The Electoral College’s Racist Origins

Having been born in New York State and living there through high school, many in the South will never consider me a Southerner despite my maternal grandmother being a New Orleans belle. Nonetheless, I have lived in Virginia the majority of my life (I arrived not long after the Supreme Court's final ruling in Loving v. Virginia) and as a history major I am well aware of Virginia's conflicting legacy of on the one hand of having been the home of many of the Founding Fathers who espoused liberty and equality while on the other hand always time protecting white power/privilege and later serving as architect of the Jim Crow laws. A piece in The Atlantic by a legal scholar that I seemingly missed at the time looks at the Electoral College and how, when examined in the light of history, it has a racist origin originally aimed at maintaining the political power of southern slave holding states such as Virginia. As numerous posts on this blog have argued, the Electoral College needs to be eliminated. This article and the facts presented further bolster why that elimination needs to occur sooner as opposed to later. Here are article highlights: 

Is a color-blind political system possible under our Constitution? If it is, the Supreme Court’s evisceration of the Voting Rights Act in 2013 did little to help matters. While black people in America today are not experiencing 1950s levels of voter suppression, efforts to keep them and other citizens from participating in elections began within 24 hours of the [U.S. Supreme Court's] Shelby County v. Holder ruling and have only increased since then. 

In Shelby County’s oral argument, Justice Antonin Scalia cautioned, “Whenever a society adopts racial entitlements, it is very difficult to get them out through the normal political processes.” Ironically enough, there is some truth to an otherwise frighteningly numb claim. American elections have an acute history of racial entitlements—only they don’t privilege black Americans.

For centuries, white votes have gotten undue weight, as a result of innovations such as poll taxes and voter-ID laws and outright violence to discourage racial minorities from voting. (The point was obvious to anyone paying attention: As William F. Buckley argued in his essay “Why the South Must Prevail,” white Americans are “entitled to take such measures as are necessary to prevail, politically and culturally,” anywhere they are outnumbered because they are part of “the advanced race.”) But America’s institutions boosted white political power in less obvious ways, too, and the nation’s oldest structural racial entitlement program is one of its most consequential: the Electoral College.

 

Commentators today tend to downplay the extent to which race and slavery contributed to the Framers’ creation of the Electoral College, in effect whitewashing history: Of the considerations that factored into the Framers’ calculus, race and slavery were perhaps the foremost.

Of course, the Framers had a number of other reasons to engineer the Electoral College. Fearful that the president might fall victim to a host of civic vices—that he could become susceptible to corruption or cronyism, sow disunity, or exercise overreach—the men sought to constrain executive power consistent with constitutional principles such as federalism and checks and balances. The delegates to the Philadelphia convention had scant conception of the American presidency—the duties, powers, and limits of the office. But they did have a handful of ideas about the method for selecting the chief executive. When the idea of a popular vote was raised, they griped openly that it could result in too much democracy. With few objections, they quickly dispensed with the notion that the people might choose their leader.

But delegates from the slaveholding South had another rationale for opposing the direct election method, and they had no qualms about articulating it: Doing so would be to their disadvantage. Even James Madison, who professed a theoretical commitment to popular democracy, succumbed to the realities of the situation. The future president acknowledged that “the people at large was in his opinion the fittest” to select the chief executive. And yet, in the same breath, he captured the sentiment of the South in the most “diplomatic” terms:

There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections.

Behind Madison’s statement were the stark facts: The populations in the North and South were approximately equal, but roughly one-third of those living in the South were held in bondage. Because of its considerable, nonvoting slave population, that region would have less clout under a popular-vote system. The ultimate solution was an indirect method of choosing the president, one that could leverage the three-fifths compromise, the Faustian bargain they’d already made to determine how congressional seats would be apportioned. With about 93 percent of the country’s slaves toiling in just five southern states, that region was the undoubted beneficiary of the compromise, increasing the size of the South’s congressional delegation by 42 percent. When the time came to agree on a system for choosing the president, it was all too easy for the delegates to resort to the three-fifths compromise as the foundation. The peculiar system that emerged was the Electoral College.

 

Right from the get-go, the Electoral College has produced no shortage of lessons about the impact of racial entitlement in selecting the president. History buffs and Hamilton fans are aware that in its first major failure, the Electoral College produced a tie between Thomas Jefferson and his putative running mate, Aaron Burr. What’s less known about the election of 1800 is the way the Electoral College succeeded, which is to say that it operated as one might have expected, based on its embrace of the three-fifths compromise. The South’s baked-in advantages—the bonus electoral votes it received for maintaining slaves, all while not allowing those slaves to vote—made the difference in the election outcome. It gave the slaveholder Jefferson an edge over his opponent, the incumbent president and abolitionist John Adams. To quote Yale Law’s Akhil Reed Amar, the third president “metaphorically rode into the executive mansion on the backs of slaves.” That election continued an almost uninterrupted trend of southern slaveholders and their doughfaced sympathizers winning the White House that lasted until Abraham Lincoln’s victory in 1860.

 

In 1803, the Twelfth Amendment modified the Electoral College to prevent another Jefferson-Burr–type debacle. Six decades later, the Thirteenth Amendment outlawed slavery, thus ridding the South of its windfall electors. Nevertheless, the shoddy system continued to cleave the American democratic ideal along racial lines. In the 1876 presidential election, the Democrat Samuel Tilden won the popular vote, but some electoral votes were in dispute, including those in—wait for it—Florida. An ad hoc commission of lawmakers and Supreme Court justices was empaneled to resolve the matter. Ultimately, they awarded the contested electoral votes to Republican Rutherford B. Hayes, who had lost the popular vote. As a part of the agreement, known as the Compromise of 1877, the federal government removed the troops that were stationed in the South after the Civil War to maintain order and protect black voters.

