THE SUPREME COURT nullification of federal law, on the pretense that they were given something they were not given, that power by the written words of the Constitution, HAS BEEN THE PRIMARY MEANS OF CONTINUING THE WORST OF INEQUALITY AS A MEANS OF PRIVILEGING THOSE IT WANTED TO PRIVILEGE.
As I noted, several times in the Government by Judiciary series of posts, the Roberts Court, likely the most corrupt in our history and certainly as corrupt as any, has done exactly the same thing that the 19th century Waite Court did in its notorious overturning of more than just the Voting Rights act of 1870 and the Civil Rights Act of 1875, in all it combined five different cases to establish what was, in all of the old Confederate states and in many other states and localities, an apartheid that persisted until the 1960s when it was all too briefly overturned by the Congress and President Johnson and those laws, supported largely but not nearly strongly enough, by the Warren and Berger Courts. Unfortunately, both of those courts made rulings that would give the enemies of equality, democracy and decency, even rationality the tools they needed to use media propaganda and political means to end that all too brief period by installing presidents and a Republican majority in the Congress and, with that, some of the worst Supreme Court "justices" since the period of Jim Crow. With that the Renquist Court through acts such as its outrageous election interference in 2000 and all during the Roberts Court, has plunged us into the period of Trumpism.
Looking for a speech condemning the "civil rights cases of 1883" (they should be called "the cases that established American apartheid") which I recalled Fredrick Douglass gave, I came across this very accurate and very brief description of those rulings and what it did to the Country by turning back the progress made toward fulfilling he promises made in the Declaration of Independence and the introductory section of the U.S. Constitution - something which, since it's the claimed intent of the framers in the whole thing, matters remarkably little in the deliberations of the self-proclaimed "textualists" and "originalists."
Following the progress of the Reconstruction amendments and the Civil Rights Acts of 1866 and 1875, the five Civil Rights Cases of 1883 — in which the Supreme Court held that the 13th and 14th Amendments did not empower Congress to outlaw racial discrimination by private individuals — were a step backwards in terms of justice and liberty.
Frederick Douglass
Public reaction to the Supreme Court’s decisions was immediate and widespread. Frederick Douglass spoke at length about his dissatisfaction with these decisions at a Civil Rights Mass-Meeting held at Lincoln Hall in Washington, D.C., on October 22, 1883. He detailed the painful history of slavery and oppression, and declared that the greatest threat to liberty were those in government who supported taking away the human rights of the formerly enslaved.
Douglass said, in part:
"Fellow-citizens! While slavery was the base line of American society, while it ruled the church and the state, while it was the interpreter of our law and the exponent of our religion, it admitted no quibbling, no narrow rules of legal or scriptural interpretations of Bible or Constitution. It sternly demanded its pound of flesh, no matter how much blood was shed in the taking of it. It was enough for it to be able to show the intention to get all it asked in the Courts or out of the Courts. But now slavery is abolished. Its reign was long, dark, and bloody. Liberty now, is the base line of the Republic. Liberty has supplanted slavery, but I fear it has not supplanted the spirit or power of slavery. Where slavery was strong, liberty is now weak.
O for a Supreme Court of the United States which shall be as true to the claims of humanity as the Supreme Court formerly was to the demands of slavery! When that day comes, as come it will, a Civil Rights Bill will not be declared unconstitutional and void, in utter and flagrant disregard of the objects and intentions of the National legislature by which it was enacted, and of the rights plainly secured by the Constitution.
This decision of the Supreme Court admits that the Fourteenth Amendment is a prohibition on the States. It admits that a State shall not abridge the privileges or immunities of citizens of the United States, but commits the seeming absurdity of allowing the people of a State to do what it prohibits the State itself from doing."
The Court’s decisions in the Civil Rights Cases of 1883 led to the widespread segregation of Black people in housing, employment, and public life, confining them to second-class citizenship in the United States until the passage of civil rights legislation in the 1960s.
