Of Citizens and Poodles
Jul 2, 2013
5 Min read time
Dignity—personal dignity, the dignity of the individual—is the greatest victim of the Supreme Court decision in Shelby County v. Holder. In disabling the 1965 Voting Rights Act on a Tuesday, the justices denied to one eighth of our population the dignity that, on the following Wednesday, in Windsor v. United States, Justice Anthony Kennedy mobilized to justify allowing gays to marry. Instead of calling on our national experience of the last two generations, in Shelby County the Court dismisses the history of racial discrimination that continues unabated in this country. The ruses of post-racial cant have come home to roost.
Reading her opinion from the bench, Justice Ruth Bader Ginsburg recalled Martin Luther King’s words: “The arc of the moral universe is long, but it bends towards justice.” Such a long-term vision, she said, requires “a steadfast national commitment to see the task to completion.” That commitment has been “disserved by the majority's decision.” To feel the weight of that disservice and to recognize the long arm of the law we need to look at two legal cases hard on the heels of emancipation that gave substance and form to legal incapacitation.
The Slaughter House Cases (1873) and the Civil Rights Cases (1883) together dismantled the equality and civil rights promised by the Constitution. In Slaughter House the Court construed the equal protection clause of the Fourteenth Amendment so narrowly as to render it a practical nullity. In the Civil Rights Cases the Court declared most of the provisions of the 1875 Civil Rights Act unconstitutional. In his dissent, Justice John Marshall Harlan regretted how the “substance and spirit” of vital constitutional amendments had been “sacrificed by a subtle and ingenious verbal criticism” that connected the past prerogatives of the “white race” with the present presumption of the state. The legal engines of dispossession had become more effective than social custom in maintaining the racial line.
It was not until Lyndon Johnson’s 1964 Civil Rights Act that the promise of the Fourteenth Amendment was fulfilled, ensuring the constitutional right to vote, equal access to public accommodation, and an end to discrimination in public institutions such as schools and in privately owned restaurants, hotels, motels, stores, even water fountains. But it was still necessary to pass the 1965 Voting Rights Act. States with a history of racial discrimination found all kinds of ways to suppress or thwart minority votes. The federal government had to compel them to recognize a legal right. “Experience has clearly shown,” Johnson warned, “that the existing process of law cannot overcome systematic and ingenious discrimination. No law that we now have on the books . . . can ensure the right to vote when local officials are determined to deny it.” In striking down Section 4 of the Voting Rights Act, the key to the hard-won civil rights of African Americans and other minorities in this country, Justice John Roberts and his colleagues in the majority have shown that racism does not die. It just goes away to the Supreme Court.
The continued criminalization of African Americans in this country is what drives our nation—legally, politically, and socially. That a country has elected a black president, a city a black mayor, changes nothing for many of our fellow-citizens who face casual cruelty and enduring harm simply because they are black. Not to mention the disenfranchisement of ex-prisoners—13 percent of African American males (1.4 million) are permanently barred from voting. To criticize “racial entitlement,” to quote Justice Antonin Scalia on the Voting Rights Act during Shelby County’s oral arguments, while we continue to exclude the racially suspect from the pleasures of the beach (Miami just last May), from the chance to walk un-frisked down a street (New York any day of the week), from the opportunity to be free of prejudice and discrimination (anywhere anytime), is to revel in a cynicism that is a deliberate display of an old supremacy. Justice Clarence Thomas can continue to outdo his fellows when it comes to punitive disregard, but that does not mean that our society is color-blind. One token, one icon of privilege never removes the truth of marginalization.
Disregard for the legacy of slavery creates a legal terrain that overturns logic and befouls behavior. The terms private and public, state and individual, social and civic twist and turn in judicial lawmaking. In the Civil Rights Cases Justice Joseph P. Bradley claimed that once civil rights are guaranteed constitutionally against state aggression, they cannot be “impaired by the wrongful acts of individuals.” In other words, not being allowed to enjoy “accommodation in an inn, public conveyance, theater, or any place of amusement” was illegal if enforced by a state, but legal if nothing more than personal caprice. An act that flies in the face of a person’s civil rights if not backed by the state is nothing more than “a private wrong.” Not to be allowed to sit in a car set aside for “ladies” on a train is only an “ordinary” part of the social order of things. It has nothing to do with the “fundamental rights” of citizenship. Anticipating Scalia’s complaint about racial preferment, Bradley asked for the ex-slave to “take the rank of a mere citizen, and cease to be the special favorite of the laws.”
But to respond properly to what Ginsburg called “an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation” we can do no better than read Frederick Douglass’s chapter on Bradley’s decision in his Life and Times (1881). Lamenting this “national deterioration,” he condemns how the Court, as well as the newspapers, “stigmatize the Civil Rights Bill as a Social Rights Bill.” In a brilliant riposte to those who confound legal with social equality, he describes how in England he “was in the House of Commons, in the House of Lords, . . . sleeping in rooms where lords and dukes had slept; sitting at tables where lords and dukes were sitting; but I never thought that those circumstances made me socially the equal of these lords and dukes. . . . If riding in the same car makes one equal, I think that the little poodle dog I saw one day sitting in the lap of a lady was made equal by riding in the same car with her.”
African Americans, as Douglass argued a century and third ago, are entitled to the enjoyment of the privileges belonging to them as citizens—not poodles, not ladies. For that they need the legal equality that gives them the full meaning of the status and rank of citizens. Freedom from discrimination at the ballot box no matter one’s “race [or] color,” as the Fifteenth Amendment decreed, has been made a dead letter that can no longer be enforced. The justices who went along with Roberts in dismantling the Voting Rights Act must know that their decision will prompt practices that degrade equal citizenship for all as they breathe new life into ancient stigmas adhering to radical states of non-belonging.
Photo: Supporters of the Voting Rights Act outside the U.S. Supreme Court (Feb. 27, 2013) / David Sachs, SEIU
July 02, 2013
5 Min read time