discrimination – Atiba Ellis

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.)

Transformations

While on sabbatical this spring, in addition to beginning my book project, I had the opportunity to work on two papers regarding race and voting in the outgrowth of the 2016 election. While these papers take different methodological approaches, they both address the problems of race in politics in the Era of Trump and how race come to shape political considerations in twenty-first century America.

We live in an era that aspires to put the Jim Crow legacy behind us, and yet racial discrimination continues to dominate our political, legal, and cultural conversations. Recognizing that legacy and thinking seriously about how to end it is the dominant theme of these two papers.

Our doctrines mandating antidiscrimination in the law of politics are designed to protect the minority from domination by a racial majority. While this concept is easy to state, the hard questions arise when politicians improperly consider race in politics, as they have in the wake of Shelby County v. Holder. Race consciousness is impossible to avoid in tasks like calibrating voting qualifications and drawing electoral districts, but courts are currently having to determine when the act of drawing the rules of voting is an act that places an impermissible disadvantage on a racial minority in order to maintain one’s political advantage. This problem lies at the heart of my paper, When Political Domination Becomes Racial Discrimination: NAACP v. McCrory and the Inextricable Problem of Race in Politics. Where doctrine has grappled with political racial domination, with the election of Donald Trump, American politics seems to have entered an era of the open re-emergence of white identity politics. But this centering of whiteness is nothing new, and its enduring power comes in part from the fact that its justifications and subordinations are often explained away. And thus, in the words of Sara Ahmed (who’s article prompted the CUNY Law Review’s publication of the collection in which my article appears) racial domination is explained away as “something else.” In Normalizing Domination, I bring this insight to bear in the law of politics.

Article Abstracts and Full-Text Links

South Carolina Law Review logo When Political Domination Becomes Racial Discrimination: NAACP v. McCrory and the Inextricable Problem of Race in Politics, South Carolina Law Review Vol. 68 (2017).
In North Carolina State Conference of the NAACP v. McCrory, the United States Court of Appeals for the Fourth Circuit struck down North Carolina’s 2013 omnibus voting law due to its discriminatory effect and the fact it was passed with an intent to abridge the ability of African Americans to vote. This decision represents a landmark victory for voting rights advocates against strict voter identification laws and other similar regulations that foster voter suppression. It also represents a remarkable and extraordinary use of the Arlington Heights doctrine to address the race or politics problem in election law. This Article examines the McCrory decision with an eye towards parsing out how the court arrived at this due care approach. It then confronts the uncertain future of McCrory considering the difficulties in distinguishing impermissible racial motives and permissible political motives, the uncertain judicial future of the post-Shelby County Voting Rights Act, and the academic literature disfavoring race-conscious remedies. The Article concludes optimistically by noting that whether McCrory represents a momentary victory in the larger attack against the Voting Rights Act or whether it stands as good law for the foreseeable future, the opinion offers a well-reasoned approach that accomplishes the ends of the Constitution and the Voting Rights Act through offering a race-conscious intersectional approach grounded in the reality of voter suppression in North Carolina.

City University of New York Law Review logo
Normalizing Domination, CUNY Law Review Vol. 20: Iss. 20 (2017).
In the 2016 election, a sufficient majority of white voters in key battleground states elected Donald Trump president. In voting for Trump, these voters, as part of the minority of voters that supported Trump, had to, through their vote, either embrace or ignore his racist, sexist, xenophobic, and homophobic rhetoric. Though it is impossible to know which, their votes nonetheless served to “normalize domination”—that is, their act of legitimizing Trump’s rhetoric made the absurd or incendiary commonplace and acceptable. Even before the 2016 election, institutions and individuals have normalized of the ideology of white supremacy by camouflaging it with other normative values while at the same time allowing it to flourish and reinvent itself. It asserts an epistemology of failing to know racism–a key component of what scholars know as post-racialism – as a means of achieving colorblindness. The late great Derrick Bell recognized how the underlying structure of American politics is defined by domination that embraces white identity politics as central. Thus, the institutions that continue American democracy seek to organize the American political and legal structure to protect such domination. This short essay focuses on this problem through a brief examination of the American law of politics and argues for a new race consciousness can be used as a compass to understand the structure of political domination and thus subvert such domination to create an egalitarian society.

Teaching Dred Scott in the Era of Trump

I taught Dred Scott v. Sanford this week. As a teacher and scholar of civil rights, it’s my job to teach the constitutional canon and how Dred Scott, and cases fairly called its progeny, misshaped our idea of equality. And while it is unsurprising to teach this canon in a course at Marquette Law on “Contemporary Perspectives on Civil Rights,” or in any civil rights or constitutional law course, what was different this time is that I taught Dred Scott for the first time in the Era of Trump.

