, not those that pertain to state citizenship (despite the fact that the Amendment refers specifically to states). Subsequently, any rights guaranteed by the Privileges or Immunities Clause were limited to areas controlled by the federal government.

1876 United States v. Cruikshank The court ruled that the Bill of Rights did not apply to private actors or to state governments despite the adoption of the Fourteenth Amendment. It reversed criminal convictions for civil rights violations by anti-reconstruction white supremacists, who murdered at least 60 African Americans in what became known as the Colfax massacre. The case represented a major blow to federal efforts to protect the civil rights of African Americans. Federal charges had been brought against some of the white insurgents under the Enforcement Act of 1870. This act prohibited two or more people from conspiring to deprive anyone of their constitutional rights, and the charges included hindering the freedmen's First Amendment right to freely assemble and their Second Amendment right to keep and bear arms.

The court ruled that the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment applied to the actions of state governments, but not to individuals. The decision left African Americans in the South at the mercy of increasingly hostile state governments dominated by white Democratic legislatures, and allowed groups such as the Ku Klux Klan to continue to use paramilitary force to suppress black voting.

1883 Civil Rights cases A group of five cases in which the United States Supreme Court ruled that the Civil Rights act of 1875, which prohibited discrimination in hotels, trains, and other public spaces, was unconstitutional and was not authorized by the 13th or 14th Amendments of the Constitution. The court ruled that these Amendments did not protect people against acts of private discrimination, and the Federal government did not have the power to pass legislation that barred racial discrimination.

1896 Plessy v. Ferguson The Court ruled that government-imposed segregation in the U.S. was constitutional. It legitimized the various state segregation laws which sought to re-establish white supremacy, particularly in the south.

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NPR, The Supreme Court's Failure To Protect Blacks' Rights https://www.npr.org/.../the-supreme-courts-failure-to...

Briggs. William and Jon Krakauer The Massacre That Emboldened White Supremacists: The 1873 murders of dozens of former slaves in a flyspeck Louisiana town still reverberate. New York Times. https://www.nytimes.com/.../black-lives-civil-rights.html

Lane, Charles. “The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction.”

Goldstone, Lawrence. “Inherently Unequal: THE BETRAYAL OF EQUAL RIGHTS BY THE SUPREME COURT, 1865-1903

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To Bust or Not To Bust

Where the Movement Goes From Here

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The June 7 primary results, particularly California, pretty much seem to have sealed the deal as to who will be the Democratic Party's Presidential nominee. Many Bernie supporters are now in the rather unhappy position of having to decide where to go from here. Some are “Bernie or Bust,” others favor hopping on the Hillary bandwagon, and some even lean towards an anti-Trump effort that is not explicitly pro-Clinton. As one who did some registering, calling and canvassing for the Bernie campaign and who is “still Bernie” based on respect for many of the positions he espoused, and for the courage and integrity he brought to this race and to the political system, below are a few of my thoughts .

First, some basic facts. At the start of his campaign Bernie made it clear he was going all out to win this race, which was considered a long shot but a possibility. He also acknowledged that a key aim of the campaign was to mobilize a large number of disaffected Americans into an effective movement for greater equality and justice in this country. At this point, it seems clear that Hillary will go to the convention with the majority of total delegates and the largest number of pledged delegates, and will have received the largest number of votes from people who turned out in Democratic Presidential primaries and caucuses. While there are some very legitimate complaints about the role of the Democratic National Committee in putting its thumb on the scale particularly through its scheduling of debates, and there have been concerns about election fraud having taken place at various state primaries and caucuses, all in all as expected Clinton does appear to have the most votes, and barring any indictments before the convention, is set to be the Democratic Presidential nominee, all talk of convincing the super delegates notwithstanding.

