Discourse that allows us to express a wide range of ideas, opinions, and analysis that can be used as an opportunity to critically examine and observe what our experience means to us beyond the given social/cultural contexts and norms that are provided us.
Passed by the Senate on June 8, 1866, and ratified two years later, on July 9, 1868, the Fourteenth Amendment
granted citizenship to all persons "born or naturalized in the United
States," including formerly enslaved people, and provided all citizens
with “equal protection under the laws,” extending the provisions of the
Bill of Rights to the states. The amendment authorized the government to
punish states that abridged citizens’ right to vote by proportionally
reducing their representation in Congress. It banned those who “engaged
in insurrection” against the United States from holding any civil,
military, or elected office without the approval of two-thirds of the
House and Senate. It forbids states from denying rights to any person and is a foundational document for civil rights.The amendment prohibited former Confederate states
from repaying war debts and compensating former slave owners for the
emancipation of their enslaved people. Finally, it granted Congress the
power to enforce this amendment, a provision that led to the passage of
other landmark legislation in the 20th century, including the Civil Rights Act of 1964,
and the Voting Rights Act of 1965. Congress required former Confederate
states to ratify the Fourteenth Amendment as a condition of regaining
federal representation.
The legendary Sherrilyn Ifill On the Meaning and Value of the 14th amendment and what it challenges us all to do today:
In this first episode of our series, “Democracy, Under Construction,” Sherrilyn Ifill joins host Alex Lovit to discuss the Second Founding, when the Reconstruction Amendments—and in particular the 14th Amendment—fundamentally changed American rights and who was defined as American. Birthright citizenship, protections from abuses by state governments, and equality before the law all entered the Constitution following the ratification of the 14th Amendment in 1868. The “Democracy, Under Construction” series commemorates America’s 250th anniversary by focusing on the moments when our country became a more inclusive democracy and celebrating the historical figures who pushed the country to live up to its ideals.
ABOUT THE LECTURER:
Sherrilyn Ifill is among the most accomplished civil rights lawyers in the United States. She is the Vernon Jordan Distinguished Professor in Civil Rights at Howard University School of Law and the founding director of the 14th Amendment Center for Law and Democracy. She previously served as the president and director-counsel of the NAACP Legal Defense and Educational Fund.
https://www.thehistorymakers.org/biography/sherrilyn-ifill BIOGRAPHY Nonprofit director and law professor Sherrilyn Ifill was born on December 17, 1962 in New York, New York. Ifill graduated from Vassar College in 1984 with her B.A. degree in English, and went on to receive her J.D. degree from New York University School of Law in 1987. From 1987 to 1988, Ifill served as a senior fellow with New York’s American Civil Liberties Union office. She then worked as assistant counsel for the NAACP Legal Defense and Education Fund from 1988 to 1993. While there, Ifill litigated the landmark case of Houston Lawyers’ Association v. Attorney General of Texas in 1991 which declared that the second article of the Voting Rights Act covered judicial elections. In 1993, Ifill accepted a faculty position as professor of law at the University of Maryland Francis King Carey School of Law, focusing on civil procedure and constitutional law. She also co-founded one of the first legal clinics in the nation dedicated to eliminating the legal barriers placed on recently released criminal offenders looking to re-enter society. Her book On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-first Century was published in 2007. In 2012, Ifill was chosen as President and Director-Counsel for the NAACP Legal Defense and Educational Fund. In this role, she led the litigation proceedings for Shelby County v. Holder in 2013 and Fisher v. University of Texas Austin in 2016. Ifill is the recipient of numerous awards including the Award for Professional Excellence from Harvard Law School’s Center on the Legal Profession and the M. Shanara Gilbert Human Rights Award from the Society of American Law Teachers. She served as the commencement speaker in 2015 for both Bard University and her alma mater, New York University where she was also awarded honorary doctorate degrees. A frequent guest and contributor on CNN, NBC, ABC, C-Span, National Public Radio, Ifill served on the boards of Equal Justice Works, the National Constitution Center, the Learning Policy Institute, the National Women’s Law Center as well as board chair of U.S. Programs for the Open Society from 2011-2013. Ifill and her husband have three children.
The Cruelty Is the Point: The Past, Present, and Future of Trump's America by Adam Serwer. One World, 2021
All,
The always great Adam Serwer is one of the five—count ‘em! FIVE-- best political journalists in this country today (the other four are Jane Mayer, Elie Mystal, Ta-Nehisi Coates, and Nikole Hannah-Jones)—no arguments please. Like the others named here Serwer never fails to tell us exactly what he thinks, why he thinks so, what his actual coverage says and means both to him as well as oithers, and most importantly what his actual intellectually, ethically, and politically honest position is—whether other people “agree” or “disagree” with him and his position or not. This is the real nexus of intelligence, tenacious research skills, outstanding writing ability, brilliant insight, hard earned KNOWLEDGE, and genuine intellectual and ideological independence that makes for great journalism and truly reliable and inspiring journalists.
Thank you Adam as always for knowing and understanding what the truth is and having the forthright courage and intense desire to share with us exactly what you think that truth actually means…
Kofi
"It is untenable for Democratic leaders to demand black voters rescue the party every election cycle because their fundamental rights are on the line, and then do little to secure those rights once they are in power.”
PHOTO: Justice Samuel Alito. Doug Mills / The New York Times / Redux
About the author:Adam Serwer is a staff writer at The Atlantic, where he covers politics.
Last month, Justice Samuel Alito insisted that the Supreme Court’s critics are wrong. The Court is not “a dangerous cabal” that is “deciding important issues in a novel, secretive, improper way, in the middle of the night, hidden from public view,” he said. Reading aloud from a piece I wrote in the aftermath of the Court’s recent ruling on an abortion law, Alito insisted that it was “false and inflammatory” to say that the 1973 Roe v. Wade decision had been nullified in Texas.
Alito’s speech perfectly encapsulated the new imperious attitude of the Court’s right-wing majority, which wants to act politically without being seen as political, and expects the public to silently acquiesce to its every directive without scrutiny, criticism, or protest. (As if oblivious to the irony, Alito’s office set ground rules barring media outlets from transcribing or broadcasting in full the speech at the University of Notre Dame, in which he delivered his complaint.)
Last month, that conservative majority allowed Texas’s most recent restrictions on abortion to go into effect. Without exceptions for rape and incest, the Texas law bars abortions after six weeks, before most women know they are pregnant, and deputizes citizens to sue those who “enable” abortions after that period for a $10,000 bounty. At midnight on the day after the law took effect, the Republican appointees on the Court, except for Chief Justice John Roberts, insisted that a procedural scheme adopted by anti-abortion activists for the precise purpose of avoiding judicial review had tied their hands.
This success by anti-abortion activists, who nullified a constitutional right merely by outsourcing its enforcement to private citizens, naturally drew scrutiny. The Court’s ruling appeared on its “shadow docket,” the emergency orders that the Court issues outside the regular process of review with limited briefing and without oral arguments—and thus without the typical degree of attention from the public or the justices themselves. In his speech, Alito said there was “absolutely nothing new about emergency applications,” and complained of “all the media and political talk about our sinister shadow docket.”
But no one actually disputes the necessity of emergency orders. In the piece Alito quoted, I noted that “there are some circumstances in which the Court needs to act quickly to prevent some imminent or irreversible harm. There’s nothing inherently sinister about that.” The term shadow docket was coined by a former Roberts clerk six years ago; it is not an invention of Alito’s Lügenpresse. The negative connotations it has more recently assumed are entirely a product of the Court’s selective use of the mechanism to make sweeping decisions and deliver rapid victories to right-wing causes.
The Supreme Court is making greater use of emergency orders in that it is issuing them more frequently, in more significant and lasting ways, and with outcomes that favor the right. This is not a matter of opinion; it is statistical fact. It is also an argument raised by the other justices on the Court in their dissents to the Texas decision. Alito’s Trumplike broadside against the media, in other words, was also a means of mocking his own colleagues, while insisting that the Court is not partisan and that the justices are not political. He can do this, I would add, because the 6–3 conservative majority on the Court means he is unlikely to ever need their votes.
Alito’s complaint about my description of the substance of the Court’s ruling was just as meritless as his grousing about my description of the process by which it was delivered. The practical effect of the Supreme Court’s September decision was to deny Texans the right to decide when to end a pregnancy, and many—those who can afford it—are going out of state for treatment. Anti-abortion activists are so delighted with the law’s impact that they are trying to dissuade people from suing under the law, because that might subject it to substantive review by the courts more swiftly. The whole idea of the law was to prevent women in Texas from being able to obtain abortions for as long as possible. It would be wrong to say that Roe has been overturned, but it is beyond dispute to say that its protections are no longer in effect in Texas. In a word, it has been nullified.
The reporters who cover the Supreme Court are a hierarchical bunch, as anyone who has had to sit in the fourth row of the press area, straining to see or hear the proceedings, will tell you. They are decorous and proper and deferential to the justices. The longtime SCOTUS reporters for outlets such as The New York Times and The Washington Post did not even link to my piece that Alito was mischaracterizing so that their readers could make their own judgments; His Honor’s word would do. And yet here is the Times:
He addressed the recent decisions in unusual detail, rejecting, for instance, what he said was the “false and inflammatory claim that we nullified Roe v. Wade” in early September by allowing a Texas law that bans most abortions after six weeks to come into effect.