Of course, I’ve taught the case before in first-year Property, in my Race Racism & American Law seminar, in public lectures at WVU Law, and in seminars on three different continents. I’ve written about Dred Scott in articulating my view of “tiered personhood” and blogged about its contemporary relevance. And it is fair to say that, after teaching for over 10 years, on some level, I was used to rehearsing the case often called “pure constitutional evil.”

But this time was different.

I walked into class, ready with my practiced confrontation of this intellectual monument to Chief Justice Roger Tawny. And after answering follow-up questions from last class about a case that enforced the racial classification system on which slavery depended, I began Dred Scott by reminding my students that we were studying the origin story of American white supremacy.

But before opening the casebook, I recalled that a student suggested we frame the conversation by watching a recent viral video of Univision News journalist Ilia Calderón. I had attempted to show the video in the class prior, but due to technical difficulties, this video prefaced our discussion of Dred Scott—which was not my original plan but proved more than appropriate for discussing the case in today’s political climate.

After the video ended, I found myself dumbstruck. This Klansman and his wife had the audacity to claim his superiority based purely on the color of his skin (which echoed the race classification cases from last class). He called her a “mongrel” and a “n**ger” and threatened to burn her out of his land. And despite their claims of racial superiority, religious exceptionalism, and entitled grievance, accompanied by threats of rebellion against a government that attacks their heritage and takes their stuff, the couple claimed they are not racist and the Klan is not a hate group.

In that moment, I remembered that Dred Scott is more than precedent. It is the anti-gospel of slavery, echoed anew by this Klansman, as an effort to tell Ms. Calderón (and all of us who can imagine her situation) to keep our place or be ready to burn. My own anger welled up, and my sadness too because that Klansman’s words reminded me of the times I had been called “n**ger” by white people, or told during an internship that “deliveries were around back,” or called “Big boy” by a white senior partner in front of my peers. Watching this Klan couple’s loathing reminded me that their hearts are full of twisted grievance and their minds are the heirs of the racial hierarchy enforced by Dred Scott.

To calm myself after the video ended, I had to let silence overcome the room. As far as I could tell, the students felt some mix of anger, pity, and shock. After this pause, I explained in both legal and moral terms that the structures of racism and the ideology of white supremacy cannot be thought of in isolation. The anti-gospel of the Klan and the words of Chief Justice Tawney must be thought of as parts of a whole.

Indeed, to read Dred Scott is to read a blueprint for structural racism. American citizenship is defined to exclude all black people. Slaves are a property that can be treated with near impunity. People of color do not belong in the American political community. A black person was “so far inferior that they had no rights which the white man was bound to respect.” These are the lessons of Dred Scott, which followed through on the seeds sown in the Constitution of 1789, and which took amendment and 160 years of activism, struggle, and needless death to reverse.

And though the law has changed, the reversal is incomplete. This era—these times we live in now—echo that evil. The boundaries of personhood continue to be drawn to exclude not only race, but also gender and sexual orientation. The borders of the political community are being redrawn to wall off children who live up to the egalitarian American creed but have imperfect immigration status. The Klan and Nazis march with the impunity offered through mealy-mouthed accommodation from the White House. The structures of mass incarceration, disenfranchisement, and police brutality were built according to the same blueprint of white supremacy as Dred Scott, yet there are those who defend these still-functional monuments to slavery and Jim Crow as “law and order.”

Dred Scott and its ideological and doctrinal progeny are still with us. As much as we have moved away from being an apartheid state, as much as we have asserted through the Constitution and laws that we believe in equality, there are those of us who, by their torches, their twisted ideologies, and their policies seek to bring us back to that time. Their fire and fury—both cultural and legal—still try to burn out equality in the name of nativism and racial superiority. This is the era in which we live.

Trump, the Meme of Voter Fraud, and the Risk to American Democracy

To claim that our elections are rigged by saying without proof that rightful votes are illegitimate is to harken back to the racist, sexist vicious voter narrative.

Despite losing the popular election by somewhere around two million votes, Donald Trump nonetheless won the Electoral College. He is the President-Elect. Yet, in a tweet storm yesterday that was the opposite of being presidential, Trump claimed that if one deducts the votes of millions who voted illegally, he did not lose the popular vote. He even went on to announce real voter fraud in Virginia, New Hampshire, and California (with no evidence).

What Trump has done repeatedly is to use the meme of voter fraud to impugn elections and voters in this country. His rhetoric is Internet trolling at its best, but the consequence may be to once again distort policy, endanger political minorities, and imperil democracy.

In an article called The Meme of Voter Fraud, I define a meme is an idea or narrative that replicates and evolves without regard for its truthfulness. A meme appeals and spreads because it empowers the believer. It takes on the appearance of truth but it doesn’t need to be true to replicate. And as it fits the worldview of those who become invested in it, it galvanizes extreme responses in line with the meme—not the truth—and that runs the risk of leading people to endanger rights.