Many Bernie supporters, including myself have some very real concerns with Hillary in terms of policies and integrity. Her hawkish foreign policy views and military industrial complex support seem to augur a foreign policy of greater emphasis on military intervention (as well as unnecessary deaths and casualties), which in the long run will likely prove to be counterproductive to our security, economic and environmental interests. Her much touted “experience” in foreign affairs has often been indicative of poor judgement leading to tragic consequences, including her support for intervention in Iraq, for anti-democratic policies in Honduras, and blustery rhetoric but ultimately failed policies in the Middle East. If she had a strong environmental perspective, her propensity to support military action would ultimately override its impacts. But she has actually been pretty weak on a number of key environmental issues of our day. On the Keystone XL pipeline, as Secretary of State she was strong on “no comments” when not expressing her inclination to approve the project - right up to the outset the race for the nomination (at which point she decided that she actually did not support the pipeline). Similarly, on the Trans-Pacific Partnership trade agreement strongly opposed by most environmentalists as well as labor, she indicated approval of the agreement until the primary campaigns, and then declared her opposition. The Obama administration has acted to prevent release of State Department records on her role and what she said in discussions on this agreement, which seems to be consistent with her general tendency towards lack of transparency (see record on Wall Street speech transcripts, and State Dept. emails - on which there is a current criminal investigation taking place which could also impact the Presidential election). Her previous support for Monsanto and fracking also grate against the sensibilities of environmentalists and others concerned with increasing corporatization. Finally (at least for this paper), Clinton’s close association with and support from and for Wall Street and the banking and finance sectors make it unlikely that the current drift towards oligarchy would be slowed significantly under her administration. It seems that even the Koch brothers and the Bushes may end up supporting her candidacy.

With all this said it is worth pointing out as Bernie himself has, that Donald Trump would be a danger and disaster as President of the United States. Trump’s fraudulent business practices (for which he is currently being sued, and also evident in his four business bankruptcies which left creditors holding the bag for his mistakes), his appeals to bigotry, his narcissism and demagoguery, all suggest an easy willingness to manipulate, exploit, and scapegoat others in pursuit of personal gains. His outright denial of climate change and support for unbridled fossil fuel development would, according to most scientific estimations, fast track us to environmental catastrophe. While at times he claims that his foreign policy stances would be less provocative and war prone than those of Hillary, it’s hard to give credence to much of what he says because it changes so often. Those who tend to be most vulnerable in this country, women, minorities, working people would very likely bear most heavily the brunt of a Trump administration. And his rhetoric and support from extremists often bring forth a noxious aroma of ethnocentrism and even fascism.

So how do we deal with this lesser of two evils situation? Bernie has intimated that he will stay in the race at least until the party convention with a contested convention in mind, and I hope he does despite all the flack he'll get for that from the media and the beltway. As an authentic voice for a significant number of Americans who believe in progressive policies that have generally not been on the table, and who generally have not had much of a voice in the political system, his voice and the movement he represents deserve to be heard. Sooner or later, however, it will be necessary to decide how to proceed and my feeling is that rather than draw lines in the dirt right now, it might be better to adopt a more nuanced approach, keep an open mind and see how things play out. If the “Bernie or Bust” people end up helping elect a President Trump, they probably won’t be doing the country a favor. On the other hand there are certainly reasons to be concerned about and fed up with Hillary. Probably the best check on Hillary would be recognition and a role for the Bernie wing. Thus, in deciding on a position towards Clinton, significant consideration should be given to the extent to which concerns of the Sanders campaign are addressed before and during the Convention. If Hillary really wants to include Bernie supporters rather than just co-opt them, she could provide evidence in a number of ways. One would be through her choice of a running mate. A genuine progressive (my favorite would be Jeff Merkley of Oregon, the one Senator to support Sanders) could reflect sincere interest in reaching out to Sanders and his supporters. There is currently some talk of Elizabeth Warren, a bit of a progressive icon at least until the Bernie campaign in which she remained neutral. I personally am a bit dubious about Warren in terms of likelihood and effectiveness. But she or any non-Bernie supporting Progressive would be ok with me as long as they signify outreach to rather than marginalization of Bernie and his supporters. Bernie brought something to this campaign that has not been seen in this country for a very long time, an outside voice of integrity from the left that sought to change the course of this country towards a more democratic, socially just and environmentally conscious direction. Any attempt to marginalize this voice and treat Bernie in a way that leaves him and the movement which garnered close to half the pledged convention delegates in the lurch, does not deserve the support of this movement, regardless of the convention’s VP choice.