“We did no such thing, and we said so expressly in our order,” he said, quoting from it. Indeed, the majority in the 5-to-4 ruling said it based its decision on procedural grounds and did not address the constitutionality of the Texas law.
The effect of the ruling, however, has been to deny abortions to most women in Texas. In dissent, Justice Elena Kagan wrote that the majority’s unsigned order “illustrates just how far the court’s ‘shadow docket’ decisions may depart from the usual principles of appellate process.”
This is the closest a Supreme Court reporter for a major outlet gets to saying, “Although the justice insisted the liquid was rain, chemical analysis shows the composition to be identical to urine.” Few if any reports saw the decisions as affirming the constitutionality of the Texas law, but many observers surmised that the majority was happy to leave it in place for now, because it does not think women should have the constitutional right to decide whether to carry a pregnancy to term, and therefore does not consider circumstances in Texas to be a matter of significant concern.
It is entirely possible that Texas’s law will be struck down while other Roe-defying restrictions on abortion are affirmed—many opponents of abortion find the Texas law objectionable because of its structure. But that would not change the circumstances in Texas at this precise moment, where Roe’s guarantees no longer apply.
Indeed, on October 6, the federal judge Robert Pitman briefly blocked the Texas law—before the conservative Fifth Circuit stayed his ruling. “From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution,” Pitman wrote in his 113-page opinion. “That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.” How dangerous. How inflammatory. How obvious.
Alito might simply have focused, in his speech, on the procedural issues that the majority hid behind in its Texas opinion—but this wasn’t enough. He wanted to act like a GOP-primary candidate and wag his finger at the press, and he did so with a level of dishonesty and obfuscation you might expect from a politician. I have had more honest interlocutors on Twitter, people whose handles were puns on bodily secretions. Alito’s claims were below the level of what you would find in a Facebook thread from an anti-vax group. It is a style of argument that belongs at a Thanksgiving dinner with exasperated blood relatives in New Jersey.
The rank dishonesty and arrogance of Alito’s speech at Notre Dame are symptoms of the conservative majority’s unchecked power on the Court, and the entitlement that flows from having no one around you who can tell you what you sound like. It is not simply enough for the right-wing justices to have this power; Alito insists that the peasantry be silent about how they use it, and acquiesce not only to their delusions of impartiality but to their mischaracterization of verifiable facts. These are imperious demands for submission from someone who is meant to be a public servant.
I understand the value of pursuing impartiality as a judge—there is a similar case made in journalism for pursuing objectivity. Even if humans are incapable of being impartial or objective, the thinking goes, they should try. But it is one thing to pursue impartiality or objectivity in good faith, and another to use those concepts in the defense of ideologically motivated conclusions. Alito’s approach to the law, and to criticism of the Court, is an example of the latter.
During his speech, Alito quipped that “journalists may think we can dash off an opinion the way they dash off articles.”
On the contrary. Journalists have to do their own work. I don’t have a hand-picked team of law clerks to do the heavy lifting for me, and I am not shielded from my own errors of fact and judgment by a lifetime appointment. If Alito wants the public to see the Court as apolitical, he should try meeting that standard, instead of lecturing others for not blinding themselves to the obvious.
ABOUT THE AUTHOR:
Adam Serwer is a staff writer at The Atlantic, where he covers politics.
“...At the core of the idea of American democracy is a promise of civic equality, initially extended just to a chosen few. The key political conflicts of American history have been over expanding that promise. The “white genocide” or “Great Replacement” conspiracy theory rests on the ideological principle that certain people should be excluded from that promise, or that extending it to them would constitute a form of bondage for those to whom the promise was originally kept. Because the threat of the interlopers—whether religious, racial, or ethnic—is existential, it justifies violence, in the form of murder, disenfranchisement, or dispossession. The ideology of the Great Replacement is a particular threat to democratic governance because it insists that entire categories of human beings can or should be excluded from democratic rights and protections. Any political cause can theoretically inspire terrorism, but this one is unlike others in that what it demands of its targets is their non-existence.
In 1916, the American immigration restrictionist Madison Grant published The Passing of the Great Race, which argued that immigration was destroying America’s traditional “Anglo-Saxon” population and along with it the tradition of self-governance. Grant’s ideas were popular and influential. They provided the impetus for racist immigration laws passed in the 1920s, which sought to limit not only African and Asian immigration but also that of Eastern and Southern Europeans, who were deemed genetically inferior to their Northern European counterparts. Adolf Hitler cited these racist laws as an inspiration, but some ascendant nativist intellectuals on the right now commonly refer to their repeal as a great catastrophe.
There are two versions of the “replacement” conspiracy theory, but both of them share the same basic premise. The first version is the idea that a secret cabal (typically one that is composed of Jews) is fostering demographic change in the United States through immigration in order to replace its white population—the motive of mass murderers in Pittsburgh, El Paso, and now Buffalo. The second is that liberals are fostering demographic change in the United States through immigration in order to replace its white population. Both conceive of America as fundamentally white and Christian, and in so doing posit not only a racial conception of citizenship but a racial hierarchy, one that must be maintained if America’s true nature is to endure. That these theories are now embraced by the descendants of some of the very European immigrants whom Grant considered racially inferior might have shocked him, but that just shows how arbitrary and socially determined such categories are…"
—Adam Serwer, "Conservatives Are Defending a Sanitized Version of ‘The Great Replacement’”, The Atlantic. May 18, 2022
The Fight Over the 1619 Project Is Not About the Facts
A dispute between a small group of scholars and the authors of The New York Times Magazine’s issue on slavery represents a fundamental disagreement over the trajectory of American society.
Staff writer at The Atlantic He is an American journalist and author. He is a staff writer at The Atlantic where his work focuses on politics, race, and justice. He previously worked at BuzzFeed News, The American Prospect, and Mother Jones.
Bettmann / Getty
This article was updated on December 23, 2019
When The New York Times Magazine published its 1619 Project in August, people lined up on the street in New York City to get copies. Since then, the project—a historical analysis of how slavery shaped American political, social, and economic institutions—has spawned a podcast, a high-school curriculum, and an upcoming book. For Nikole Hannah-Jones, the reporter who conceived of the project, the response has been deeply gratifying.
“They had not seen this type of demand for a print product of The New York Times, they said, since 2008, when people wanted copies of Obama's historic presidency edition,” Hannah-Jones told me. “I know when I talk to people, they have said that they feel like they are understanding the architecture of their country in a way that they had not.”
U.S. history is often taught and popularly understood through the eyes of its great men, who are seen as either heroic or tragic figures in a global struggle for human freedom. The 1619 Project, named for the date of the first arrival of Africans on American soil, sought to place “the consequences of slavery and the contributions of black Americans at the very center of our national narrative.” Viewed from the perspective of those historically denied the rights enumerated in America’s founding documents, the story of the country’s great men necessarily looks very different.
The reaction to the project was not universally enthusiastic. Several weeks ago, the Princeton historian Sean Wilentz, who had criticized the 1619 Project’s “cynicism” in a lecture in November, began quietly circulating a letter objecting to the project, and some of Hannah-Jones’s work in particular. The letter acquired four signatories—James McPherson, Gordon Wood, Victoria Bynum, and James Oakes, all leading scholars in their field. They sent their letter to three top Times editors and the publisher, A. G. Sulzberger, on December 4. A version of that letter was published on Friday, along with a detailed rebuttal from Jake Silverstein, the editor of the Times Magazine.
The letter sent to the Times says, “We applaud all efforts to address the foundational centrality of slavery and racism to our history,” but then veers into harsh criticism of the 1619 Project. The letter refers to “matters of verifiable fact” that “cannot be described as interpretation or ‘framing’” and says the project reflected “a displacement of historical understanding by ideology.” Wilentz and his fellow signatories didn’t just dispute the Times Magazine’s interpretation of past events, but demanded corrections.
In the age of social-media invective, a strongly worded letter might not seem particularly significant. But given the stature of the historians involved, the letter is a serious challenge to the credibility of the 1619 Project, which has drawn its share not just of admirers but also critics.
Nevertheless, some historians who declined to sign the letter wondered whether the letter was intended less to resolve factual disputes than to discredit laymen who had challenged an interpretation of American national identity that is cherished by liberals and conservatives alike.
“I think had any of the scholars who signed the letter contacted me or contacted the Times with concerns [before sending the letter], we would've taken those concerns very seriously,” Hannah-Jones said. “And instead there was kind of a campaign to kind of get people to sign on to a letter that was attempting really to discredit the entire project without having had a conversation.”
Underlying each of the disagreements in the letter is not just a matter of historical fact but a conflict about whether Americans, from the Founders to the present day, are committed to the ideals they claim to revere. And while some of the critiques can be answered with historical fact, others are questions of interpretation grounded in perspective and experience.
In fact, the harshness of the Wilentz letter may obscure the extent to which its authors and the creators of the 1619 Project share a broad historical vision. Both sides agree, as many of the project’s right-wing critics do not, that slavery’s legacy still shapes American life—an argument that is less radical than it may appear at first glance. If you think anti-black racism still shapes American society, then you are in agreement with the thrust of the 1619 Project, though not necessarily with all of its individual arguments.