Like many before him, Trump’s tweet storm relies on the fallacious belief that elections remain under threat because of a mass (invisible, unproven) conspiracy of unworthy voters. Some scholars and policy makers have argued for over a decade (one example here) that this threat is real and present (despite the absence of evidence) to justify stricter regulations for voting. This claim has supported strict voter identification laws, the curtailment of early voting, and proof of citizenship laws.

During the campaign Trump used the meme of voter fraud to suggest his supporters should engage in voter intimidation, violence, and subversion of the rule of law. Recall that Trump claimed that fraud by millions of wrongful voters would thwart his candidacy. Both he and now Vice President-elect Mike Pence called for their supporters to monitor polls and challenge voters they suspect. And in that final debate, apparently because of his belief that the election was going to be rigged, Trump said he would keep us in suspense about whether he would accept the result of this election. His claim of yesterday closed the loop on this campaign-long narrative.

To claim a conspiracy of massive voter fraud, especially after one actually won the election, is preposterous. One famous recent study shows that credible in-person voter impersonation has happened only 31 times out of one billion votes cast this century. And professional election scholars agree that a vast voter fraud conspiracy to overthrow a national election a myth.

Trump’s narrative is in apparent response to the recount efforts spearheaded by the Green Party and their candidate Jill Stein. The Green Party is initiating recounts in key battleground states because of claims made by some experts of discrepancies between the electronic vote count and the paper vote count. And while some point out that any such recount would be pointless, others argue that thousands of Trump votes were padded, though neither the Clinton campaign nor the White House have claimed that there has been evidence of mass voter-caused voter fraud.

But Trump’s voter fraud argument does something far more dangerous than trigger a (likely needless) recount. It seeks to rig our thinking about democracy. Because a meme persuades through appeal and not logic, makes facts completely irrelevant when the story is too good. This doesn’t matter much with cat videos, but Mr. Trump’s rigged election meme are dangerous because they detach us from facts as our basis for making real-world decisions.

To believe that millions of certain voters are illegitimate simply because someone says so is to trade in an ideology of exclusion. America did this for the majority of its history with the effect of excluding women, African Americans, and naturalized immigrants in favor of property-holding white men. Court decisions, constitutional amendments, and the Voting Rights Act of 1965 democratized voting and made clear that just because of one’s identity, one was not a fraudulent voter.

To make that rigged election claim today is harken back to this racist, sexist vicious voter narrative. We saw this in Trump’s claims for voter vigilantes, in his claim of ready defiance to the election results, and now in his lie that he’s more of a winner than he actually is.

If history teaches us anything, it is that his rhetoric will serve as excuse to vilify the people he deems his enemies and the institutions designed to serve all the people. This rhetoric will continue to paint a target on his political opponents generally (since apparently all the alleged illegitimate votes were cast by his opponents). The rhetoric will reinforce the racist, sexist ideology of exclusion, thus compounding the doubt minority voters and other who have suffered historical disenfranchisement suffer.

His claim of voter fraud in the millions also suggests that election structures that validate and tabulate our elections have no legitimacy. This suggests that thousands of election officers across this country either were duped or were in on the scheme. And this rhetoric demeans the already-imperiled Voting Rights Act and other laws that make our elections democratic. Why support the VRA and other inclusivity promoting measures if they allegedly lead to polluted election results?

These are the consequences of this baseless rhetoric.

To make specious allegations of fraud undermines the legitimacy of our political institutions and, ironically, the legitimacy of Trump’s own election. It tears down the political system purely to pursue apparent pettiness. And like any meme, this rigged election rhetoric seeks detaches us from facts and enables those who wish to resort to racialized and gendered violence to exclude the “vicious voter.” This is not—and should not be—the American way.

Election Law Open Class November 9, 2016: Post-Election Discussion

The following video is from my Election Law and Policy class meeting on November 9, 2016. I opened the class to an extended question and answer session to address the aftermath of the presidential election. It was open to the community at the West Virginia University College of Law and to my social media networks. To date, it has received nearly 1,000 views.

The discussion covered topics including the pros and cons of the Electoral College, the challenges the political system continues to face after this election, and the possibilities and limits of the rule of law in the Trump era. Probably the highlight of this discussion is the discussion between two of my students – a white male and a African American female – about her feelings of racial threat in this “era of Trump” and his view that the rule of law will be sufficient to protect her and other minorities.

The discussion is provocative, informative, and a useful tool for reflecting on the election. And to the extent you found this discussion useful, please let me know, and let me know whether you’d like more live chats and/or podcasts facilitated by me to have more conversations in this new political era.