As the long-term conservative strategy to shift public discourse from explicit race hierarchy to “welfare queens” and low taxes progresses – all while protecting the structural reality of racial inequality in America – the slim gains of the Civil Rights Era have come increasingly under attack. The Supreme Court will be hearing a case in February challenging a crucial provision of the Voting Rights Act, the 1965 law that ensured the access of minority voters to the polls. This case – and Fisher v. University of Texas, the Supreme Court case challenging affirmative action this year – grow directly out of the myth of a postracial America. Conservatives have suffered losses on other fronts recently, but they are winning the struggle to make racial inequality completely invisible in American society. The arguments in Shelby County and in Fisher both more or less boil down to this: America has healed, so we no longer need civil rights laws. In fact, these civil rights laws have become unconstitutional.
This is all a roundabout way of cross-posting something I wrote on the Voting Rights Act on a different site:
After the formation of the NAACP in 1909, African American leaders pursued a strategy to challenge restrictive voting laws. Despite notable victories in cases such as Guinn v. United States, 238 U.S. 347 (1915) (striking down a grandfather clause in Oklahoma and Maryland) and Smith v. Allwright, 321 U.S. 649 (1944) (striking down whites-only Democratic primaries), racist voter suppression was too pervasive to be defeated by individual lawsuits. Furthermore, it was sometimes difficult to prove the government enacted these laws with discriminatory intent, which was necessary to establish an equal protection violation. Compounding the NAACP’s struggle was the fact that a single case could take years to win.
As the Civil Rights Movement gained ground throughout the 1950s and early 1960s, white supremacist tactics evolved and became subtler. Some jurisdictions implemented new facially neutral voting tests purporting to measure understanding of the issues and the character of the voters. Due to longstanding systemic inequality in education and subjective evaluation of good character, these tests effectively barred African Americans from the polls. Incumbent white politicians further disempowered African American voters by gerrymandering voting districts to weaken the black vote and prevent the formation of majority-black districts. In order to halt this deliberate avoidance of the requirements of the Fifteenth Amendment, Congress enacted Section 5 of the Voting Rights Act to force state and local governments across the South to justify any new electoral rules and procedures.…In this past election cycle, conservative politicians sought new voting rules in order to reduce Democratic voter turnout. Section 5 has been the strongest defense against voter suppression tactics. In the past year, Section 5 prevented the reduction of early-voting hours in some districts in Florida and blocked a voter ID law in Texas. The court that struck down the Texas ID law noted that the required documentation would be enormously burdensome to obtain, and would disproportionately affect minorities and the poor. Recently, federal judges used Section 5 to block a Texas redistricting plan that would have divided a population of African American and Latino voters into new, white-majority districts. Judge Thomas B. Griffith described it as a “deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote.”
Two points here: first, it is notable that stretching as far back as the 1870s, white supremacist laws have often been justified as race-neutral. Keep this in mind as you consider “neutral” voter-ID laws today.
Second, any defense of the VRA should touch on Emma Goldman’s famous dictum, “If voting changed anything, they’d make it illegal.” The history of race relations in America is, in part, the history of literally attempting (and often, succeeding) to make voting by people of color illegal. This attempt continues today.
The rhetoric of property rights has always run along two parallel tracks: the utilitarian and the moral. Utilitarians may acknowledge the arbitrariness, even the injustice, of private property while holding that it is nevertheless our best guarantee of freedom and prosperity. They might invoke the specter of Soviet collectivism, along with the “tragedy of the commons” — the depletion of resources held in common because no one holds the property rights that might encourage conservation. For the moralist, however, such arguments are beside the point: Whatever the political or economic efficiency of private property, it must be held inviolable because of the immorality of infringing on another person’s property. When the economy was mostly based on the production of physical commodities, the utilitarian argument tended to have the upper hand. For while the moralists must fall back on tendentious metaphysics (such as Locke’s contention that we take ownership of the common by “mixing our labor” with it), the utilitarian could simply point to propertarian capitalism’s manifest ability to deliver a world of material wealth, however inequitably distributed. With intellectual property, however, the situation is reversed. There is, to be sure, a utilitarian case for it, one enshrined in the U.S. Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” But the actually existing regime of intellectual property (IP) law has long outstripped that justification. Maintaining Disney’s perpetual copyright on Mickey Mouse has no discernible benefits to the progress of anything, and even when unauthorized copies of works undermine the profits of the culture industry, as has happened most obviously to the music business, this does not seem to translate into a shortage of music being produced. Serious studies — that is, those not funded by the copyright cartels themselves — tend to find that IP is an impediment to economic growth rather than a driver of it. An intellectual-property regime that hewed to its utilitarian roots would thus be a much less expansive one than what we have today, which is why the utilitarian arguments about IP tend to come from its critics. The liberal economist Dean Baker, for example, while conceding that copyrights provide an incentive for creative work, dismisses them as “an extremely inefficient mechanism” for achieving ends that could be better accomplished through direct government support of creative work.