The clash between the Times authors and their historian critics represents a fundamental disagreement over the trajectory of American society. Was America founded as a slavocracy, and are current racial inequities the natural outgrowth of that? Or was America conceived in liberty, a nation haltingly redeeming itself through its founding principles? These are not simple questions to answer, because the nation’s pro-slavery and anti-slavery tendencies are so closely intertwined.
The letter is rooted in a vision of American history as a slow, uncertain march toward a more perfect union. The 1619 Project, and Hannah-Jones’s introductory essay in particular, offer a darker vision of the nation, in which Americans have made less progress than they think, and in which black people continue to struggle indefinitely for rights they may never fully realize. Inherent in that vision is a kind of pessimism, not about black struggle but about the sincerity and viability of white anti-racism. It is a harsh verdict, and one of the reasons the 1619 Project has provoked pointed criticism alongside praise.
Americans need to believe that, as Martin Luther King Jr. said, the arc of history bends toward justice. And they are rarely kind to those who question whether it does.
Most Americans still learn very little about the lives of the enslaved, or how the struggle over slavery shaped a young nation. Last year, the Southern Poverty Law Center found that few American high-school students know that slavery was the cause of the Civil War, that the Constitution protected slavery without explicitly mentioning it, or that ending slavery required a constitutional amendment.
“The biggest obstacle to teaching slavery effectively in America is the deep, abiding American need to conceive of and understand our history as ‘progress,’ as the story of a people and a nation that always sought the improvement of mankind, the advancement of liberty and justice, the broadening of pursuits of happiness for all,” the Yale historian David Blight wrote in the introduction to the report. “While there are many real threads to this story—about immigration, about our creeds and ideologies, and about race and emancipation and civil rights, there is also the broad, untidy underside.”
In conjunction with the Pulitzer Center, the Times has produced educational materials based on the 1619 Project for students—one of the reasons Wilentz told me he and his colleagues wrote the letter. But the materials are intended to enhance traditional curricula, not replace them. “I think that there is a misunderstanding that this curriculum is meant to replace all of U.S. history,” Silverstein told me. “It's being used as supplementary material for teaching American history." Given the state of American education on slavery, some kind of adjustment is sorely needed.
Published 400 years after the first Africans were brought to in Virginia, the project asked readers to consider “what it would mean to regard 1619 as our nation’s birth year.” The special issue of the Times Magazine included essays from the Princeton historian Kevin Kruse, who argued that sprawl in Atlanta is a consequence of segregation and white flight; the Times columnist Jamelle Bouie, who posited that American countermajoritarianism was shaped by pro-slavery politicians seeking to preserve the peculiar institution; and the journalist Linda Villarosa, who traced racist stereotypes about higher pain tolerance in black people from the 18th century to the present day. The articles that drew the most attention and criticism, though, were Hannah-Jones’s introductory essay chronicling black Americans’ struggle to “make democracy real” and the sociologist Matthew Desmond’s essay linking the crueler aspects of American capitalism to the labor practices that arose under slavery.
The letter’s signatories recognize the problem the Times aimed to remedy, Wilentz told me. “Each of us, all of us, think that the idea of the 1619 Project is fantastic. I mean, it's just urgently needed. The idea of bringing to light not only scholarship but all sorts of things that have to do with the centrality of slavery and of racism to American history is a wonderful idea,” he said. In a subsequent interview, he said, “Far from an attempt to discredit the 1619 Project, our letter is intended to help it.”
The letter disputes a passage in Hannah-Jones’s introductory essay, which lauds the contributions of black people to making America a full democracy and says that “one of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery” as abolitionist sentiment began rising in Britain.
This argument is explosive. From abolition to the civil-rights movement, activists have reached back to the rhetoric and documents of the founding era to present their claims to equal citizenship as consonant with the American tradition. The Wilentz letter contends that the 1619 Project’s argument concedes too much to slavery’s defenders, likening it to South Carolina Senator John C. Calhoun’s assertion that “there is not a word of truth” in the Declaration of Independence’s famous phrase that “all men are created equal.” Where Wilentz and his colleagues see the rising anti-slavery movement in the colonies and its influence on the Revolution as a radical break from millennia in which human slavery was accepted around the world, Hannah-Jones’ essay outlines how the ideology of white supremacy that sustained slavery still endures today.
“To teach children that the American Revolution was fought in part to secure slavery would be giving a fundamental misunderstanding not only of what the American Revolution was all about but what America stood for and has stood for since the Founding,” Wilentz told me. Anti-slavery ideology was a “very new thing in the world in the 18th century,” he said, and “there was more anti-slavery activity in the colonies than in Britain.”
Hannah-Jones hasn’t budged from her conviction that slavery helped fuel the Revolution. “I do still back up that claim,” she told me last week—before Silverstein’s rebuttal was published—although she says she phrased it too strongly in her essay, in a way that might mislead readers into thinking that support for slavery was universal. “I think someone reading that would assume that this was the case: all 13 colonies and most people involved. And I accept that criticism, for sure.” She said that as the 1619 Project is expanded into a history curriculum and published in book form, the text will be changed to make sure claims are properly contextualized.
On this question, the critics of the 1619 Project are on firm ground. Although some southern slave owners likely were fighting the British to preserve slavery, as Silverstein writes in his rebuttal, the Revolution was kindled in New England, where prewar anti-slavery sentiment was strongest. Early patriots like James Otis, John Adams, and Thomas Paine were opposed to slavery, and the Revolution helped fuel abolitionism in the North.
Historians who are in neither Wilentz’s camp nor the 1619 Project’s say both have a point. “I do not agree that the American Revolution was just a slaveholders' rebellion,” Manisha Sinha, a history professor at the University of Connecticut and the author of The Slave's Cause: A History of Abolition, told me.* “But also understand that the original Constitution did give some ironclad protections to slavery without mentioning it.”
The most radical thread in the 1619 Project is not its contention that slavery’s legacy continues to shape American institutions; it’s the authors’ pessimism that a majority of white people will abandon racism and work with black Americans toward a more perfect union. Every essay tracing racial injustice from slavery to the present day speaks to the endurance of racial caste. And it is this profound pessimism about white America that many of the 1619 Project’s critics find most galling.
Newt Gingrich called the 1619 Project a “lie,” arguing that “there were several hundred thousand white Americans who died in the Civil War in order to free the slaves." In City Journal, the historian Allen Guelzo dismissed the Times Magazine project as a “conspiracy theory” developed from the “chair of ultimate cultural privilege in America, because in no human society has an enslaved people suddenly found itself vaulted into positions of such privilege, and with the consent—even the approbation—of those who were once the enslavers.” The conservative pundit Erick Erickson went so far as to accuse the Times of adopting “the Neo-Confederate world view” that the “South actually won the Civil War by weaving itself into the fabric of post war society so it can then discredit the entire American enterprise.” Erickson’s bizarre sleight of hand turns the 1619 Project’s criticism of ongoing racial injustice into a brief for white supremacy.
The project’s pessimism has drawn criticism from the left as well as the right. Hannah-Jones’s contention that “anti-black racism runs in the very DNA of this country” drew a rebuke from James Oakes, one of the Wilentz letter’s signatories. In an interview with the World Socialist Web Site, Oakes said, “The function of those tropes is to deny change over time … The worst thing about it is that it leads to political paralysis. It’s always been here. There’s nothing we can do to get out of it. If it’s the DNA, there’s nothing you can do. What do you do? Alter your DNA?”
These are objections not to misstatements of historical fact, but to the argument that anti-black racism is a more intractable problem than most Americans are willing to admit. A major theme of the 1619 Project is that the progress that has been made has been fragile and reversible—and has been achieved in spite of the nation’s true founding principles, which are not the lofty ideals few Americans genuinely believe in. Chances are, what you think of the 1619 Project depends on whether you believe someone might reasonably come to such a despairing conclusion—whether you agree with it or not.
Wilentz reached out to a larger group of historians, but ultimately sent a letter signed by five historians who had publicly criticized the 1619 Project in interviews with the World Socialist Web Site. He told me that the idea of trying to rally a larger group was “misconceived,” citing the holiday season and the end of the semester, among other factors. (A different letter written by Wilentz, calling for the impeachment of President Donald Trump, quickly amassed hundreds of signatures last week.) The refusal of other historians to sign on, despite their misgivings about some claims made by the 1619 Project, speaks to a divide over whether the letter was focused on correcting specific factual inaccuracies or aimed at discrediting the project more broadly.
Sinha saw an early version of the letter that was circulated among a larger group of historians. But, despite her disagreement with some of the assertions in the 1619 Project, she said she wouldn’t have signed it if she had been asked to. “There are legitimate critiques that one can engage in discussion with, but for them to just kind of dismiss the entire project in that manner, I thought, was really unwise,” she said. “It was a worthy thing to actually shine a light on a subject that the average person on the street doesn't know much about.”
