The Mirror of Racial Tyranny in The Civil Rights Cases

On the 135th Anniversary of the Supreme Court’s opinion in The Civil Rights Cases, it is worth reflecting on how that opinion — which came after Reconstruction but before Jim Crow—reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the power of the history of slavery and the salience of race, contributes to enduring white supremacy.

This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.

The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments.

First, the Court held that the power to regulate individuals and corporations fell to the states, not the federal government. Second, to the extent Congress passed the Act under its Fourteenth Amendment authority, the Court held that the Fourteenth Amendment was limited to regulating actions by states and not private actors (a doctrine that still holds today). Finally, the Court interpreted the Thirteenth Amendment, meant to remedy the badges and incidents of slavery, as only allowing Congress to abolish denials of legal rights extending from past slavery.

The Court’s underlying rationale is truly telling: accommodation of ex-slaves in present commerce is irrelevant to past slavery and the Thirteenth Amendment. African Americans complaining of such discrimination should seek state remedies or federal remedies to the extent Congress wishes to make them. This may be true as far as it goes, and by this time we already knew that the ex-Confederate states and their agents had not been aggressive in pursuing remedies for discrimination—the reason for the 1875 law. And we also know that after this act was struck down, Congress passed no other civil rights legislation for over eighty years.

Indeed, the Court denies the possibility that racism may be tied to the caste system that slavery created. Bradley claimed that to treat discrimination in public accommodations as related to bias arising from slavery is to take “the slavery argument” too far:

It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal within in other matters of intercourse or business.

This is the kind of slippery-slope argumentation that willingly denies the past of slavery and the (obvious) interconnections between white racism, racial caste, and its more immediate outcomes.

This was done despite the dissent of Justice John Marshall Harlan, who warned that without the intervention of Congress and a more fulsome interpretation of the Reconstruction Amendments, African American citizens will not be able to “take the rank of citizen” rather than subordinated class. One hundred thirty-five years later, and it is this same battle that we fight today. As Harlan put it—and it is worth reading his argument in detail:

The difficulty has been to compel a recognition of their [African American’s] legal right to take that rank [of citizen], and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. At every step in this direction the nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable, ‘for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.’ Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitutional amendments be enforced [as Harlan believed they were meant to be enforced—to end racial discrimination in civil rights based on race or previous servitude] . . . there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the later to dole out to the former just such privileges as they may choose to grant.

In other words, this class tyranny betrays the values of the Constitution by interfering with the goal of Reconstruction – equality of all citizens. Class tyranny in 1883 was the weapon of those who sought to oppress on the basis of race. Class tyranny intersects with racial tyranny and can target multiple groups over time. Such class tyranny in the service of white supremacy is itself antidemocratic and against the vision of the reconstructed Constitution. And the decision narrowing the power of the national government to stand against such tyranny under the guise of narrow formalism will allow such tyranny to flourish and reinvent itself.

What of these themes do we see in 2018?

We have seen the Roberts Court deny the possibility that the larger harms of voter suppression may be tied to the historical motivations and past racially discriminatory practices of state governments. In Shelby County v. Holder, the Court relies on the claim that “the South has changed” to justify nullifying Congress’s judgment that Section 5 of the Voting Rights Act ought to be used to continue to supervise the recalcitrant ex-Confederate states in their voting practices.

We see the Court once again relying on manufactured formalism to justify hard lines between state authority and federal authority to supervise voting, immigration, education, and other racial (as well as gendered, class-based, and sexual preference-based) fault lines; and states have taken this opportunity to institute disenfranchising and discriminating practices in this space. We have seen commentators, legislatures, and judges argue that talking about race in and of itself is divisive, and that aspirations towards post-racialism should silence debate around race despite the racist actions that daily remind us about its enduring salience and power.

This post-racialism argument is the modern-day version of the “running the slavery argument into the ground.” The holders of these views (on the right and on the left) decontextualize discrimination, rely on admitted intent rather than see discriminatory actions in and through context, and rest comfortably within deep denial about how subornationist structures still dominate our society.

We can see these things in The Civil Rights Cases. It is a mirror to our 2018 society. This opinion reflects the structures and habits of mind bent towards continued white supremacy today.

(Cross-published at Race Law Prof Blog.)

Constitution Day Cross-Country Tour

I started my Constitution Day tour at my home institution, Marquette, on Monday. There I spoke to the ACS student chapter about constitutional values and the right to vote. Then I hopped on a plane and headed out to Penn State Law School for another discussion of constitutional values and their relationship to voter suppression. That was quite an adventure, as this tweet shows. The final leg of my tour takes me to the left coast and the University of Puget Sound. In fact, I am writing this post just before my flight to Tacoma. If you are in the Tacoma/Seattle area on Thursday at 5:00 pm, I hope you will join me.