A fair share of influence and some concessions to Sanders’ ideas in drawing up the party’s platform should also be considered reasonable to expect in return for support from the Bernie wing. We will certainly not be getting, and shouldn't expect to get everything on our wish list. But issues like campaign finance reform and transparency, election reform (including primaries and caucuses), health care improvement and extension, effective action on climate change, movement towards ending growing income equality, and inexpensive access to higher education, should be clearly and strongly addressed. And I think they will be at the convention, although putting Clinton’s feet to the fire in following up may be required later on. Different people will have different conceptions of what would be acceptable. But if there is willingness on the part of the Clinton side to reach genuine agreements in an atmosphere of mutual understanding, this could be considered an invitation to sit at the table that should be accepted in order to accomplish goals that will benefit the American people. If such actions are not taken, then it’s everyone to their own conscience as it is clear that there is not, and probably will not be a door open for cooperation should Clinton become President, at least in any way beyond rhetoric and clichés. Some will still see Hillary as the better of the likely alternatives in the Presidential race, others will say a pox on both houses and sit out or maybe vote Green, while a possible middle ground would be an Anti-Trump movement that is not explicitly pro-Hillary.

This brings me to the second, and possibly even more important issue that I think will have to be addressed soon, especially after the convention, e.g., the direction of the movement that Bernie’s candidacy has catalyzed. With his vision of a broad based movement drawn from people serious about doing something to protect this planet for future generations by doing something about climate change, those interested in transcending identity politics in favor of greater opportunity for lower income and middle class people of all backgrounds, those furious about the ever growing oligarchic domination of political and economic life in this country in contrast to valued democratic ideals, Bernie presented a bit of an alternative to the politics as usual that has been leading us to a dangerous and challenging crossroads. And he succeeded in rallying large numbers of concerned Americans into a significant political force. If that base fragments it will likely be back to square one and politics as usual, at least until that wheel gets reinvented (or broken). On the other hand, a lasting legacy of the gallant, grassroots movement that propelled an unusually brave voice in the American political system could be a continuation and growth of the movement and networks that have been formed in this campaign, with the potential to bring to the table of the U.S. political system a perspective that has long been absent. This will not be easy without the campaign related media publicity (meager in Bernie’s case) and the consistent trail of events and rallies characteristic of an ongoing presidential race, and with stubborn and independent minded people holding similar values but different priorities, and groups differing on how to achieve even shared goals eyeing each other suspiciously. After the convention there will be some who go the route of Bernie or Bust, and others who will hop on to Hillary and Democrats. Already, MoveOn and Robert Reich, (as well as Bernie himself) have made it clear that in their view, going along with Clinton will ultimately be necessary to ensure Trump’s defeat. For the movement to continue it will have to find a means of recognizing and ultimately accepting as legitimate these different perspectives in order to avoid the typical factionalization and recriminations that often disable political movements. This may be the ultimate test of its ability to succeed, a willingness of people in the movement to respect and encompass different viewpoints on tactics in the effort to bring about their shared goals.

The new money shell game in campaign funding

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"Now, as new laws and a major Supreme Court decision have removed barriers to corporate giving, Republican operatives have embraced the use of nonprofit issue groups that can keep donors’ identities secret." NY Times

Bailout Succeeds

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Here we go again - Dems cave to Bush and he gets what he wants after yet another administration SNAFU. Do they really believe the Bush - Paulsen team, with its great track record and prescience on the economy, the war, the environment, etc. on this? I remain skeptical as do many economists, as to how effective this policy of a government buyout of corporate toxic debt is really going to be. First results don't seem to promising. Per Barry Ritholtz

Wow, that's a nearly 450 point swing.Very surprising to see the bailout pass, and get signed into law, and then see the market fade.
Once again, I have to say -- I hate to read too much into intra-day action, as its mostly noise, but this is not a positive development .

The corporatists have been saved from themselves, but who saves the rest of the country from them?

They’ve Tanked the Economy, Trashed the Environment,
Wasted the Military, and Lied Us Into War.
Yippee, Elect Another Republican

Veep Debate

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I don't forgive Biden for letting Palin get away with that "white flag of surrender bit". He should have taken that and jammed it down her throat. (not meant to be sexist - they should do the same with McCain). Why not say "this is beneath the dignity of a person who wants to be vice president. Are you saying that that anyone who opposes your policies is a traitor? Are you saying those Iraqi Veterans against the War are waving that flag? The Iraqis want us out, the American public wants us out and you and McCain want us in - your saying those who disagree with this policy of spending even more lives and dollars on a war that was based on disinformation to the American public and the world from the first, and for which even the Iraqi government wants a deadline on the presence of American troops, is in favor of surrender? I consider that to be an insult to to the American people and American principles."
But then again - Democrats.