Although the letter writers deny that their objections are merely matters of “interpretation or ‘framing,’” the question of whether black Americans have fought their freedom struggles “largely alone,” as Hannah-Jones put it in her essay, is subject to vigorous debate. Viewed through the lens of major historical events—from anti-slavery Quakers organizing boycotts of goods produced through slave labor, to abolitionists springing fugitive slaves from prison, to union workers massing at the March on Washington—the struggle for black freedom has been an interracial struggle. Frederick Douglass had William Garrison; W. E. B. Du Bois had Moorfield Storey; Martin Luther King Jr. had Stanley Levison.
“The fight for black freedom is a universal fight; it's a fight for everyone. In the end, it affected the fight for women's rights—everything. That's the glory of it,” Wilentz told me. “To minimize that in any way is, I think, bad for understanding the radical tradition in America.”
But looking back to the long stretches of night before the light of dawn broke—the centuries of slavery and the century of Jim Crow that followed—“largely alone” seems more than defensible. Douglass had Garrison, but the onetime Maryland slave had to go north to find him. The millions who continued to labor in bondage until 1865 struggled, survived, and resisted far from the welcoming arms of northern abolitionists.
“I think one would be very hard-pressed to look at the factual record from 1619 to the present of the black freedom movement and come away with any conclusion other than that most of the time, black people did not have a lot of allies in that movement,” Hannah-Jones told me. “It is not saying that black people only fought alone. It is saying that most of the time we did.”
Nell Irvin Painter, a professor emeritus of history at Princeton who was asked to sign the letter, had objected to the 1619 Project’s portrayal of the arrival of African laborers in 1619 as slaves. The 1619 Project was not history “as I would write it,” Painter told me. But she still declined to sign the Wilentz letter.
“I felt that if I signed on to that, I would be signing on to the white guy's attack of something that has given a lot of black journalists and writers a chance to speak up in a really big way. So I support the 1619 Project as kind of a cultural event,” Painter said. “For Sean and his colleagues, true history is how they would write it. And I feel like he was asking me to choose sides, and my side is 1619's side, not his side, in a world in which there are only those two sides.”
This was a recurrent theme among historians I spoke with who had seen the letter but declined to sign it. While they may have agreed with some of the factual objections in the letter or had other reservations of their own, several told me they thought the letter was an unnecessary escalation.
“The tone to me rather suggested a deep-seated concern about the project. And by that I mean the version of history the project offered. The deep-seated concern is that placing the enslavement of black people and white supremacy at the forefront of a project somehow diminishes American history,” Thavolia Glymph, a history professor at Duke who was asked to sign the letter, told me. “Maybe some of their factual criticisms are correct. But they've set a tone that makes it hard to deal with that.”
“I don't think they think they're trying to discredit the project,” Painter said. “They think they're trying to fix the project, the way that only they know how.”
Historical interpretations are often contested, and those debates often reflect the perspective of the participants. To this day, the pro-Confederate “Lost Cause” intepretation of history shapes the mistaken perception that slavery was not the catalyst for the Civil War. For decades, a group of white historians known as the Dunning School, after the Columbia University historian William Archibald Dunning, portrayed Reconstruction as a tragic period of, in his words, the “scandalous misrule of the carpet-baggers and negroes,” brought on by the misguided enfranchisement of black men. As the historian Eric Foner has written, the Dunning School and its interpretation of Reconstruction helped provide moral and historical cover for the Jim Crow system.
In Black Reconstruction in America, W. E. B. Du Bois challenged the consensus of “white historians” who “ascribed the faults and failures of Reconstruction to Negro ignorance and corruption,” and offered what is now considered a more reliable account of the era as an imperfect but noble effort to build a multiracial democracy in the South.
To Wilentz, the failures of earlier scholarship don’t illustrate the danger of a monochromatic group of historians writing about the American past, but rather the risk that ideologues can hijack the narrative. “[It was] when the southern racists took over the historical profession that things changed, and W. E. B. Du Bois fought a very, very courageous fight against all of that,” Wilentz told me. The Dunning School, he said, was “not a white point of view; it’s a southern, racist point of view.”
In the letter, Wilentz portrays the authors of the 1619 Project as ideologues as well. He implies—apparently based on a combative but ambiguous exchange between Hannah-Jones and the writer Wesley Yang on Twitter—that she had discounted objections raised by “white historians” since publication.
Hannah-Jones told me she was misinterpreted. “I rely heavily on the scholarship of historians no matter what race, and I would never discount the work of any historian because that person is white or any other race,” she told me. “I did respond to someone who was saying white scholars were afraid, and I think my point was that history is not objective. And that people who write history are not simply objective arbiters of facts, and that white scholars are no more objective than any other scholars, and that they can object to the framing and we can object to their framing as well.”
When I asked Wilentz about Hannah-Jones’s clarification, he was dismissive. “Fact and objectivity are the foundation of both honest journalism and honest history. And so to dismiss it, to say, ‘No, I'm not really talking about whites’—well, she did, and then she takes it back in those tweets and then says it's about the inability of anybody to write objective history. That's objectionable too,” Wilentz told me.
Both Du Bois and the Dunning School saw themselves as having reached the truth by objective means. But as a target of the Dunning School’s ideology, Du Bois understood the motives and blind spots of Dunning School scholars far better than they themselves did.
“We shall never have a science of history until we have in our colleges men who regard the truth as more important than the defense of the white race,” Du Bois wrote, “and who will not deliberately encourage students to gather thesis material in order to support a prejudice or buttress a lie.”
The problem, as Du Bois argued, is that much of American history has been written by scholars offering ideological claims in place of rigorous historical analysis. But which claims are ideological, and which ones are objective, is not always easy to discern.
“...What Kilpatrick wanted, and what the Roberts Court is making possible, is a country where white people can maintain their political dominance at the expense of Americans who are not white. The anticaste provisions of the Reconstruction amendments, intended by their authors to reverse the “horrid blasphemy” that America was a white man’s country, are being inverted to defend that dominance. This is not the color-blindness of Martin Luther King Jr., but what the scholar Ian Haney López has called “reactionary colorblindness,” the purpose of which is to maintain racial hierarchy through superficially neutral means. It takes the view that the Constitution’s “color-blindness” renders any attempt to remedy anti-Black racism unconstitutional, because by definition that would involve making racial distinctions. Similarly, the ruling in this case does not explicitly overturn the VRA’s ban on racial discrimination in voting so much as rewrite it to allow such discrimination.
In 2022, Louisiana lawmakers passed a redistricting plan that limited Black voters to a single congressional district out of six (“packing” them into a majority district and “cracking” the remaining Black population into other districts to limit their influence). These practices go back to Reconstruction, when Black men first won the vote and white-supremacist Democrats sought to limit or annihilate their political influence. Civil-rights organizations sued Louisiana over the map and won on the basis that it violated the VRA’s requirement to ensure that minority voters have equal opportunity to elect a candidate of their choosing. Louisiana was ordered to create a new Black-majority district, which it did. But then Louisiana was sued again, this time by a group arguing that the new map was unconstitutional because it sorted voters by race. This is the case that went before the U.S. Supreme Court.
In his opinion, Alito argued that “social change has occurred throughout the country and particularly in the South,” suggesting that racial discrimination is a thing of the past. (This ignores plenty of contemporary evidence to the contrary—including the fact that the president who appointed half of the Callais majority has called Somali immigrants “garbage.”) Since the Roberts Court began dismantling the VRA with 2013’s Shelby County v. Holderruling, the racial turnout gap has increased.
It is true that—thanks in large part to the protections that the Roberts Court is carefully dismantling—Americans experience less overt discrimination than they once did. But the obvious flaw in Alito’s logic was revealed when he defended the gerrymander as partisan and not racial by pointing out that most Black people support Democrats, “because race and politics are so intertwined.”
In other words: Discriminating against Black voters is okay because they vote for Democrats. Many Democrats in the 19th century, when Black people overwhelmingly voted Republican, would have enthusiastically agreed with Alito’s assessment. But if you apply Alito’s logic to those white-supremacist Democrats, they weren’t racist either. They just, you know, wanted to win elections or something, and Black people were in the way. The fact that discriminating against Black voters would give Republicans an advantage today is not exculpatory; it only establishes a motive for discrimination.
Drawing a different map that did not disenfranchise Black voters, as a lower court had ordered, would itself be an “unconstitutional racial gerrymander,” Alito concluded. Trying to disenfranchise Black voters isn’t racist; preventing Louisiana from disenfranchising Black voters is racist.
Erring in perception is one thing. But this ruling ignores the will of Congress, which in its 1982 reauthorization of the Voting Rights Act stated that voting provisions that had the purpose or effect of discriminating against minority voters were illegal. Alito seemed to contradict this entirely when he wrote that the VRA “imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race.”
Congress expressly banned rules and policies that had discriminatory effects, not just those that were explicitly discriminatory in intent, because of a Supreme Court ruling in a 1980 case, City of Mobile v. Bolden, which revealed that the VRA was allowing officials to get away with discriminating as long as they were careful about doing so. John Roberts, then a young lawyer in the Reagan Justice Department, opposed the change, arguing that it would provide a basis for “the most intrusive interference imaginable”—by which he meant the government’s ability to interfere with racial discrimination, not racial discrimination itself.