The deal at once marked the end of the brief Reconstruction era, the redemption of the old South, and the birth of the Jim Crow regime. The decision to remove soldiers from the South led to the restoration of white supremacy in voting through the systematic disenfranchisement of black people, virtually accomplishing over the next eight decades what slavery had accomplished in the country’s first eight decades. And so the Electoral College’s misfire in 1876 helped ensure that Reconstruction would not remove the original stain of slavery so much as smear it onto the other parts of the Constitution’s fabric, and countenance the racialized patchwork democracy that endured until the passage of the Voting Rights Act of 1965.

What’s clear is that, more than two centuries after it was designed to empower southern whites, the Electoral College continues to do just that. The current system has a distinct, adverse impact on black voters, diluting their political power. Because the concentration of black people is highest in the South, their preferred presidential candidate is virtually assured to lose their home states’ electoral votes. Despite black voting patterns to the contrary, five of the six states whose populations are 25 percent or more black have been reliably red in recent presidential elections. Three of those states have not voted for a Democrat in more than four decades. Under the Electoral College, black votes are submerged. It’s the precise reason for the success of the southern strategy. It’s precisely how, as Buckley might say, the South has prevailed.

 

Among the Electoral College’s supporters, the favorite rationalization is that without the advantage, politicians might disregard a large swath of the country’s voters, particularly those in small or geographically inconvenient states. Even if the claim were true, it’s hardly conceivable that switching to a popular-vote system would lead candidates to ignore more voters than they do under the current one. Three-quarters of Americans live in states where most of the major parties’ presidential candidates do not campaign.

 

More important, this “voters will be ignored” rationale is morally indefensible. Awarding a numerical few voting “enhancements” to decide for the many amounts to a tyranny of the minority. 

 

Critics of the Electoral College are right to denounce it for handing victory to the loser of the popular vote twice in the past two decades. They are also correct to point out that it distorts our politics, including by encouraging presidential campaigns to concentrate their efforts in a few states that are not representative of the country at large. But the disempowerment of black voters needs to be added to that list of concerns, because it is core to what the Electoral College is and what it always has been.

The race-consciousness establishment—and retention—of the Electoral College has supported an entitlement program that our 21st-century democracy cannot justify. If people truly want ours to be a race-blind politics, they can start by plucking that strange, low-hanging fruit from the Constitution.

Why Republicans Fear Democracy

Over the last two decades, Republicans have increasingly resorted to dirty tricks ranging from voter ID laws to disenfranchise voters unlikely to support them to drawing computer gerrymandered districts to make it more difficult for Democrat candidates win - something Virginia certainly witnessed until the federal courts intervened.  Why resort to such tactics?  The answer is easy.  Increasingly, the majority of Americans reject what the GOP is peddling and, without cheating, Republicans fear they are destined to become a permanent minority party.  There simply are not enough racist and religiously extreme voters to assure the GOP's survival.  Thus, the efforts to thwart democracy and limit who can vote.  The only thing the GOP will not do is reject its toxic policies and evolve with the times and the changing demographics of the nation.  A column in the New York Times looks at the phenomenon.  Here are highlights:

The greatest threat to our democracy today is a Republican Party that plays dirty to win.

The party’s abandonment of fair play was showcased spectacularly in 2016, when the United States Senate refused to allow President Barack Obama to fill the Supreme Court vacancy created by Justice Antonin Scalia’s death in February. While technically constitutional, the act — in effect, stealing a court seat — hadn’t been tried since the 19th century. It would be bad enough on its own, but the Merrick Garland affair is part of a broader pattern.

Republicans across the country seem to have embraced an “any means necessary” strategy to preserve their power. After losing the governorship in North Carolina in 2016 and Wisconsin in 2018, Republicans used lame-duck legislative sessions to push through a flurry of bills stripping power from incoming Democratic governors. Last year, when the Pennsylvania Supreme Court struck down a Republican gerrymandering initiative, conservative legislators attempted to impeach the justices.

Constitutional hardball has accelerated under the Trump administration. President Trump’s declaration of a “national emergency” to divert public money toward a border wall — openly flouting Congress, which voted against building a wall — is a clear example. And the Supreme Court’s conservative majority, manufactured by an earlier act of hardball, may uphold the constitutionality of [Trump's] the president’s autocratic behavior.

Constitutional hardball can damage and even destroy a democracy. Democratic institutions function only when power is exercised with restraint. When parties abandon the spirit of the law and seek to win by any means necessary, politics often descends into institutional warfare.

As the collapse of democracy in Germany and Spain in the 1930s and Chile in the 1970s makes clear, these escalating conflicts can end in tragedy. Why is the Republican Party playing dirty? Republican leaders are not driven by an intrinsic or ideological contempt for democracy. They are driven by fear.

Democracy requires that parties know how to lose. Politicians who fail to win elections must be willing to accept defeat, go home, and get ready to play again the next day. This norm of gracious losing is essential to a healthy democracy.

But for parties to accept losing, two conditions must hold. First, they must feel secure that losing today will not bring ruinous consequences; and second, they must believe they have a reasonable chance of winning again in the future. When party leaders fear that they cannot win future elections, or that defeat poses an existential threat to themselves or their constituents, the stakes rise. . . . In short, desperation leads politicians to play dirty.

Take German conservatives before World War I. They were haunted by the prospect of extending equal voting rights to the working class. They viewed equal (male) suffrage as a menace not only to their own electoral prospects but also to the survival of the aristocratic order. . . . . So German conservatives played dirty, engaging in rampant election manipulation and outright repression in the late 19th and early 20th centuries.