Integrity, Equality, & the Fragility of the Right to Vote: A Constitution Day Lecture
University of Puget Sound
Thursday, Sept. 20 5:00 pm in the Rotunda

Constitution Day Lecture Poster2At the heart of the modern battles over the American right to vote is a tension between two constitutional values. On one side is the original Constitution and the autonomy it grants the states over the franchise. On the other are the Reconstruction Amendments and the modern demands for equality. With few textual caveats, the Constitution of 1789 gave states near-autonomy to shape the right to vote. Many states did so in a way that reflected an antebellum vision of citizenship rooted in popular (in its time) eighteenth-century notions of status, wealth, and identity—a definition that excluded many. This value of autonomy, and the social ordering underlying it, continues to influence the modern contours of voting rights despite the social transformations the United States has undergone. Yet these movements toward social transformation put the value of autonomy in tension with the value of equality, so that within a generation of the framing of the Constitution, the identity of the American citizen became a contested concept. This contest led to the post-Civil War amendment of the Constitution to include doctrines geared towards citizenry equality and the practice of federal intervention to insure enforcement of those doctrines. Thus, from a modern perspective, equality of citizens has become an important (and some may argue more important) a value as state autonomy. Yet this proposition remains a contested concept measured against the value of state autonomy. Thus, state autonomy (and its use to hold to the arguable residuary of an antebellum social order) and post-Reconstruction equality (and its use to form a new social order) continue to be at odds. This talk will offer perspectives on this competition of values within the right-to-vote context and describe how these tensions play out in the modern-day voter suppression debates.

Constitution Day 2018 — Marquette ACS TODAY at 1:00 PM CDT Room 342

Today — September 17 — is Constitution Day, the day the United States celebrates the signing of the Constitution. As part of celebrating Constitution Day, on or about September 17 educational institutions across the country have programming that discusses the Constitution in some way, shape or form.

The right to vote is of paramount importance to our constitutional framework. us-constitutionIt is this right that makes the US a democratic form of government, it is this right that is, in the words of the Supreme Court, “preservative of all other rights.”

This week I will be presenting a series of lectures regarding the Constitution and the Right to Vote. First off, today at 1:00 PM CDT here at Marquette University Law School, I will be speaking to the American Constitution Society chapter on the Right to Vote. The talk will be in Room 342 of Eckstein Hall.

This will be the first of three talks I will be giving as part of this Constitution Day lecture tour. Stay tuned for details about my talk tomorrow, September 18 at Penn State Law (University Park) and my talk this Thursday, September 20, at the University of Puget Sound.

 

Starting the Next Phase (aka First Day of School 2018 — At MULS)

I am excited to be at Marquette Law not only to talk about the ephemera of probate, but also the all too real and big picture issues around voter suppression, racial segregation, and other issues that matter greatly to the United States and to the Milwaukee and Marquette community in particular.

After a hiatus from blogging, I wanted to write today that I have returned to the blog — and that I get to start an exciting new phase in my work.

Specifically, I have arrived at Marquette University Law School — my new institutional home. Though I announced my move in March, and I moved into my office in Eckstein Hall in Milwaukee last month, MU+exterior+signageI’m excited to teach my first class here as a full-time faculty member today (during which, I’ll take my students to Dickensian England — via Youtube, of course — in the first meeting of my Trusts & Estates course).

I am excited to be at Marquette Law not only to talk about the ephemera of probate, but also the all too real and big picture issues around voter suppression, racial segregation, and other issues that matter greatly to the United States and to the Milwaukee and Marquette community in particular. I look forward to conversations around these issues (like the ones I had last year) with members of my new communities.

In that spirit, I am also returning to blogging more regularly, to speaking, traveling, and writing, and to sharing past and future major projects. So, expect more posts in the upcoming days, weeks, and months. For example, I will share (finally!) my TEDx talk on the Meme of Voter Fraud. I will also share information about a talk I will give next month on “Integrity, Equality, and the Fragility of the Right to Vote.” And this is just the beginning for this fall semester.

Stay tuned!

On Wakandan Constitutionalism or the Humanization of Blackness in Black Panther

The Black Panther movie has drawn the attention of the entire world. It is the Marvel Cinematic Universe’s highest-grossing movie. Think pieces have proliferated across the internet—and [the Race Law Prof Blog’s] symposium* is no exception.  And this boundary-breaking moment in pop culture has revolved around the unabashed humanization of Africans, the African Diaspora, and the subjugation of the African people.

