Category Archives: Racial Equality

Madison, Bingham and the Crapshoot of History

There was a lecture at the McKinney School of Law yesterday about Jonathan Bingham, the most important constitutional figure you’ve probably never heard of. One of the professors has just written a biography of him–“American Founding Son: John Bingham and the Invention of the Fourteenth Amendment.”

I came across Bingham and the role he played in U.S. history a number of years ago, when I was researching a book of my own. He was a Republican Congressman from Ohio, a fervent believer in racial equality, who wrote the first and most famous passage of the 14th Amendment–the one forbidding states to deny “the privileges and immunities of citizenship” to their citizens, and requiring that they extend to those citizens the guarantees of due process and equal protection of the laws.

It was clear even from the brief research I did then that Bingham’s intent was to finish what Madison had tried but been unable to do–apply the entire Bill of Rights to state and local governments. (Originally, the Bill of Rights only restrained the federal government.) In the aftermath of the Civil War, he was able to get it done.

Or so he thought.

The Supreme Court declined to interpret the 14th Amendment as requiring complete and immediate”incorporation,” the weird term used by lawyers that means applying the Bill of Rights’ restrictions against government at all levels. The Court opted for “selective” incorporation–and only over a period of many years, as cases came before it, used the Amendment as a vehicle to ensure that  local government units respect the “fundamental liberties” protected by the Bill of Rights.

What too few Americans appreciate is the importance of the 14th Amendment to our current Constitutional system. Yale Constitutional scholar Akil Amar has called the post-civil rights period and the changes wrought by the 14th Amendment a second founding, and it does seem odd that even Americans who are quite familiar with the roles played by Jefferson, Madison, Franklin, Hamilton et al have never heard of Bingham, nor been taught about the profound effect of his Amendment.

Just goes to show, I guess. HIstory’s a crapshoot.

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Fifty Years Later

I’ve been mulling over the fifty-year anniversary of the March on Washington, and Martin Luther King’s “Dream” speech.

Unlike many–actually, most–of those providing commentary around this milestone, I didn’t read about the event in class or see television reports after the fact. I was twenty-one when the March occurred–the coverage I saw was contemporaneous, and a great deal of it was far from positive.

In Indiana, as elsewhere, a significant percentage of the population considered King an “agitator.” Even among people who genuinely wanted a more equal society, there were concerns that King’s approach was too “in your face,” and would end up making things even worse. Needless to say, there were plenty of people who were not just unconcerned with racial justice,  but who strongly believed that black people were inferior and needed to be kept “in their place,” and were outraged not just by the March on Washington, but by the entire civil rights movement.

So–fifty years later, where are we?

Are things better than they were when I was young? Absolutely. Are they where one might hope after fifty years? Not even close. Considerable racial animus persists, although its expression has (thankfully) changed.

Ironically, it was the election of an African-American President that brought long-buried racial resentments out from under the rocks that had obscured them. Perhaps progress is always like this: two steps forward, one back. Advance, then blowback. But Obama’s election unleashed a bitter undercurrent that surprised and disheartened many of us. The “birther” accusations, the racist emails, the hysterical opposition to everything the President does or says, the characterization of America’s Commander-in-Chief as a Muslim, a socialist, a Nazi….as “other.” I suppose it is a measure of progress that even the haters feel the need for euphemisms, and use these labels rather than the “n” word they so clearly mean.

I suppose it’s progress that they shrink from acknowledging even to themselves that their blind hatred is motivated by race.

Fifty years ago, in the midst of the social upheaval that we now simply call “the Sixties,” it would have been impossible to predict where social forces were taking the country. Despite the wrenching changes and excesses–and the enormous and often disproportionate reaction to those excesses–I would argue that the country emerged a fairer and more equal place. I  hope we can say the same thing about our current divisions fifty years from now.

Martin Luther King was certainly right about one thing: the arc of history does bend slowly.

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What Planet Do They Live On?

Yesterday, in a 5-4 decision, the Supreme Court effectively eviscerated the Voting Rights Act.

Without bothering to identify precisely what part of the constitution it violated, the Court invalidated Congress’ most recent identification, in Section 4, of the states subject to the operation of Section 5. Section 5 requires that the states so identified obtain prior approval of changes to their voting laws.

According to the majority decision, efforts to suppress minority voting are no longer a problem in the states subject to the act.  The current coverage system, according to Chief Justice Roberts, who wrote the majority opinion, is “based on 40-year-old facts having no logical relationship to the present day.”

Evidently,  the newspapers on whatever planet Roberts lives on haven’t covered the persistent and concerted efforts at vote suppression that have characterized the last two election cycles.

As the New York Times noted,

The decision will have immediate practical consequences. Texas announced shortly after the decision that a voter identification law that had been blocked would go into effect immediately, and that redistricting maps there would no longer need federal approval. Changes in voting procedures in the places that had been covered by the law, including ones concerning restrictions on early voting, will now be subject only to after-the-fact litigation.

In a saner age, the opinion would not be so devastating; it explicitly allows Congress to “update” the list of states subject to Section Five.

If we had a Congress rather than a partisan zoo, that might actually happen. As it is, however, remedial action is unlikely. When an aide to a Republican House member was asked when Congress might revisit the matter, he responded “Sometime after the Rapture.”

It’s going to get very ugly.

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Litmus Test

It has been instructive watching the various reactions to the Paula Deen tragicomedy.

On one hand are the folks–including a number of “known liberals”– who see the Food Network’s decision not to renew her show as an excess of “political correctness.” Others, of course, have been far more judgmental.

Most people have reacted without bothering to go beyond the superficial. Had Deen only admitted to using the “N” word a couple of times in the past, it might be legitimate to find the response disproportionate. However, the admission came in the context of a number of other behaviors; the lawsuit in which she gave the deposition alleges long-standing workplace bigotry, including requiring black and white workers in one of her restaurants to use separate restrooms. A story in the New York Times quotes Deen herself about taping a TV show in which she was going to make a hamburger she called a “Sambo” sandwich, but was overruled by the producer. She was also quoted justifying other behaviors by “explaining” that “most jokes” are about Jews, black and gays. (If the lawsuit allegations are accurate, all of these groups were objects of her workplace behaviors.)

Some people who defend Deen are simply unaware of this backstory. But for others, that defense clearly has a personal element. Many of the comments on Facebook and emails sent to Food Network display the very ugly and persistent underside of our multi-cultural society.

We have a very long way to go when it comes to race. And the election of an African-American President has just exacerbated that very jagged social wound.

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