In the United States, Southern Democrats reacted in a similar manner to the Reconstruction-era enfranchisement of African-Americans. Mandated by the 15th Amendment, which was ratified in 1870, black suffrage not only imperiled Southern Democrats’ political dominance but also challenged longstanding patterns of white supremacy. Since African-Americans represented a majority or near majority in many of the post-Confederate states, Southern Democrats viewed their enfranchisement as an existential threat. So they, too, played dirty.

Between 1885 and 1908, all 11 post-Confederate states passed laws establishing poll taxes, literacy tests, property and residency requirements and other measures aimed at stripping African-Americans of their voting rights . . . . These measures, building on a monstrous campaign of anti-black violence, did precisely what they were intended to do: Black turnout in the South fell to 2 percent in 1912 from 61 percent in 1880. Unwilling to lose, Southern Democrats stripped the right to vote from millions of people, ushering in nearly a century of authoritarian rule in the South.

Republicans appear to be in the grip of a similar panic today. Their medium-term electoral prospects are dim. For one, they remain an overwhelmingly white Christian party in an increasingly diverse society.

Republicans also face a generational challenge: Younger voters are deserting them. In 2018, 18- to 29-year-olds voted for Democrats by more than 2 to 1, and 30-somethings voted nearly 60 percent for Democrats.

Demography is not destiny, but as California Republicans have discovered, it often punishes parties that fail to adapt to changing societies. The growing diversity of the American electorate is making it harder for the Republican Party to win national majorities. Republicans have won the popular vote in presidential elections just once in the last 30 years.

The problem runs deeper than electoral math, however. Much of the Republican base views defeat as catastrophic. White Christians are losing more than an electoral majority; their once-dominant status in American society is eroding. . . . . Many rank-and-file Republicans believe that the country they grew up in is being taken away from them. Slogans like “take our country back” and “make America great again” reflect this sense of peril.

So like the old Southern Democrats, modern-day Republicans have responded to darkening electoral horizons and rank-and-file perceptions of existential threat with a win-at-any-cost mentality. Most reminiscent of the Jim Crow South are Republican efforts to tilt the electoral playing field. Since 2010, a dozen Republican-led states have adopted new laws making it more difficult to register or vote. Republican state and local governments have closed polling places in predominantly African-American neighborhoods, purged voter rolls and created new obstacles to registration and voting.

Although these abuses are certainly less egregious than those committed by post-bellum Southern Democrats, the underlying logic is similar: Parties representing fearful, declining majorities turn, in desperation, to minority rule.

The only way out of this situation is for the Republican Party to become more diverse. A stunning 90 percent of House Republicans are white men, even though white men are a third of the electorate. Only when Republicans can compete seriously for younger, urban and nonwhite voters will their fear of losing — and of a multiracial America — subside.

American democracy faces a Catch-22: Republicans won’t abandon their white identity bunker strategy until they lose, but at the same time that strategy has made them so averse to losing they are willing to bend the rules to avoid this fate. There is no easy exit.

Republican leaders must either stand up to their base and broaden their appeal or they must suffer an electoral thrashing so severe that they are compelled to do so. . . . Until Republicans learn to compete fairly in a diverse society, our democratic institutions will be imperiled.

Cindy Hyde-Smith's History of Embracing Racial Bigotry

The 2018 midterm elections in Virginia saw northern carpetbagger Corey Stewart run as a neo-Confederate candidate.  Thankfully, Tim Kaine crushed Stewart who lost by close to a 15% margin.  Virginia - at least in the urban areas - has moved beyond supporting Confederate values.  On Tuesday in Mississippi, a run off election for a Mississippi seat in the U.S. Senate will take place that pits a true believer in the Confederacy and Jim Crow laws against a black Democrat.  Despite a series of racist comments and actions, polls show GOP candidate Cindy Hyde-Smith leading her Democrat challenger by five points as of last Wednesday.  Mississippi is not Virginia - when I lived in Alabama years ago, we always were thankful for Mississippi because it was always worse than Alabama in pretty much every ranking - so the outcome of the election remains unclear.  What is clear is that Hyde-Smith (who has now been documented to have attended a segregationist "academy") embraces and represents the worst of Mississippi's past.  A piece in New York Magazine looks at the legacy that Hyde-Smith seemingly supports.  Here are excerpts:

Cindy Hyde-Smith took time during Tuesday night’s senatorial debate in Jackson, Mississippi, to read an apology from her notes. “For anyone that was offended by my comments, I certainly apologize,” she said. “There was no ill will, no intent whatsoever in my statements.” She was referring to video from November 2 showing her respond to praise from a Tupelo cattle rancher, Colin Hutchinson, by remarking, “If he invited me to a public hanging, I’d be on the front row.” Hyde-Smith rebuked the suggestion this was a reference to Mississippi’s history of lynchings and accused her critics of taking it out of context

Shortly after the “hanging” video surfaced on November 11, another video went public of her purportedly “making a joke” about suppressing unfavorable votes. “And then they remind me that there’s a lot of liberal folks in those other schools who maybe we don’t want to vote,” she said during a campaign stop in Columbus on November 3. “Maybe we want to make it just a little more difficult. And I think that’s a great idea.”

Either comment might be interpreted plausibly as a slip of the tongue, in isolation. Hyde-Smith is new to campaigns with national implications, having been previously appointed to the Senate, not elected. What might fly locally — as far as jokes and off-color remarks — invites more scrutiny with the country watching. But on Monday, Politico uncovered Facebook photos that Hyde-Smith posted in 2014, depicting the then-state commissioner of agriculture and commerce at the Jefferson Davis Home and Presidential Library, the former Biloxi residence of the Confederate leader and slavery proponent. She was wearing a Confederate soldier’s hat.