In her dissent in Callais, Justice Elena Kagan referred back to that case, arguing that the VRA was supposed to be the “corrective” to superficially race-neutral devices that in effect “prevented Black citizens from casting ballots or ensured that their votes would count for next to nothing.” When the Court construed the law “too narrowly—insisting that a person suing under Section 2 had to prove discriminatory intent—Congress amended the law so that it turned solely on discriminatory effects.”
Congress had specifically wanted to close the loophole that the Roberts Court has now pried back open to destroy the VRA almost entirely. The decision does not simply turn the clock back to 1980. It’s worse than that: Many Republican lawmakers may interpret the decision as permission to limit the voting power of troublesome minority voters. For all Alito’s moralizing about the risk of the VRA being “cynically used as a tool for advancing a partisan end,” that is exactly what he and the other five right-wing justices are doing. Shortly after the ruling, Trump’s former campaign manager Brad Parscale crowed on X that “if states are aggressive, we could see a healthy majority in the House perpetually.”
…What we can expect in the aftermath of this ruling is for more Republican-controlled states to implement discriminatory maps and call them partisan so they can pass legal muster. In practical terms, this will likely mean fewer nonwhite representatives in Congress. Diminishing the power of minority voters may also allow the Republican Party to continue on its path from reactionary color-blindness to more overt racism, safe in the assumption that it will not have to answer to constituents who oppose such racism because they are its targets. There is little risk in attacking people who lack the power to remove you from office.
Alito wrote of the VRA being “perverted” for partisan purposes, but I can’t think of a greater perversion of the VRA than concluding that it is acceptable for white people to try to disenfranchise Black voters for political advantage. It defeats the entire purpose for which the VRA was adopted, which was to end the deliberate and systematic disenfranchisement of Black people then prevalent throughout the United States, and to prevent such racial discrimination from ever occurring against anyone.
The Roberts Court is creating a world in which the federal government does not interfere with the right of white Americans to dominate those they see as their lessers; as Kilpatrick once observed, that is the “whole basis” of their cramped vision of liberty. They can call this color-blindness all they like, but we can see what it really is.”
–Adam Serwer, “Voters Can Be Disenfranchised Now, Just say it’s because they’re Democrats.”, The Atlantic, April 29, 2026
For the conservative editor and columnist James Jackson Kilpatrick, the Supreme Court decision outlawing school segregation was an atrocity. Brown v. Board of Education, he wrote in the 1950s, was a “revolutionary act by a judicial junta which simply seized power.” He warned in 1963 that the passage of the 1964 Civil Rights Act would destroy “the whole basis of individual liberty.” And in a 1965 National Review cover story, he argued that in order to “give the Negro the vote,” the Voting Rights Act would repeal the Constitution.
Kilpatrick did not hide the basis of his beliefs: In an article that was spiked after the 1963 Birmingham Baptist Church bombing, titled “The Hell He Is Equal,” he insisted that “the Negro race, as a race, is in fact an inferior race.”
As the historian Nancy MacLean wrote in Freedom Is Not Enough, by the 1970s, this segregationist had refashioned himself as an opponent of racial discrimination, a champion of color-blindness. Liberal egalitarians supporting race-conscious remedies, he argued, were “worse racists—much worse racists—than the old Southern bigots.” His transformation was so complete, he joked, that he was like the convert who “became more Catholic than the Pope.”
In fact, Kilpatrick’s conversion was no conversion at all. To understand it is to understand the Roberts Court’s decision today in Louisiana v. Callais. The decision purports to uphold Section 2 of the Voting Rights Act, which prohibits racial discrimination in voting, but effectively nullifies it, ruling that a Louisiana redistricting map that created two majority-Black districts out of six, in a state whose population is one-third Black, was an “unconstitutional racial gerrymander.” The majority opinion uses procedural language to obscure what its rewriting of the VRA will allow lawmakers to do: engage in racial discrimination in drawing political districts as long as they say they are doing so for a partisan purpose rather than a racist one—as if the results would not be identical.
In states with large Black populations that remain under Republican control—half of the Black American population resides in the South—lawmakers will now be able to draw districts that dilute Black residents’ voting power. In his opinion for the right-wing majority, Justice Samuel Alito wrote that “in considering the constitutionality of a districting scheme, courts must treat partisan advantage like any other race-neutral aim: a constitutionally permissible criterion that States may rely on as desired.” The Court’s decision is consonant with the philosophy, articulated by Kilpatrick in his earlier days, that the state is oppressive when it interferes with the right to discriminate, and respects liberty when it allows discrimination. And the decision fits just as well with Kilpatrick’s later spin on that philosophy: Attempts to ban racial discrimination are themselves discriminatory—against white people.
What Kilpatrick wanted, and what the Roberts Court is making possible, is a country where white people can maintain their political dominance at the expense of Americans who are not white. The anticaste provisions of the Reconstruction amendments, intended by their authors to reverse the “horrid blasphemy” that America was a white man’s country, are being inverted to defend that dominance. This is not the color-blindness of Martin Luther King Jr., but what the scholar Ian Haney López has called “reactionary colorblindness,” the purpose of which is to maintain racial hierarchy through superficially neutral means. It takes the view that the Constitution’s “color-blindness” renders any attempt to remedy anti-Black racism unconstitutional, because by definition that would involve making racial distinctions. Similarly, the ruling in this case does not explicitly overturn the VRA’s ban on racial discrimination in voting so much as rewrite it to allow such discrimination.
In 2022, Louisiana lawmakers passed a redistricting plan that limited Black voters to a single congressional district out of six (“packing” them into a majority district and “cracking” the remaining Black population into other districts to limit their influence). These practices go back to Reconstruction, when Black men first won the vote and white-supremacist Democrats sought to limit or annihilate their political influence. Civil-rights organizations sued Louisiana over the map and won on the basis that it violated the VRA’s requirement to ensure that minority voters have equal opportunity to elect a candidate of their choosing. Louisiana was ordered to create a new Black-majority district, which it did. But then Louisiana was sued again, this time by a group arguing that the new map was unconstitutional because it sorted voters by race. This is the case that went before the U.S. Supreme Court.
In his opinion, Alito argued that “social change has occurred throughout the country and particularly in the South,” suggesting that racial discrimination is a thing of the past. (This ignores plenty of contemporary evidence to the contrary—including the fact that the president who appointed half of the Callais majority has called Somali immigrants “garbage.”) Since the Roberts Court began dismantling the VRA with 2013’s Shelby County v. Holderruling, the racial turnout gap has increased.
It is true that—thanks in large part to the protections that the Roberts Court is carefully dismantling—Americans experience less overt discrimination than they once did. But the obvious flaw in Alito’s logic was revealed when he defended the gerrymander as partisan and not racial by pointing out that most Black people support Democrats, “because race and politics are so intertwined.”
In other words: Discriminating against Black voters is okay because they vote for Democrats. Many Democrats in the 19th century, when Black people overwhelmingly voted Republican, would have enthusiastically agreed with Alito’s assessment. But if you apply Alito’s logic to those white-supremacist Democrats, they weren’t racist either. They just, you know, wanted to win elections or something, and Black people were in the way. The fact that discriminating against Black voters would give Republicans an advantage today is not exculpatory; it only establishes a motive for discrimination.
Drawing a different map that did not disenfranchise Black voters, as a lower court had ordered, would itself be an “unconstitutional racial gerrymander,” Alito concluded. Trying to disenfranchise Black voters isn’t racist; preventing Louisiana from disenfranchising Black voters is racist.
Erring in perception is one thing. But this ruling ignores the will of Congress, which in its 1982 reauthorization of the Voting Rights Act stated that voting provisions that had the purpose or effect of discriminating against minority voters were illegal. Alito seemed to contradict this entirely when he wrote that the VRA “imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race.”
Congress expressly banned rules and policies that had discriminatory effects, not just those that were explicitly discriminatory in intent, because of a Supreme Court ruling in a 1980 case, City of Mobile v. Bolden, which revealed that the VRA was allowing officials to get away with discriminating as long as they were careful about doing so. John Roberts, then a young lawyer in the Reagan Justice Department, opposed the change, arguing that it would provide a basis for “the most intrusive interference imaginable”—by which he meant the government’s ability to interfere with racial discrimination, not racial discrimination itself.
In her dissent in Callais, Justice Elena Kagan referred back to that case, arguing that the VRA was supposed to be the “corrective” to superficially race-neutral devices that in effect “prevented Black citizens from casting ballots or ensured that their votes would count for next to nothing.” When the Court construed the law “too narrowly—insisting that a person suing under Section 2 had to prove discriminatory intent—Congress amended the law so that it turned solely on discriminatory effects.”
Congress had specifically wanted to close the loophole that the Roberts Court has now pried back open to destroy the VRA almost entirely. The decision does not simply turn the clock back to 1980. It’s worse than that: Many Republican lawmakers may interpret the decision as permission to limit the voting power of troublesome minority voters. For all Alito’s moralizing about the risk of the VRA being “cynically used as a tool for advancing a partisan end,” that is exactly what he and the other five right-wing justices are doing. Shortly after the ruling, Trump’s former campaign manager Brad Parscale crowed on X that “if states are aggressive, we could see a healthy majority in the House perpetually.”