In other words, despite this being a movie based on a comic book, Black Panther humanized blackness in a complicated and real-feeling way. This realization offers us a moment to have the beginnings of a different conversation about race.

To appreciate this, let’s think about how popular blockbuster films has typically portrayed blackness. While there are certainly exceptions, Hollywood has deployed numerous tropes that misrepresent and underrepresent blackness. These include the “Magical Negro” who uses powers in service as a sidekick to a usually white character, the “Black Thug,” who is intended to be a receptacle of dehumanized behavior and pathological violence, and the deracialized Black hero who is virtuous but only happens to be black.

But Black Panther, as Afrofuturistic fiction, forces us to re-imagine, confront, and defy the underlying narratives that drive those Hollywood tropes. And it unapologetically does so by, first and foremost, forcing us to imagine a world wholly owned by Africans, a world where Blackness is unbounded by white supremacy.

Wakanda is separate and apart from the white settler colonist world, yet its technology and sophistication (and its infiltrative practices and policy of noninterference) are more powerful than the nation-states of the colonialist or colonialist-influenced powers. While this utopia is imperfect and the film serves to expose its flaws—and this state-view is open to critique, as Saru Matambanazo has suggested in this symposium—this imaginative offering of Black statehood not subjugated by white settler colonialism defies the tropes that blackness is bounded by in Hollywood blockbusters.

Moreover, Black Panther humanized blackness by making it the moral norm within this cinematic construct. Wakandan blackness and Oakland blackness are the poles of the film. The alien infiltrators into this world are the two white characters, jokingly known as “the Tolkein white boys.” This defies the received-tradition of antiblackness.

Wakandian women and men are royalty, leaders, followers, citizens, and soldiers. Not the British Crown, the American President, or the Russian Federation. Wakandians own the conversations. Wakandians own the family, policy, and visionary disputes of the film. Within this dynasty built entirely apart from white supremacy, it is the Wakandans —all Wakandans—who are the whole moral agents. And T’Challa is their king and lord protector of this legacy.

N’Jadaka—aka “Erik Killmonger”—disrupts T’Challa’s Afro-utopia by making present and persistent the question of how the power of Wakanda ought to be used in relation to Black liberation. As Robin Walker Sterling pointed out during this symposium, the heart of N’Jadaka’s complaint—and his anger—is the Black privilege that Wakanda’s isolation and power allows.

But stop for a moment and appreciate that—Black privilege as a norm and a possibility rather than an oddity; Black anger as legitimate usurping political power.

Black Panther forces attention onto racial subjugation by giving N’Jadaka the most provocative and persuasive voice in the film. He demands redress for the diaspora’s dispossession through deploying the power of Wakanda to destroy white settler colonialism by force. He transforms Wakanda—for a moment—into an imperialist interventionist state powered by what Tabias Olajuawon called during this symposium a “fugitive politic” informed by “Black Combustibility.”

Let’s be clear: the film forces us to imagine Black anger as legitimate and normalized. Black anger is given a place at the table. It grants Black anger political power and vibranium weapons. But this anger is ultimately contained when T’Challa kills N’Jadaka and retakes the throne. Many see this as a failing, as if with N’Jadaka’s death the anger ends. But the film makes this reading more complicated.

The movie ends not with N’Jadaka’s death, but with T’Challa transformation. Pivotal to this is the defiance T’Challa shows in his second ancestor scene, where he confronts the tradition of nonintervention by telling T’Chaka, his father, and the host of ancestral kings that they were wrong to be passive. Thereafter, the re-awakened T’Challa accedes to N’Jadaka’s core thesis, the need for intervention to help the African dispossessed, but he fights N’Jadaka over the throne and the means. T’Challa’s victory leads to his use of soft power intervention instead of hard power. Moreover, this use of soft power shows T’Challa’s transformation from passive caretaker to interventionist leader.

The Black Panther movie thus offers us a thought experiment that imagines an empowered state (and statehood) of blackness and forces all of us—children of the dispossessed African diaspora and children of settler colonialism privilege alike—to imagine its potential scope. Nareissa Smith spoke to imagination and vision in this symposium. She rightfully puts Black Panther in the genre of films that encourage African Americans to imagine themselves anew and then “conceive a brighter, Blacker future.”

I think there is an additional possibility: Black Panther teaches us, the world at large, that Black diasporic anger has a place at the table in our political and legal discourse. Consciousness of the harm of racism can transform our thinking and challenge us to act differently and for the better. We must grow our imaginations by focusing on the evidence in front of our eyes.