At this point, this is no accident. Mississippi history holds many lessons, good and bad. That its white governors and their foot soldiers among the citizenry fought a war to preserve the routine bondage, forced labor, and torture of black men, women, and children, is among the most damning, even without the century of segregation and terrorism that followed.

Public hangings are not neutral events anywhere, but in Mississippi, they and similar forms of extrajudicial torture and execution long served as tools of racist terrorism. The state led the nation in such violence over the course of nearly 75 years, with 654 incidents between 1877 and 1950, according to a database developed by the Equal Justice Initiative  . . . . “While one thousand white spectators watched, [Holbert and his wife’s] fingers and toes were cut off and large corkscrews were bored into their flesh,” Ifill wrote. “After a prolonged torture, the Holberts were burned alive. Three other black field workers who reportedly looked like Holbert were also killed that day by members of the posse organized to search for Holbert.”

Mississippi’s history of suppressing votes is equally brutal. Making voting “a little more difficult” for opposing constituencies often meant white citizens terrorizing black people into avoiding the ballot box altogether.

Activist Charles Cobb described in further detail the violence that often faced such efforts. “Right after the first attempt to register people to vote [in Indianola in 1962], nightriders came through the black community and shot up three houses, wounding the daughter of a neighbor of the person we were staying with.” Such stories are not rare. When journalist Nikole Hannah-Jones visited Greenwood in 2014, she met Silas McGhee, a local black man who had tried to register other black locals under Jim Crow. “At the height of the Mississippi civil rights struggle, a white man pulled up in a car and shot McGhee in his face when McGhee was sitting outside of a Greenwood restaurant,” she wrote. “The bullet barreled through his mouth, taking his front teeth with it.” And although suppressive efforts are more subtle today, they often achieve similar ends.

As for Hyde-Smith’s celebration of Confederate history, Mississippi’s own declaration of secession outlines the reasons for its rude departure in stark terms. “Our position is thoroughly identified with the institution of slavery — the greatest material interest of the world,” it reads. “Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth … These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization.”

The  will be campaigning for Hyde-Smithis clear. That a candidate for U.S. senate has made such a persistent habit of winking at these gory strands of Mississippi history erases plausible deniability that she meant them innocently. Such gleeful treatment, further, leaves little doubt she finds them unimportant enough to be flippant about them at best, and worth celebrating at worst. There are likely those who appreciate this approach. Many likely sympathize. But nobody is required to give her the benefit of the doubt.

Polls currently have Hyde-Smith ahead by five points. Next Tuesday, Mississippi will have its answer.

Der Trumpenführer will be campaigning for Hyde-Smith in Mississippi.  One racist campaigning for another racist.

The Supreme Court Is Headed Back to the 19th Century

If one wonders where America is likely headed with a Supreme Court firmly controlled by a reactionary majority, a very lengthy piece in The Atlantic suggests that we are headed back to Court decisions like those in the 19th Century which protected the powerful, especially corporations, and set the frame work for the Jim Crow laws.  Racial minorities and the LGBT community in particular should be very fearful if the lessons of history show us anything.  Through it all, a pretense of a support for "freedom" will be maintained even as discrimination is maintained.  The Christofascists and white supremacists of Trump and the GOP's base will be thrilled since they will be allowed to victimize and discriminate against others. The rest of the GOP supporters will be complicit in the wrongs done and will need to be held accountable when the day of reckoning does finally come after incalculable harm has been done.  Here are article excerpts (take the time to read the entire article):

When the Louisiana State Militia finally arrived at the Colfax courthouse on April 15, 1873, all it could do was bury the bodies. Two days earlier, a large force of white supremacists had taken control of the courthouse from the mostly black faction protecting it. J. R. Beckwith, the U.S. attorney for New Orleans, told Congress that in the aftermath the ground was “strewn with dead negroes,” their bodies plundered by whites who had come to watch the bloodshed. The dead remained “unburied and mutilated,” Beckwith said, until federal troops arrived days later to shovel them into a mass grave.

“Not a single negro had been killed until all of them had surrendered to the whites who were fighting with them,” The New York Times reported at the time, “when over 100 of the unfortunate negroes were shot down in cold blood.”

President Ulysses S. Grant called the Colfax massacre a “butchery” that “in bloodthirstiness and barbarity is hardly surpassed by any acts of savage warfare.” . . . Many white Southerners saw it differently. Robert Hunter, the editor of The Caucasian, a Louisiana newspaper, told Congress in 1875 that some of his own staffers had participated in the massacre. “I approved it, as most of our people did,” Hunter testified. “Had not the Colfax affair ended as it did, not less than a thousand niggers would have been killed later.”

Seventy-two men were ultimately indicted for their role in the Colfax massacre, charged under the Enforcement Acts of 1870, which were passed to help the federal government suppress the Ku Klux Klan. But their convictions were overturned by the U.S. Supreme Court, which concluded that the federal government lacked the authority to charge the perpetrators. . . . And it wouldn’t have mattered if they had, argued the Grant-appointed Chief Justice Morrison R. Waite, because the Fourteenth Amendment’s powers did not cover discrimination by individuals, only by the state. “The only obligation resting upon the United States is to see that the States do not deny the right,” Waite wrote.

This decision, in United States v. Cruikshank, the legal historian Lawrence Goldstone argues, provided a guide for the campaign of racist terrorism that would suppress the black vote and enshrine a white man’s government for generations.

Grant was enraged that “insuperable obstructions were thrown in the way of punishing these murderers … and the so-called conservative papers of the State not only justified the massacre, but denounced as federal tyranny and despotism the attempt of the United States officers to bring them to justice.” . . . By the end, racial segregation would be the law of the land, black Americans would be almost entirely disenfranchised, and black workers would be relegated to a twisted simulacrum of the slave system that existed before the Civil War.