They’ve Tanked the Economy, Trashed the Environment,
Wasted the Military, and Lied Us Into War.
Yippee, Elect Another Republican

Temporary Success on the Senate Telecom Bill and Retroactive Immunity

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Sen. Harry Reid pulled the Senate Telecom Bill yesterday, after the opposition put up by Senator Chris Dodd and a few others (Sens. Russ Feingold, Barbara Boxer, Sherrod Brown, Maria Cantwell, John Kerry, Ron Wyden, Tom Harkin, Benjamin Cardin and Robert Menendez). Dodd had placed a hold on the bill to prevent it from being brought up because of its provisions for giving telecom companies complete retroactive immunity for having broken the law by illegally providing the administration with client information without court warrant or legislative authorization (see Glenn Greenwald for excellent reporting on the issue). Dodd also threatened to filibuster attempts to pass this version of the bill. He did this as a response to activity from netroots and grassroots opponents of the bill. Reid had the bill brought up nevertheless, ignoring the hold placed by his fellow veteran Democratic Senator, despite having continuously respecting the holds placed on bills by Republicans and administration supporters.

At this point, Reid’s pullback of the bill is a victory of sorts for those who have opposed the excessive surveillance and retroactive immunity provisions of the bill. However, it is only a temporary victory and the issue will come up again in January. And it seems clear that the Repubs and the Dem leadership will very likely be working on ways to overcome Dodd’s opposition and threatened filibuster. Be prepared – they will.

One suggestion I would make would be for those who are against this provision of retroactive immunity for illegal actions, who are registered to vote as Democrats, and who get mailers from the Democratic Senate Campaign Committee asking for contributions - send them back a note saying that you will be making contributions, but they will instead be going to Russ Feingold’s Progressive Patriot Fund. AND THEN DO IT. If enough people were to do that, who knows, it just might once again cause some Senators to take notice of a bit of dissatisfaction at the grassroots level.

A Tale of Two Elections

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Over the weekend two elections occurred in far flung regions of the world. In oil rich Venezuela, which the Bush administration has derided as "a menace to democracy in Latin America" under the regime of Hugo Chavez, and in which the administration has been seen as having played a role in the attempt to overthrow by way of a military coup the elected government, the election concerned a series of constitutional amendments which would, among other things, have eliminated term limits for the President, and provided the office with additional administrative powers. Opponents criticized this as a grab for power and insisted that it would make Chavez a President for life. This would seem to be a bit far fetched since there are no term limits for most parliamentary chief executives, and even in the U.S. there were no term limits for the President until the 22nd Amendment which was adopted in 1951. After the election, the "undemocratic" Chavez accepted the outcome by all accounts in a conciliatory manner when it turned out that the changes he sought were being defeated by a margin of approximately one an a half percent.

In Russia, where Vladimir Putin rules, a man who’s soul George Bush claimed to have seen into, and presumably found good, and with whom the president has been said to have formed a close personal relationship, the elections were found to be fraudulent by a number of observers from within and outside the country.

"European states expressed alarm over the outcome of Sunday's parliamentary poll after rights watchdogs said the campaign had been marred by biased media coverage and abuse of government resources in favor of Putin's United Russia.
But analysts said many European states now acknowledged that Moscow, whose cooperation the West wants over disputes from Iran to Kosovo, was increasingly impervious to outside criticism.
Sharper reaction came from German Chancellor Angela Merkel's government, seen as less close to Putin than that of her predecessor Gerhard Schroeder.
"Measured by our standards, it was neither a free, fair nor democratic election," said spokesman Thomas Steg. Foreign Minister Frank-Walter Steinmeier urged Russia to probe abuses."

Bush has often spoken of his policies as being supportive of democracy for all people, regardless of culture and background. This weekend’s elections, clearly, if somewhat ironically outline the quality and the integrity of both his judgement, and his commitment to democratic process.