Black privileged T’Challa now seeks to build bridges because he had to confront N’Jadaka’s diasporic anger and its moral claim. T’Challa had to make sense of that anger in both his final journey to the ancestors and his final confrontation with N’Jadaka. I believe T’Challa’s preparation in Wakandan constitutionalism intersected with his new awareness of diasporic anger. This synthesis transformed his imagination. T’Challa then rejects isolationism and reaches out in a humane way. Thus, T’Challa now possesses privilege and power but that privilege now incorporates race consciousness rooted in the realities of subjugation.

The real world needs more of T’Challa’s kind of consciousness raising.

For example, consider the limits of the Supreme Court’s judicial imagination around race. In an essay entitled “Normalizing Domination,” I argued that the Supreme Court’s treatment of racialized voting rights concerns represents an unwillingness “to believe what is before them by substituting other explanations for racial discrimination.” My explanation for this is the legacy of colorblind constitutionalism made manifest in a post-Shelby County v. Holder period of post-racialist retrenchment about the politics of race. The Court focuses on narrow measures of antidiscrimination success rather than broader discourses that continue to suppress poor minorities’ votes.

Black Panther would suggest that limited imagination can be turned around through taking in the evidence before our eyes and hearing the claims of the angry and dispossessed. This kind of listening requires going beyond the narrowest of measures and tendencies towards triumphalism. It requires a more expansive vision, the normalizing of the so-called “other,” the goal of actually learning from the other side and putting of privilege at risk.

For the Court, it would require embracing—rather than denying—the benefits of a constructive constitutional race consciousness meant to humanize all citizens. It requires recognizing that our constitution is dynamic and, as Justice Thurgood Marshall recognized, this dynamism is necessary to attain the freedom we have now. By changing the premise about race and the Constitution, the outcome in cases like Shelby County can too change.

I believe that judicial imagination, political imagination, and even our collective societal imagination can be transformed through these ideas. This is the larger moral of Black Panther.

*This post was originally published on the Race Law Prof Blog as part of the blog’s symposium, “Wakandan Jurisprudence: How Black Panther Challenges Us to Examine the Past, Present, and Future of Race.”

Big News

I have big news to share.

I have accepted a position at Marquette University Law School in Milwaukee, WI, starting this fall. I will be a full professor there. I will continue teaching my core of courses, including Election Law, Civil Rights, Race and and Trusts & Estates.

While I am saddened to leave my kind colleagues and friends at West Virginia University, I am also excited to start a new adventure. In particular, I hope to bring my voter suppression scholarship to practical use in Wisconsin as well as expand my teaching and public engagement. In short, this is a tremendous opportunity and I am looking forward to it.

ACS Election Commission Panel Appearance

screen shot of Professor Ellis speaking on the ACS election commission panel

In mid-January I had the great pleasure of pleasure of participating on a panel hosted by the American Constitution Society and held at the National Press Club in Washington D.C.  The event was entitled “The Perils and Possibilities of Election Commissions.” In light of the recent disbandment of the Pence-Kobach Commission on Election Integrity (which apparently existed to substantiate President Donald Trump’s unfounded allegations of widespread voter fraud), this conversation was a timely examination of the feasibility of national election reform driven by appointed study commissions. I was honored to get to participate, and I hope you benefit from watching the video.

You can watch the archive of the event in the video embedded below, on the ACS website, or directly on YouTube. My opening statement begins at 12:33 in the video, but I encourage you to watch and listen from the beginning and take in the full discussion of this esteemed panel.

Official ACS Description

In the nearly two decades since the controversial 2000 presidential election, numerous commissions have been formed to examine and reform our voting processes. These commissions have issued recommendations on a wide variety of subjects, including voter identification, early voting, and online voter registration, and their influence can be seen in Supreme Court decisions and how we conduct our elections at the federal and local levels. Nearly a year ago, the Trump Administration established a “Presidential Advisory Commission on Election Integrity,” which was recently dissolved amid controversy and litigation. This development presents an opportunity to better understand how commissions are supposed to function and how they shape election law and voters’ experiences. Have these election commissions made our system more fair, effective and transparent? How and to what extent have they influenced voter confidence in our elections? And what challenges persist in our election processes that might be worthy of examination by such a commission?

Introduction:
Caroline Fredrickson, President, American Constitution Society

Panelists:
Robert Bauer, Partner, Perkins Coie; Former White House Counsel; Co-Chair of the Presidential Commission on Election Administration

Atiba Ellis, Professor of Law at West Virginia University

Jenni Katzman, Director of Policy and Programs, ACS

Benjamin Ginsberg, Partner, Jones Day; Former National Counsel to Bush-Cheney Campaigns; Co-Chair of the Presidential Commission on Election Administration

Natalie Tennant, Manager of State Advocacy on voting rights and elections at the Brennan Center for Justice at New York University School of Law, Former Secretary of State of West Virginia