The justices . . . carefully framed their arguments in terms of limited government and individual liberty, writing opinion after opinion that allowed the white South to create an oppressive society in which black Americans had almost no rights at all. Their commitment to freedom in the abstract, and only in the abstract, allowed a brutal despotism to take root in Southern soil.

The Conservative majority on the Supreme Court today is similarly blinded by a commitment to liberty in theory that ignores the reality of how Americans’ lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice.

Chief Justice John Roberts’s June 2018 ruling to uphold President Donald Trump’s travel ban targeting a list of majority-Muslim countries, despite the voluminous evidence that it had been conceived in animus, showed that the muddled doctrines of the post-Reconstruction period retain a stubborn appeal.

In doing so, he [Roberts] embraced the logic of decades of jurisprudence from his predecessors on the high court, whose rulings ensured that the Constitution would not interfere with the emergence of Jim Crow in the American South. The nation’s founding document is no match for a dedicated majority of justices committed to circumventing its guarantees.

Not since the end of Reconstruction has the U.S. government been so firmly committed to a single, coherent program uniting a politics of ethnonationalism with unfettered corporate power. As with Redemption, as the end of Reconstruction is known, the consequences could last for generations.

The lesson of the post-Reconstruction Supreme Court is that a determined Court majority can prove stubbornly resistant to short-term swings of political fortune. Even if Democrats win the next election cycle, and the one after that, an enduring conservative majority on the Supreme Court will have the power to shatter any hard-won liberal legislative victory on the anvil of judicial review. It will be able to reverse decades-old precedents that secure fundamental rights. It will further entrench the rules of a society in which justice skews toward the wealthy, and the lives of those without means can be destroyed by a chance encounter with law enforcement. It will do all these things and more in the name of a purely theoretical freedom, which most Americans will never be able to afford to experience.

The Supreme Court’s moments of majesty, such as Brown v. Board of Education, which outlawed segregated schools; and Loving v. Virginia, which struck down anti-miscegenation laws; and even Obergefell v. Hodges, which legalized same-sex marriage, are few and far between. For most of its existence, the high court has been committed less to upholding the rule of law or the Constitution than to preserving its own legitimacy, unwilling to shield the powerless from the mob unless convinced that it has the political cover to do so. Like many things in America, the ideal rarely resembles the execution.

The Colfax massacre is most often remembered as the single worst act of violence during Reconstruction, but it also set a template for the high court’s approach to the bloody restoration of white rule in the South. The men who carried out the massacre had popular support among Southern whites—according to the historian Ted Tunnell, “nearly half the white males” in New Orleans alone belonged to terrorist groups such as the White League, which was willing to use violence to secure political gains or prevent black Americans from voting. With Cruikshank, the justices sent the message that if white Southerners wished to overthrow their state government at gunpoint, the Supreme Court would bar efforts to prosecute them.

The Supreme Court’s growing hostility to federal efforts to protect black rights would come to its logical conclusion in the 1896 case of Plessy v. Ferguson, which upheld segregation in public transportation. Justice Henry Billings Brown, a Rutherford B. Hayes appointee, wrote that “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Separate was not inherently unequal, he insisted. . . . As the historian Ibram X. Kendi has written, “Brown relied on racist ideas to support a policy that was clearly discriminatory in intent. It was his job to obscure those intentions.”

In 1898, in Williams v. Mississippi, the William McKinley–appointed Justice Joseph McKenna would write for a unanimous Court that literacy tests and grandfather clauses, two cornerstones of Jim Crow–era disenfranchisement, were constitutional because they also affected some whites. That the devices were consciously used to bar black voters from the polls was of no significance—the Court would avert its eyes and plug its ears.

“The Court increasingly used the due process clause of the Fourteenth Amendment to protect corporations from state regulation rather than the civil rights of persons.” In case after case, “the U.S. Supreme Court had come to embrace the logic of corporations,” Painter wrote in Standing at Armageddon, her history of the Gilded Age. “These decisions outlawed virtually any attempt by states to limit maximum hours of work, of unions to strike, and of the federal government to curb or regulate monopolies or to curb the accumulation of vast fortunes.” . . . The redistribution of civil rights from American citizens to American corporations helped create the greatest disparities in wealth in the nation’s history, until the present day.

“The Supreme Court contributed to the inequality of the Gilded Age by reinforcing and encouraging racial segregation. By refusing to read the Fourteenth Amendment broadly for minorities, they allowed a system of racial apartheid to go up in the South,” Winkler said. “On the other side, the corporate rulings enhanced inequality by entrenching the power of industrialists, financiers, and wealthy elites at the expense of immigrants and the working class."

Chief Justice Roberts upheld the [Trump muslim] ban, writing that it was “facially neutral” and that “the text says nothing about religion.” His decision echoed the logic of the Supreme Court’s rulings in Redemption-era cases such as Cruikshank and Williams: that as long as the legal language itself did not explicitly mention the group being discriminated against, intent and effect were irrelevant. The implications are larger than one religion: As with the Redemption Court, which gave the Redeemers a blueprint for creating a segregated society through laws that “do not on their face discriminate between the races,” Roberts and the conservative majority have indicated that Trump’s bigotries can be made policy as long as they appear “facially neutral.”

With Anthony Kennedy’s retirement, there is no discriminatory voting restriction the justices will be unable to sanction, no immigration law born in animus they will be unable to approve, no expansion of corporate power they will be unable to accept, no grant of presidential immunity they will be unable to uphold, no financial or environmental regulation they will be unable to strike down, no religious objection to an anti-discrimination law they will be unable to recognize, no worker protection they will be unable to repeal, no limitation on abortion they will be unable to allow, and no abuse of power by law enforcement they will feel compelled to restrict. 