Although Alito worked to hide the breadth of his own opinion, Justice Clarence Thomas was far more explicit in his concurrence. Thomas reiterated his view that the VRA’s districting provisions were “repugnant” to a “colorblind constitution.” An all-white Congress entering office on the success of “partisan” gerrymandering would not be anathema to this “colorblind” Constitution.
What we can expect in the aftermath of this ruling is for more Republican-controlled states to implement discriminatory maps and call them partisan so they can pass legal muster. In practical terms, this will likely mean fewer nonwhite representatives in Congress. Diminishing the power of minority voters may also allow the Republican Party to continue on its path from reactionary color-blindness to more overt racism, safe in the assumption that it will not have to answer to constituents who oppose such racism because they are its targets. There is little risk in attacking people who lack the power to remove you from office.
Alito wrote of the VRA being “perverted” for partisan purposes, but I can’t think of a greater perversion of the VRA than concluding that it is acceptable for white people to try to disenfranchise Black voters for political advantage. It defeats the entire purpose for which the VRA was adopted, which was to end the deliberate and systematic disenfranchisement of Black people then prevalent throughout the United States, and to prevent such racial discrimination from ever occurring against anyone.
The Roberts Court is creating a world in which the federal government does not interfere with the right of white Americans to dominate those they see as their lessers; as Kilpatrick once observed, that is the “whole basis” of their cramped vision of liberty. They can call this color-blindness all they like, but we can see what it really is. ABOUT THE AUTHOR:
To anyone who stupidly thinks even for a nanosecond that these virulently racist judicial tyrants masquerading as legal protectors of our constitutional rights cannot and will not blithely take away and destroy our rights as both citizens and human beings if we simply sit idly by and allow it to happen in this modern racist cesspool we call "civilization", I strongly advise you to guess again...
Remember Dred Scott and what happened not only to him but to far too many of his historical forebears and descendants (i.e. us)...Stay tuned, stay woke, and pass the word...
Kofi
THE PAST IS PROLOGUE:
Dred Scott v. Sanford case: The Supreme Court decision of 1857
Click here for the text of this major historical document:
Citation: Judgment in the U.S. Supreme Court Case Dred Scott v. John F. A. Sandford; 3/6/1857; Dred Scott, Plaintiff in Error, v. John F. A. Sandford; Appellate Jurisdiction Case Files, 1792 - 2010; Records of the Supreme Court of the United States, Record Group 267; National Archives Building, Washington, DC.
In March of 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. The court also declared the 1820 Missouri Compromise unconstitutional, thus permiting slavery in all of the country's territories.
The case before the court was that of Dred Scott v. Sanford. Dred Scott, a slave who had lived in the free state of Illinois and the free territory of Wisconsin before moving back to the slave state of Missouri, had appealed to the Supreme Court in hopes of being granted his freedom.
Taney -- a staunch supporter of slavery and intent on protecting southerners from northern aggression -- wrote in the Court's majority opinion that, because Scott was black, he was not a citizen and therefore had no right to sue. The framers of the Constitution, he wrote, believed that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it."
Referring to the language in the Declaration of Independence that includes the phrase, "all men are created equal," Taney reasoned that "it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration. . " Voting Rights Law Draws Skepticism From Justices
Voting Procedures: A lawyer for the NAACP Legal Defense and Educational Fund talks about arguing in favor of the Voting Rights Act at the Supreme Court.
by ADAM LIPTAK February 27, 2013 New York Times
WASHINGTON — A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court’s more conservative members.
Related:
Voting Act Challenge Hinges on a Formula (February 27, 2013) Statue of Rosa Parks Is Unveiled at the Capitol (February 28, 2013) Times Topic: Voting Rights Act (1965) Brief Supporting Same-Sex Marriage Gets More Republican Support (February 28, 2013)
Related in Opinion:
Charles M. Blow: Vulnerability of the Vote (February 28, 2013) Editorial: Congress’s Power to Protect the Vote (February 28, 2013)
Christopher Gregory/The New York Times. Representative Sheila Jackson Lee, Democrat of Texas, spoke at a rally outside the Supreme Court on Wednesday as the justices heard arguments over a central provision of the Voting Rights Act of 1965. The provision was challenged by Shelby County, Ala.
Christopher Gregory/The New York Times. Protesters gathered outside the Supreme Court on Wednesday.
Readers’ Comments:
"Ironic that this comes to the Supreme Court after the 2012 election, which witnessed the most aggressively racist voting laws and policies in certain states since the Civil Rights era."
--Look Ahead, WA
If the court overturns the provision, nine states, mostly in the South, would become free to change voting procedures without first getting permission from federal officials.
In a vivid argument in which the lawyers and justices drew varying lessons from the legacies of slavery, the Civil War and the civil rights movement, the court’s conservative wing suggested that the modern South had outgrown its troubled past and that the legal burdens on the nine states were no longer justified.
Chief Justice John G. Roberts Jr. asked skeptically whether “the citizens in the South are more racist than citizens in the North.” Justice Anthony M. Kennedy, whose vote is probably crucial, asked whether Alabama today is an “independent sovereign” or whether it must live “under the trusteeship of the United States government.”
Justice Antonin Scalia said the law, once a civil rights landmark, now amounted to a “perpetuation of racial entitlement.”
That remark created the sharpest exchange of the morning, with Justice Sonia Sotomayor on the other end. “Do you think that the right to vote is a racial entitlement?” she later asked a lawyer challenging the law, with an edge in her voice that left little doubt she was responding to Justice Scalia’s statement. “Do you think that racial discrimination in voting has ended, that there is none anywhere?”
The outcome of the case will most likely remain in doubt until the end of the court’s current term, in June. Many legal observers predicted that the justices would overturn part of the voting law in 2009, when the court had the same conservative-leaning majority, only to be proven wrong.
One important change, however, is that Chief Justice Roberts suggested in the 2009 ruling that Congress update its formula to determine which parts of the country should remain subject to the law. Congress has not done so.
The question at the heart of Wednesday’s argument was whether Congress, in reauthorizing the provision for 25 years in 2006, was entitled to use a formula based on historic practices and voting data from elections held decades ago.
Should the court strike down the law’s central provision, it would be easier for lawmakers in the nine states to enact the kind of laws Republicans in several states have recently advocated, including tighter identification standards. It would also give those states more flexibility to move polling places and redraw legislative districts.
The four members of the court’s liberal wing, citing data and history, argued that Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions. The law passed the Senate unanimously and House overwhelmingly, by a vote of 390 to 33 in 2006.
“It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.”
Justice Kennedy said that history taught a different lesson, referring to the reconstruction of Europe after World War II. “The Marshall Plan was very good, too,” he said. “But times change.”
Justice Breyer looked to a different conflict.
“What do you think the Civil War was about?” he asked. “Of course it was aimed at treating some states differently than others.” He also said that the nation lived through 200 years of slavery and 80 years of racial segregation.
Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, which joined the government in defending the law, echoed that point. “This statute is in part about our march through history to keep promises that our Constitution says for too long were unmet,” he said.
The law was challenged by Shelby County, Ala., which said that its federal preclearance requirement, in Section 5 of the law, had outlived its usefulness and that it imposed an unwarranted badge of shame on the affected jurisdictions.
The county’s lawyer, Bert W. Rein, said that “the problem to which the Voting Rights Act was addressed is solved.”
In any event, he added, the unusual requirement that a sovereign state’s law did not count until blessed by the federal government required substantial justification. The law, he said, was “an unusual remedy, never before and never after invoked by the Congress, putting states into a prior restraint in the exercise of their core sovereign functions.”
It was common ground among the advocates and justices that the act was important and necessary when it was first enacted.
“There is no question that the Voting Rights Act has done enormous good,” Justice Samuel A. Alito Jr. said. “It’s one of the most successful statutes that Congress passed in the 20th century and one could probably go farther than that.”
There was agreement, too, that the nation and the South in particular have taken great strides toward equality.
“There isn’t anybody on any side of this issue who doesn’t admit that huge progress has been made,” Justice Ruth Bader Ginsburg said.
Most of the argument instead concerned the formula for determining which states the law covered.
Chief Justice Roberts reeled off statistics to suggest that the coverage formula no longer made sense. Massachusetts, which is not covered, “has the worst ratio of white voter turnout to African-American voter turnout,” he said. Mississippi, which is covered, has the best ratio, he said, with African-American turnout exceeding that of whites.
The more liberal justices responded that the nine states were responsible for a sharply disproportionate share of federal voting-rights violations, adding that Alabama was in a poor position to challenge the choices Congress made in deciding which parts of the country to cover.
“Under any formula that Congress could devise,” Justice Elena Kagan said, citing data about voting rights suits, “it would capture Alabama.”
The point seemed to interest Justice Kennedy, in one of his few questions skeptical of the law’s challenger. “If you could be covered under most suggested formulas for this kind of statute,” he asked Mr. Rein, “why are you injured by this one?”
Should the court strike down the coverage formula when it decides the case, Shelby County v. Holder, No. 12-96, Congress would be free to take a fresh look at what jurisdictions should be covered. But Congress seems unlikely to be able to agree on a new set of criteria, given the current partisan divide, meaning the part of the law requiring federal pre-approval of election changes would effectively disappear.
