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