There is hope for the Democratic Party in its base. The black and brown workers intimately acquainted with the two-faced nature of American liberty, the rebellious teachers whose surprise strikes brought red-state politicians to heel, the young leftists whose cold-eyed understanding of power mirrors that of their Republican opponents, and the feminists who flooded the streets after Trump’s inauguration forced the nation to reckon with the ascension of predatory men to the highest levels of culture, clergy, and state. But they will have to contend with a party establishment that is so divorced from the lives of those the Trump administration has put in peril that it cannot comprehend what will be required to defeat Trumpism. Democracy is a fight, and the Democratic Party’s leadership has yet to show that it can even wrap its hands.

Be very, very afraid.  America could be poised to revisit some of its ugliest history.

Statistics: Blacks Treated More Harshly Than Whites Under Virginia's Marijuana Laws

From the end of Reconstruction onward through the Jim Crow period and then to Massive Resistance, Virginia lead the South in devising ways to disenfranchise black voters and/or subjugate blacks to an inferior status. Virginia's current marijuana laws are a continuation of that legacy which involves two steps: first, enact draconian marijuana laws and second, disproportionately target blacks for arrest and prosecution.   Under § 18.2-250.1, Code of Virginia, possession of marijuana is punishable by up to 30 days in jail and a fine up to $500 for the first offense and up to one year in jail and a fine up to $2,500 for subsequent offenses.  Under § 18.2-248.1, the delivery or sale of one-half ounce of marijuana or less is punishable by up to one year in jail and a fine up to $2,500. For greater than one-half ounce, the penalties increase to a possible 1 - 10 years in prison and a fine up to $2,500. Add to this the disproportionate prosecution of blacks for marijuana offenses and one discovers a vehicle to accomplish the voter disenfranchisement so loved by Republicans, including those in the Virginia General Assembly.  Inroads have been made in legalizing medical marijuana, but much reform and decriminalization for recreational use is needed. A piece in the Daily Press looks at the damning statistics on what happens to black Virginians.  Here are excerpts:

Whites charged with marijuana possession in Virginia are more likely to get a second chance, while blacks are far more likely to spend time behind bars, a Daily Press review of court data found.

And, while only about one in five Virginians is African-American, half of those charged with a first offense of marijuana possession are black, the review found.

The data show the pattern holds for all marijuana charges, for first offenders and for first offenders who were not charged with any other offense when arrested. 

Health surveys suggest blacks and whites are about equally likely to use marijuana. But, in Newport News and Hampton, where U.S. Census figures show just under half the residents are black, African-Americans are defendants in more than three-quarters of first-offense marijuana cases.

“This is something I kind of knew, I felt it in my gut, but we never had the numbers,” said a shocked Del. Mike Mullin, D-Newport News, who has worked as a prosecutor for a decade and has been thinking Virginia might need its first update in four decades of its marijuana possession laws.

The Daily Press analysis of district court case records found 49 percent of all first-offense marijuana charges statewide are filed against African-Americans, compared to 47 percent against whites. The percentages are almost exactly the same when those first-offenders have no other charges, which occurs a bit less than half the time.

The disparities are sharper on the Peninsula. In Newport News, 75 percent of charges are filed against blacks; in Hampton, the figure is 80 percent.

The paper reviewed nearly 29,500 marijuana cases from 2017 arrests, matching them against a database of more than 200,000 earlier cases to sort out individuals charged with possession for the first time, and a database of more than 1.8 million other district court cases from 2017 to find those who had been charged only with marijuana possession.

The review found:

*Once in court, blacks are slightly more likely to be found guilty, but are significantly more likely to go to jail. Only about one out of 14 convictions for a first-offense marijuana possession ends up with jail time; but of those that do, 65 percent are black. 

“These figures are staggering,” said Bill Farrar, director of public policy at the American Civil Liberties Union of Virginia. . . . Farrar said, “there is no reason to keep possession on the books as a criminal charge except as way to punish a particular group of people … this is a major racial justice, criminal justice and mass incarceration issue.”
 “It was meant to be an easy conviction, especially after the General Assembly dropped the requirement for a crime lab analysis of seized marijuana in possession cases — the field analysis is sufficient to prove a substance is marijuana,” he said. In Hampton Roads’ urban cities, four out of five charges for a first offense of marijuana possession making it to court were filed against African-Americans. In suburban communities, that figure was just under two-thirds. In Newport News, the figure was three out of four. In rural communities, about half of cases going to court were filed against blacks. In the Williamsburg/James City County General District Court, about half the cases of first-offense marijuana possession were filed against blacks. Once in court, judges found blacks guilty in seven of 10 cases, whites in four of 10. Four out of 10 blacks found guilty spend time behind bars, while two out of 10 whites did.

And, of course, once has a criminal record on their record, it becomes much more difficult to find a decent job setting the stage for marijuana law loving Republicans to whine about blacks not in the work force and being freeloaders.  If Virginia wants to escape some of the worse elements of its past, one step is to decriminalize recreational marijuana. 

The Right's Dangerous Obsession With the "Good Old Days"

One of the obsessions of the far right is the desire the "good old days" - a mythical time that never truly existed save for the fact that white privilege was still at its zenith.  For the Republican Party part of this obsession is restoring the Gilded Age when the excesses of millionaires knew few limits and in a pre-work regulation world, the lives of many workers were brutal and life expectancies were short.  None of these harsh and ugly realities seemingly lessen the far right's desire to restore this mythical time when the few had things good but the masses did not. Donald Trump's greed, racism, worship of money, and indifference to the many embodies some of the ugliest attributes of this far right longing.  A piece column in the Washington Post uses the recent anti-gay incident at Nichols Hardware in Purcellville, Virginia, as a launching point to review just how cruel the past the far right and white supremacists was for most Americans.  Here are excerpts:

From the handwritten receipts to the tin ceilings and worn wooden floors, Nichols Hardware — opened in this small Virginia town in 1914 and still open today, from 8 a.m. to 5:30 p.m. — oozes nostalgia.