Justice Kennedy asked whether it would be proper to make the entire country subject to the provision. Solicitor General Donald B. Verrilli Jr. said no, at least based on the information compiled by Congress in connection with the 2006 extension of the law.
Justice Kennedy seemed to view the response as a concession. “And that,” he said, “is because that there is a federalism interest in each state being responsible to ensure that it has a political system that acts in a democratic and a civil and a decent and a proper and a constitutional way.”
Congress has repeatedly extended the preclearance requirement: for 5 years in 1970, 7 years in 1975, and for 25 years in both 1982 and 2006.
But it made no changes after 1975 to the list of jurisdictions covered by Section 5, relying instead on a formula based on historical practices and voting data from elections held decades ago.
It applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states, including the boroughs of Brooklyn, Manhattan and the Bronx.
Congress Honors Rosa Parks While the Supreme Court Targets the Voting Rights Act by Ari Berman February 27, 2013 The Nation
President Johnson Signs the Voting Rights Act of 1965. In this photograph, taken by Yoichi R. Okamoto on August 6, 1965, President Lyndon B. Johnson signs the Voting Rights Act of 1965 in the President's Room of the Capitol building while Civil Rights leaders including Dr. Martin Luther King, Jr. look on. The Voting Rights Act was designed to the "enforce the 15th amendment" and remove the barriers that prevented African Americans from exercising their right to vote. The statue's provisions included: banning literacy tests, empowering the attorney general to investigate the unlawful use of poll taxes, and made the act of harassing, intimidating, threatening to prevent a lawfully registered voter from voting punishable by a fine of up $10,000, a five-year prison sentence or both. The legislation also allowed for the appointment of federal examiners with the ability to register qualified citizens to vote in jurisdictions where less than 50 percent of the voting age population was registered to vote. This legislation had a tremendous and immediate impact with over a quarter-million African Americans registered to vote by the end of 1965.
PHOTO: Credit Lyndon B. Johnson Presidential Library and Museum/NARA President Lyndon B. Johnson signs the Voting Rights Act at US Capitol alongside Martin Luther King Jr. and Rosa Parks. Photo: Yoichi R. Okamoto, courtesy Lyndon Baines Johnson Library and Museum
Photographer Yoichi R. Okamoto Date of Work August 6, 1965 Type Photograph
At 11 am, as Congress unveiled a statue honoring Rosa Parks, the civil rights leaders of today (Including Rep. John Lewis, who nearly died in Selma during "Bloody Sunday") were gathered inside the Supreme Court, listening to a challenge to the centerpiece of the Voting Rights Act. The stark contrast illustrated the profound contradictions of American democracy when it comes to race and political power—the progress we’ve made has always been met by equally intense efforts to roll back that progress. And that remains true today, especially on February 27, 2013.
“To honor Rosa Parks in the fullest manner, each of us must do our part to protect that which has been gained, defend the great documents upon which those gains were obtained and continue our pursuit of a more perfect union,” Congressman James Clyburn, who grew up in segregated South Carolina in the 1940s and ’50s, said at the statue unveiling. Parks herself was present when Lyndon Johnson signed the Voting Rights Act in the Capitol rotunda on August 6, 1965. Twelve years before famously refusing to move to the back of a segregated bus in Montgomery, Parks attempted to register to vote. She was denied three times, and had to pass a literacy test and pay a poll tax in 1945 just to exercise what should have been her fundamental right. That’s the way America was before the passage of the Voting Rights Act.
Inside the courtroom, five conservative Justices made the case for why Section 5 of the Voting Rights Act—which compels parts or all of sixteen states with a history of racial discrimination in voting to clear election-related changes with the federal government—is no longer necessary. (See my recent Nation article, “Why Are Conservative Trying to Destroy the Voting Rights Act?” for a definitive account of the Shelby County v. Holder case and the conservative organization and money behind the challenge.)
Section 5 is the most effective section of the most effective civil rights law ever passed by Congress and has been called the “keystone of our voting rights” by Attorney General Eric Holder. But to the conservative majority on the court, Section 5 is an antiquated infringement on state sovereignty, treating some states differently than others based on outdated data from the 1960s and ’70s. Justice Scalia mocked the entirety of the Voting Rights, calling congressional support for the legislation (which has been overwhelmingly reauthorized four times, most recently in 2006, and signed by four Republican presidents) a “perpetuation of racial entitlement.”
It quickly became clear inside the courtroom that there are four votes to uphold Section 5 and four votes to strike it down. Justice Kennedy, as is so often the case, appears to be the swing vote, although he certainly leaned toward the conservatives. Justice Kennedy seemed preoccupied by two questions: number one, does Section 5 still cover the states and localities where discrimination is most concentrated in order to justify its federalism constraints? And number two, are other parts of the Voting Rights Act, most notably Section 2, an adequate replacement for Section 5?
Section 2 applies nationwide, permanently, and puts the burden of proof on plaintiffs to show that a voting change is discriminatory after it has gone into effect, whereas Section 5 must be reauthorized by Congress and is targeted only at those with the worst history of voting discrimination, who must pre-clear any voting change with the Department of Justice or a federal court in DC. Section 2 has often been described as the “sword” to Section 5’s “shield.”
Solicitor General Donald Verrilli and NAACP Legal Defend Fund counsel Debo Adegbile did their best to assuage Kennedy’s concerns. Adegbile noted that jurisdictions covered by Section 5 accounted for a quarter of the US population but made up 81 percent of successful published and unpublished lawsuits that reached a favorable verdict for minority plaintiffs under Section 2, proving that discrimination remained localized in Section 5 states. Kennedy seemed unpersuaded:
JUSTICE KENNEDY: if Congress is going to single out separate States by name, it should do it by name. If not, it should use criteria that are relevant to the existing [problem] — and Congress just didn’t have the time or the energy to do this; it just reenacted it.
VERRILLI: I think it was rational and effective in 1965. The Court upheld it then, it upheld it three more times after that.
JUSTICE KENNEDY: Well, the Marshall Plan was very good, too, the Morale Act, the Northwest Ordinance, but times change.
VERRILLI: But the question is whether times had changed enough and whether the differential between the covered jurisdictions and the rest of the country had changed enough that Congress could confidently make the judgment that this was no longer needed.
Verrilli and Adegbile described Section 2 as a poor substitute for Section 5. As Kennedy himself noted in 2009, “Section 2 cases are very expensive. They are very long. They are very inefficient.” Section 2 lawsuits are incredibly complex, can take years to adjudicate and often cost millions of dollars, which few victims of voting discrimination can afford. Congress included Section 5 in the Voting Rights Act precisely because case-by-case litigation had failed to stop voting discrimination prior to 1965. “The reason Section 5 was created was because States were moving faster than litigation permitted to catch the new forms of discriminatory practices that were being developed,” said Justice Sotomayor. The genius of Section 5 was to “shift the advantage of time and inertia from the perpetrators of the evil to its victims,” Chief Justice Earl Warren wrote in the 1966 case South Carolina v. Katzenbach, the first of five unsuccessful challenges to Section 5.
In last year’s election cycle, the Justice Department under Section 5 opposed voter ID laws in Texas and South Carolina, early-voting cutbacks in Florida and redistricting maps in Texas. The federal courts in Washington sided with the DOJ in three of four cases, finding evidence of discriminatory effect and/or purpose, while also blocking South Carolina’s voter ID law for 2012. If Section 5 was gone and Section 2 was the only recourse, these major changes would’ve been in effect during the last election, and could only be challenged after years of costly and difficult litigation. The voters disenfranchised in the meantime would have no recourse, other than the hopes of a preliminary injunction from the courts, which is an increasingly rare prospect in a judiciary dominated by conservatives, especially in the South.
Amazingly, the voter suppression attempts that spread nationwide during the last election never came up during the oral arguments. The justices did not hear, for example, that six of the nine fully covered states under Section 5 passed new voting restrictions since 2010, including voter ID laws (Alabama, Mississippi, South Carolina, Texas and Virginia), limits on early voting (Georgia) and restrictions on voter registration (Alabama and Texas), compared to only one-third of noncovered jurisdictions during the same period. The insularity of the Supreme Court was particularly evident today. Opponents of Section 5 pointed to the fact that minority voter registration and turnout rates in places like Alabama are equal to or exceed states not covered by Section 5, but that hardly covers the scope of voting discrimination that exists in the South today.
CHIEF JUSTICE ROBERTS: General, is it the government’s submission that the citizens in the South are more racist than citizens in the North?
GENERAL VERRILLI: It is not, and I do not know the answer to that, Your Honor, but I do think it was reasonable for Congress—
CHIEF JUSTICE ROBERTS: Well, once you said it is not, and you don’t know the answer to it.
GENERAL VERRILLI: It’s not our submission. As an objective matter, I don’t know the answer to that question. But what I do know is that Congress had before it evidence that there was a continuing need based on Section 5 objections, based on the purpose-based character of those objections, based on the disparate Section 2 rate, based on the persistence of polarized voting, and based on a gigantic wealth of jurisdiction-specific and anecdotal evidence, that there was a continuing need.
CHIEF JUSTICE ROBERTS: A need to do what?