The Electoral Aftermath - Second Shoe Falling?

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The defeat of the Repubs was pretty massive and might reflect the birth of a truly national Democratic party, and potentially the onset of a new realignment (that would be right on schedule if 1968 is considered the beginning of repub ascendancy). A really national Democratic party would actually be a somewhat new phenomenon, as even at its height during the 1930s to 1970s the party generally was an uneasy alliance of Northern Democrats and Dixiecrats. This coalition did not provide a strong foundation for progressive policy, and its most successful policy accomplishments took place either after the 1934, 36 or 1964, 66 elections, following national crises and landslide triumphs. More often, there was a marriage of convenience when it came to organizing the Congress, but on policy most Southern Democrats generally allied with fellow conservatives of the Repub party.

Nixon’s Southern strategy (borrowed from Goldwater) led to the shifting of the Solid South from Dem to Repub, to the point where the Dixiecrats became Dixie-cans, and from Thurmond to Lott, Sessions to Miller ad nauseum, they became Repubs in name as well as in policy. Yet the Repubs maintained and even extended their conservative bases in Western and rural regions, and in suburbia. The Party’s shift from Lincoln to Dixie-can, epitomized by Gingrich, Delay, Lott, Frist, etc, and its success across the country all worked because it picked up the South without giving much ground elsewhere. The Dems often successfully contributed to this effort with circular shooting parties, and failure to get beyond identification as a coalition of various self-interested population sectors without an overall all-embracing theme that could galvanize a broad movement across the country. Maps of the 2000 and 2004 presidential election outcomes, by state, thus, largely coincide with maps of states that allowed/prohibited slavery, but with partisanship reversed (blue states were those where slavery was prohibited of course). Key exceptions to this pattern were Indiana and Ohio. In addition, The New England/Middle Atlantic states retained a fair number of Republican districts where "moderate" repubs still reigned from Civil War days despite the shift of the party’s center of gravity southward.

The pattern in 2006 suggests that the second part of the shifting of parties may now be kicking in. New England Republicans largely wiped out in the House, Indiana and Ohio possibly in partisan transition (despite Lugar), and a number of Middle Atlantic rural, hereditary repub districts gone Dem. In addition, while the Dem victors from Red states (Tester in Montana, Webb in Va.) may not support "liberal" "social" issues (gun-control, same sex marriage) they do seem genuinely on board for a more equitable economic policy approach, and in resistance to the internal and external abuse of power that has become the repub raison d’etre. Thus, the foundation for a more national and potentially cohesive party grounded in the traditional "North" (and now including rural areas there), but focused on greater equity in economic policy and a more civil approach to internal and international politics, may emerge - if the party’s tendency to dissemble can be overcome and common ground among constituents emphasized. That of course is a pretty big if, but given the potential for abuse of power that the repubs have shown, their increasingly authoritarian and demoguogic tendencies in the context of an increasingly cabled and databanked society, the incentives for common sense and collaborative action are certainly augmented.

One other thing, despite the relatively large scale of the Dem triumph, given the utter corruption, incompetence, vindictiveness and clandestine authoritarianism characteristic of the regime, the victory isn’t really all that impressive. What will happen when progressives don’t have the Foleys, Neys, Delays Abramoffs ad nauseum, consistently breaking front page news - bam-bam-bam, while at the same time war deaths surge and intelligence reports show that the reasons for war were not only non-existent but that the war is counterproductive in terms of fighting terrorism, and the military papers all call for the Secretary of Defense's resignation the week before the election. Something to start considering now. Investigations may (and should) be held - this administration has talked about the concept of accountability more than probably any other (though they clearly meant accountability to apply only to those outside their tent) and there's much that deserves to be exposed. This would be good not only for the country, inasmuch as the country values truth and honesty, but also for the Dems as a party if investigations are done with a sense of fair play and openness. The Dems will probably come up with modestly appropriate policies re healthcare and insurance, Iraq, taxes, and not much will probably get done due to the divided state of government. But whether the second shoe remains fallen and a realignment occurs may depend on the success of progressives in establishing and maintaining some emotional and communicative connections with people who ultimately will never read those policy documents (though they might benefit from their implementation), and who will be getting much of their information from news conglomerates and TV ads.