And that can be a dangerous thing. Because those good old days weren’t so good for many people.

Lynchings were still occurring in the Virginia Piedmont region when the store opened. Women couldn’t vote. Anyone suspected of being gay was regularly fired, arrested, jailed and prosecuted. Ten percent of all babies died in their first year of life, and the average life expectancy was just 54 years. Workplace deaths were common, and there was “virtually no regulation, no insurance, and no company fear of a lawsuit when someone was injured or killed” on the job, according to a report by the Bureau of Labor Statistics on what those days were like 100 years ago.

It can be easy to forget the brutality and cruelty of those old-timey days when we wrap ourselves in a chalk-painted, custom-distressed longing for mason-jar lemonade and a simpler, kinder time that never really was.

One of the employees of the Loudoun County hardware store gave the nation a disturbing reminder of that over the weekend when an aspiring Eagle Scout looking for donations at the store for a project was served up a bygone-era rant about “homos” and co-ed scouting, then “thrown out” of the store, according to the boy’s father.

The employee was reacting to recent news that the Boy Scouts of America now welcome girls, that the organization has changed its name to Scouts BSA and that three years ago, it lifted a ban on all gay members and leaders.

How easily the man forgot the other times the Boy Scouts of America made news, such as when a court ordered the organization in 2012 to release about 2,000 pages of sex abuse reports from its “perversion files,” created in the 1920s in the Scouts’ halfhearted hunt for child abusers preying on boys. . . . . The most consistent part of the reports was the coverup. Parents, kids, leaders all hush-hushing the abuse and moving the abusers along — quietly, Catholic Church-style — to the next group of victims.

[W]ith the termination [of the bigoted employee], the Nichols family firmly reminded folks of how far we’ve come and how absurd it is to gloss over the ugliest pieces of our past.

Historian Stephanie Coontz wrote a book debunking our mythology about the past. The title: “The Way We Never Were: American Families and the Nostalgia Trap.”

“Knowing there was no golden age of family life, I believed, would enable people to deal more effectively with the problems facing today’s families than if they continued to romanticize the ‘good old days,’ ” she wrote.

Coontz reminded readers that in those romanticized days, half of all mills and factories were filled with child workers, when kids as young as 6 pulled 12-hour shifts. Colonial families were rarely nuclear, as most kids experienced the death of at least one parent. And then there are the white folks who have fond memories of childhoods filled with warm and nurturing black women who had to leave their own children behind to care for them.

There it is, the ability to forget how great America is while longing to make it somehow great again. . . . . What couldn’t happen in those allegedly romantic times?

A black man couldn’t shop at many stores, let alone serve as the town’s mayor — no, three-term mayor — the way Purcellville Mayor Kwasi Fraser, an immigrant from Guyana, has.

868 Estate Vineyards couldn’t tout itself as friendly to LGBT weddings. There would be no LGBT weddings.

There would be no wine. And taking a walk to the Nostalgia boutique would be quite gross, because Main Street was known as Polecat Hollow, an unpaved byway for animal waste.  Not too charming, right?

 The real agenda of the right: to revert to a past time and in the process strip millions of Americans of their civil rights and reinstitute a modernized version of the Jim Crow laws.  All so those clinging to antiquated and perverted theology and racial prejudice can feel superior about themselves. 

Why I and Others Continue to Resisit

Two of the things that madden me about numerous "friends" who voted for Trump/Pence are (i) statements that I need to "move on" and/or "get over it," and (ii) their refusal to see the damage their foolish and/or bigotry inspired vote is doing to others and the country as a whole. Others focus on the unimportant much like proverbial soccer moms who obsess over children's sports and PTA squabbles as things around them turn ominous.   The mindset - beside being one of "we won" - is that if evils, corruption and bigotry are ignored, somehow they cease to exist and things will be OK.  As the previous post demonstrates, ignoring the toxicity of the Trump/Pence regime is not something LGBT citizens can do when we so clearly have a bull's eye on our backs. Trump and the Christofascists in his base have every intention of lessening our rights and making us less than full citizens. Individuals who would be outraged if they themselves were turned away by businesses or faced housing discrimination have no problem looking the other way when it happens to others.  Simply put, bad things happen when good people do nothing or worse yet allow themselves to ignore wrongs being done to others.  Nazi Germany shows where such indifference can lead.  A column in the New York Times makes the case for why resistance is essential.  Here are excerpts: 

When Congress has to pass a joint resolution condemning white supremacy and plunk it on the desk of the “president” — in an effort to force him to sign it and daring him not to — you know that we as a country are beyond the pale.

When Donald Trump’s fraudulent voter-fraud commission openly entertains the loony and unworkable idea of further winnowing the voter rolls by forcing potential voters to undergo the federal background check used for gun buyers, you know that this administration is trying every way it can to ax voter access and re-establish Jim Crow poll tests.

When Robert Mueller is circling this White House like a hawk preparing to descend on a chicken coop, you know that the stench of corruption emanating from this administration reaches to the heavens.

Indeed, on Tuesday, Axios reported this intriguing line:

“Republicans close to the White House say every sign by Mueller — from his hiring of Mafia and money-laundering experts to his aggressive pursuit of witnesses and evidence — is that he’s going for the kill.”

I often hear from Trump enthusiasts and accommodators that at some point resistance must submit, that the time for outrage is term-limited, that at a point, complete opposition registers as unfair and unpatriotic.