I would argue that it did far more than that. Through segregation it furthered de facto enslavement of Black People in many sections of the country, it blessed racism and segregation and discrimination with the aura of sanctity that comes in the superstitious segment of the population (many of them with college degress, white collar professions and, especially, mid-brow scribblers) that replaces reverence for the Constitution, the founders and framers and, most nauseatingly of all, the U.S. Supreme Court. The Supreme Court blessed racism, segregation, discrimination and I will go farther and say, since it was flourishing in the time and under the conditions in which those laws were nullified, they supported lynching. One of the things they did that year was nullify the anti-Klan law explicitly in a federal case brought against those who lynched a Black Man. Their excuse was their reading of the 14th Amendment.*
Growing up during the Warren years, the brief period when the Court had members who were, to some extent, on the side of equality and democracy and decency and some measure of reason (as much as lawyers might be able to be supportive of it, in general) we were lulled into believing they and not the elected branches of the government were the reliable protectors, the court of last resort when all else failed.
THAT WAS DELUSIONAL AND BASED IN A GENERAL IGNORANCE OF THE ABSOLUTE FACT THAT THE SUPREME COURT HAS BEEN OUR LEAST EGALITARIAN, LEAST DEMOCRACY SUPPORTING, LEAST DECENCY MAINTAINING AND OFTEN ENTIRELY IRRATIONAL BRANCH OF THE GOVERNMENT.
That history is probably best demonstrated by the pro-slavery rulings of the Court (as I never tire of pointing out even one issued by an officially "anti-slavery" "justice" Joseph Story's Prigg decision), rulings issued by "justices" who held People in slavery, themselves, and who were enhancing their own fortunes and protecting them through their rulings. The nauseatingly deified John Marshall, one of the worst.
They've always done the equivalent in the period after the Civil War and on to today when the members of the Roberts Court rule in accord with the financial interests of themselves and their families and, most of all, the interests of keeping the party of the majority, the Republicans, in power.
Early in the series I quoted from an article that Louis Boudin wrote when the secretary of the lone Socialist who had been elected to Congress, Victor Berger, had published criticism of him on the basis of Boudin's skepticism of a proposed Constitutional amendment ending the Court's usurped power to nullify federal legislation - a power that is to be found NOWHERE in the Constitution.
In that passage Boudin notes the plain truth, that nullifying the Court's usurped power through Constitutional Amendment where it would have to pass through a Congress where a conservative majority would never let it pass - so useful to nullifying progress towards equality, democracy, etc. has been the Court's usurped power. And if it didn't die there it would almost certainly not get the super-majority of state legislatures to pass it into Constitutional law, even if it managed to get a majority of legislators supporting it, and largely for the same reason.
And, I'll add to that, given the demonstrable willingness of the Marbury acculturated members of the Court and lawyers in general to just lie about things, the Court would probably "interpret" such a duly adopted amendment, A PART OF THE WRITTEN CONSTITUTION, into effective nullification.
But the most important point of Boudin's response was that the reason that it was vitally important to rip that power away from the court was the use the Court has made of it, over and over again, to destroy any hard won progress towards equality, democracy, JUSTICE as it has done for its entire existence. The abolition struggle, the struggle for Womens' equality, the struggle for justice for workers, etc. all of that has continually been hampered and any hard won progress has been overturned by the Supreme Court through the nullification of laws. The Roberts Court repeating the nullification that the Waite Court committed in 1883 must be considered the last straw, if that power is not ripped from them once and for all by a Democratic president and Congress, it will never end and that progress will never be secure.
* Here is how Oyez briefly sums up the case, though I'd put what they did in less "objective" terms.
Harris led an armed lynch mob into a Tennessee jail and captured four black prisoners. Though the deputy sheriff attempted to protect the prisoners, he was unsuccessful. One of the prisoners died. The United States government brought criminal charges against Sheriff Harris and others under Section 2 of the Force Act of 1871. This act made it a crime for two or more persons to conspire for the purpose of depriving anyone of the equal protection of the laws.
Question Could the United States try Harris and others under the act?
Conclusion The Force Act was unconstitutional. The Fourteenth Amendment only authorized Congress to take remedial steps against state action that violated the amendment. The Amendment applied only to acts of the states, not to acts of individuals.
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