GENERAL VERRILLI: To maintain the deterrent and constraining effect of the Section 5 preclearance process in the covered jurisdictions
CHIEF JUSTICE ROBERTS: And not impose it on everyone else?
GENERAL VERRILLI: And—that’s right, given the differential in Section 2 litigation, there was a basis for Congress to do that.
One of the main tensions inside the courtroom was whether Congress or the Court gets to determine what is and isn’t valid under the Voting Rights Act. After all, the act has been overwhelmingly reauthorized four times by Congress, most recently in 2006. To Justice Scalia, that means it must be unconstitutional. “Even the name of it is wonderful: The Voting Rights Act,” Scalia said sarcastically. “Who is going to vote against that in the future?”
Yet both conservative and liberal members of Congress are urging the Court to respect both the original and recent findings of the legislative body. Notes an amicus brief filed by bipartisan members of Congress, including recent chairs of the House Judiciary Committee: “This Court has recognized that Congress acts at the height of its powers when it legislates to regulate the concerns at which the VRA is aimed: racial discrimination, infringement of fundamental rights, and elections. When Congress exercises its powers at the intersection of these three concerns—as it did here—this Court should defer to Congress’s considered judgment.”
Justice Kagan brought this up in an exchange with Shelby County’s lawyer, Bert Rein:
JUSTICE KAGAN: You said the problem [of voting discrimination in the South] has been solved. But who gets to make that judgment really? Is it you, is it the Court, or is it Congress?
MR. REIN: Well, it is certainly not me.
(Laughter.)
JUSTICE SCALIA: That’s a good answer. I was hoping you would say that.
MR. REIN: But I think the question is Congress can examine it, Congress makes a record; it is up to the Court to determine whether the problem indeed has been solved and whether the new problem, if there is one.
JUSTICE KAGAN: Well, that’s a big, new power that you are giving us, that we have the power now to decide whether racial discrimination has been solved? I did not think that that fell within our bailiwick.
It would be a truly radical step for the Court to dismiss the repeated and overwhelming judgment of Congress by striking down Section 5. The disappearance of Section 5 would be a devastating setback for voting rights—akin to the way the Citizens United decision eviscerated campaign finance regulation—and would greenlight the kind of voter suppression attempts that proved so unpopular in 2012.
It’s particularly ironic that Shelby County, Alabama, of all places, would bring this challenge to Section 5, given the recent history of discrimination in the county and state. Before local elections in 2008, the city of Calera redrew its city boundaries, eliminating the City Council’s lone majority-black district, represented by Ernest Montgomery since 2004. The city decreased the black voting-age population in Montgomery’s district from 71 percent to 30 percent by adding three overwhelmingly white subdivisions while failing to include a large surrounding black neighborhood. A day before the election, the Justice Department objected to the change. Calera could have preserved the majority-black district, the city’s demographer told Washington, but the City Council chose not to. Calera held the election in defiance of Justice Department orders, and Montgomery lost by two votes.
The Justice Department negated the election results and, after a year of negotiations, Calera moved from single-member districts to an at-large election system for the City Council. Montgomery was easily elected under the new system, winning the largest number of votes of any candidate, while his opponent from 2008 received the second-fewest. After the two elections, “I realized how important Section 5 is,” Montgomery said.
If it hadn’t been for Section 5, there would be no black members of the city council in Calera. “Assuming I accept your premise…that some portions of the South have changed, your county pretty much hasn’t,” Justice Sotomayor told Rein.
Mr. Montgomery and a large delegation of voting rights activists from Alabama attended the arguments. “Things have gotten a lot better and the reason it has gotten better is because of legislation like Section 5,” he told me after. “We definitely feel it’s still needed. We don’t claim the playing field has leveled. It’s leveling. Eventually maybe we’ll get to the point where Section 5 is not needed, but we’re not there yet.”
"I'm for truth, no matter who tells it. I'm for justice, no matter who it's for or against."
W.E.B. DuBois (1868-1963)
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Dr. Martin Luther King, Jr. (1929-1968)
"Change does not roll in on the wheels of inevitability, but comes through continuous struggle. And so we must straighten our backs and work for our freedom. A man can't ride you unless your back is bent. "
James Baldwin (1924-1987)
"Precisely at the point when you begin to develop a conscience you must find yourself at war with your society."
Aimé Césaire (1913-2008)
"A civilization that proves incapable of solving the problems it creates is a decadent civilization. A civilization that chooses to close its eyes to its most crucial problems is a stricken civilization. A civilization that uses its principles for trickery and deceit is a dying civilization."
Nina Simone (1933-2003)
"There's no other purpose, so far as I'm concerned, for us except to reflect the times, the situations around us and the things we're able to say through our art, the things that millions of people can't say. I think that's the function of an artist and, of course, those of us who are lucky leave a legacy so that when we're dead, we also live on. That's people like Billie Holiday and I hope that I will be that lucky, but meanwhile, the function, so far as I'm concerned, is to reflect the times, whatever that might be."
Amilcar Cabral (1924-1973)
"Always bear in mind that the people are not fighting for ideas, for the things in anyone's head. They are fighting to live better and in peace, to see their lives go forward, to guarantee the future of their children ....Hide nothing from the masses of our people. Tell no lies. Expose lies whenever they are told. Mask no difficulties, mistakes, failures. Claim no easy victories..." .
Angela Davis (b. 1944)
"The idea of freedom is inspiring. But what does it mean? If you are free in a political sense but have no food, what's that? The freedom to starve?”
Duke Ellington (1899-1974)
“Jazz is the freest musical expression we have yet seen. To me, then, jazz means simply freedom of musical speech! And it is precisely because of this freedom that so many varied forms of jazz exist. The important thing to remember, however, is that not one of these forms represents jazz by itself. Jazz simply means the freedom to have many forms.”
Amiri Baraka (1934-2014)
"Thought is more important than art. To revere art and have no understanding of the process that forces it into existence, is finally not even to understand what art is."
Frederick Douglass (1817-1895)
"Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or both. The limits of tyrants are prescribed by the endurance of those whom they oppress.” --August 3, 1857
Cecil Taylor (1929-2018)
“Musical categories don’t mean anything unless we talk about the actual specific acts that people go through to make music, how one speaks, dances, dresses, moves, thinks, makes love...all these things. We begin with a sound and then say, what is the function of that sound, what is determining the procedures of that sound? Then we can talk about how it motivates or regenerates itself, and that’s where we have tradition.”
Ella Baker (1903-1986)
"Strong people don't need strong leaders"
Paul Robeson (1898-1976)
"The artist must take sides. He must elect to fight for freedom or for slavery. I have made my choice. I had no alternative."
John Coltrane (1926-1967)
"I want to be a force for real good. In other words, I know there are bad forces. I know that there are forces out here that bring suffering to others and misery to the world, but I want to be the opposite force. I want to be the force which is truly for good."
Miles Davis (1926-1991)
"Jazz is the big brother of Revolution. Revolution follows it around."
C.L.R. James (1901-1989)
"All development takes place by means of self-movement, not organization by external forces. It is within the organism itself (i.e. within the society) that there must be realized new motives, new possibilities."
Frantz Fanon (1925-1961)
"Now, political education means opening minds, awakening them, and allowing the birth of their intelligence as [Aime] Cesaire said, it is 'to invent souls.' To educate the masses politically does not mean, cannot mean, making a political speech. What it means is to try, relentlessly and passionately, to teach the masses that everything depends on them."
Edward Said (1935-2003)
“I take criticism so seriously as to believe that, even in the midst of a battle in which one is unmistakably on one side against another, there should be criticism, because there must be critical consciousness if there are to be issues, problems, values, even lives to be fought for."
Antonio Gramsci (1891-1937)
“The challenge of modernity is to live without illusions and without becoming disillusioned. There must be pessimism of the intellect and optimism of the will.”
Susan Sontag (1933-2004)
"Do stuff. Be clenched, curious. Not waiting for inspiration’s shove or society’s kiss on your forehead. Pay attention. It’s all about paying attention. Attention is vitality. It connects you with others. It makes you eager. Stay eager."
Kofi Natambu, editor of The Panopticon Review, is a writer, poet, cultural critic, and political journalist whose poetry, essays, criticism, reviews, and journalism have appeared in many literary magazines, journals, newspapers, and anthologies. He is the author of a biography MALCOLM X: His Life & Work (Alpha Books) and two books of poetry: THE MELODY NEVER STOPS (Past Tents Press) and INTERVALS (Post Aesthetic Press). He was the founder and editor of SOLID GROUND: A NEW WORLD JOURNAL, a national quarterly magazine of the arts, culture, and politics and the editor of a literary anthology NOSTALGIA FOR THE PRESENT (Post Aesthetic Press). Natambu has read his work throughout the country and given many lectures and workshops at academic and arts institutions. He has taught American literature, literary theory and criticism, cultural history and criticism, film studies, political science, creative writing, philosophy, critical theory, and music history and criticism (Jazz, Blues, R&B, Hip Hop) at many universities and colleges. He was also a curator in the Education Department of Detroit’s Museum of African American History. Born in Detroit, Michigan, Natambu currently lives in Berkeley, California with his wife Chuleenan.