This always settles on me in a most unsettling way. How is it, precisely, that right becomes less right and wrong less wrong simply by the passage of time and the weariness of repetition?  How is it that morality wavers and weakens, accommodates and acquiesces?

It seems to me the oddest of asks: Surrender what you know to be a principled position because “moving on” and “moderation” are the instruments that polite society uses to browbeat the radical insisting on righteous restoration.  I see no value or honor in this retreat.

[E]very day that I wake and recall that a bigoted, sexist, intolerant, transphobic scoundrel is president, my stomach turns and my skin crawls.

We are now talking about an administration that is attempting to dramatically reshape the demographics of the eligible electorate, in particular striking at groups who overwhelmingly vote for Democratic candidates and overwhelmingly voted against Trump.

We are talking about the basic concept of whether our government, and by extension our country, advances unity or division, love or hate.

We are talking about an assault on our democracy by a hostile foreign power, the contours and scope of that assault coming into greater clarity every passing day.

It is crystal clear what Russia’s motive was: to get Trump elected. As CNN reported this week, Vyacheslav Nikonov, a member of the Duma, the lower house of the Russian Parliament, said on a Sunday political show that to achieve world dominance, “the U.S. overextended themselves.” He went on to say that the intelligence services slept “while Russia elected a new U.S. president.”

How can any of us, if we are true patriots, be expected to simply calm down and suck it up when the Russians are bragging that the “president” of this country isn’t ours but theirs?

None of this is normal or right, and Trump’s chief of staff, John Kelly, in my opinion, has become one of the most dangerous men in America because he is endeavoring to make the abominable look acceptable. No, thanks, sir, I prefer my disasters not to wear a disguise.

Good people of good conscience are seeking to do what Trump only gave lip service to, and in his way bastardized. We, patriots, will not stop resisting this destruction. It is we who will Make America Great Again by trying to limit the damage Trump can do to us until he feels the reckoning of the damage he has done to himself.

To me, one of the ironies is that those who proudly wear their white Christian nationalism on their sleeves see nothing wrong with any of these horrors.  Indeed they voted for it and remain Trump/Pence loyalists.  Meanwhile, I left Catholicism years ago and, given what the Christofascists have done to Christianity, generally don't even consider myself a Christian anymore.  Yet, I still know the difference between right and wrong and will not close my eyes to hatred and evil.  Which model would Christ endorse?  I suspect that it would not be the one pushed by Trump's evangelical Christian supporters. 

Pro-Trump Evangelical Leaders Release Anti-LGBT Statement

As Donald Trump, a/k/a, Der Trumpenführer, continues his anti-LGBT policies, a core group of evangelical Christians who have supported Trump with few exceptions have worked to ratchet up anti-LGBT hysteria, including by pushing for so-called bathroom bills to target transgender students.  Now, these same hate merchants have released an anti-LGBT manifesto that seeks to further malign and denigrate LGBT individuals.  I'm sure one side motivation is to use this latest assault on LGBT citizens to raise money, the true god of these individuals, by further hyping the treat that LGBT individuals pose to the safety of women and children and "religious liberty" which translates as the right to abuse whomever one desires. A piece in Huffington Post looks at this latest message of hatred.  Here are story excerpts:

A coalition of over 150 evangelical leaders released a manifesto on Tuesday reiterating their belief that marriage should be between a man and a woman.

Titled the “Nashville Statement,” the document also asserts that God created two distinct sexes, that sex should only occur within the bounds of heterosexual marriage, and that “it is sinful to approve of homosexual immorality or transgenderism.”

The statement emerged out of a meeting convened by the Council on Biblical Manhood and Womanhood on Friday at the Southern Baptist Convention’s Ethics and Religious Liberty Commission’s annual conference in Nashville. It consists of 14 statements of affirmation and denial relating to human sexuality.

For instance, Article 7 of the statement reads:

WE AFFIRM that self-conception as male or female should be defined by God’s holy purposes in creation and redemption as revealed in Scripture.  WE DENY that adopting a homosexual or transgender self-conception is consistent with God’s holy purposes in creation and redemption.

Nashville mayor Megan Barry tweeted Tuesday criticizing the coalition for using her city’s name in a statement of exclusion.

Among the signers were many prominent and influential evangelical leaders, including Steve Gaines, president of The Southern Baptist Convention, Russell Moore, president of the SBC’s Ethics & Religious Liberty Commission, Albert Mohler, president of The Southern Baptist Theological Seminary, and Tony Perkins, president of the Family Research Council. Perkins was also reportedly one of the architect’s behind President Donald Trump’s ban on transgender service members. Though several Christian denominations, including the Episcopal Church and the Presbyterian Church (U.S.A.), have affirmed same-sex marriage in recent years, the Southern Baptist Convention has been squarely and unwaveringly opposed to anything other than heterosexual marriage. [C]ritics in the Christian community noted the bizarre and even “callous” timing of the document’s release and warned that it would do more harm than good:
 "To release it in the direct aftermath of Charlottesville, in the throes of Harvey, is a gross example of pastoral & leadership malpractice." “I am confident that future generations will look back at this resolution and see it as despicable as we do former Southern Baptist statements promoting slavery and segregation.”  

Meanwhile, Ann Coulter - who looks like an anorexic drag queen - used using Twitter to insinuate that “Houston electing a lesbian mayor” is a more likely explanation for Hurricane Harvey than climate change.

The Southern Baptist Convention has a long and ugly history.  Its treatment of LGBT people is in many ways a continuation of its support for slavery and then the Jim Crow laws.  If one isn't a white, heterosexual evangelical Christian, you aren't entitled to civil rights or deemed human.  It's a horrible denomination and, thankfully, its membership is falling.