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.
In 1820-1850 our courts felt in general a freedom and duty to move in the manner typified in our thought by Mansfield and Marshall. “Precedent” guided, but “principle” controlled; and nothing was good “Principle” which did not look like wisdom-in-result for the welfare of All-of-us. In 1880-1910, on the other hand, our courts felt in general a prime duty to order within the law and a duty to resist any “outside” influence. “Precedent” was to conrol, not merely to guide; “Principle” was to be tested by whether it made for order in the law, not by whether it made widom-in-result.
[I]t is plaint to see that the two earlier period-styles represent also two eternal types of human being. There is the man who loves creativeness, who can without loss of sleep combine risk-taking with responsibility, who sees and feels institutions as things built and to be built to serve functions, and who sees the functions as vital and law as a tool to be eternally reoriented to justice and to general welfare. There is the other man who loves order, who finds risk uncomfortable and has seen so much irresponsible or unwise innovation that responsibility to him means caution.
Karl Llewellyn, Remarks on the Theory of Appellate Decision
Law students are threatened neither with death nor the whip, but modern society has imposed quite effective facsimiles in the form of competitiveness needed to get into law school, the ambition and determination to do well, and the sense that success will be aided by accepting attitude toward whatever does or doesn’t happen to you during the process of learning law.
The goal is to get a degree, to avoid all confrontations with persons of authority, and to defer service activities and good works until you are established in your practice. Of course, in most cases the avoidance and deferment become a life-time pattern that, as with slaves, continues naturally and without thought long after the original motiviation is forgotten.
Your fear is not of death but of failure. Your chains are forged, not of iron, but of the magnetic force of money, status, and professional acclaim. These fetters can be as effective a restraint on liberty as was the slave’s desire to live and avoid the lash. But wealth and recognition are not the modern equivalent of the freedom sought so fervently by African slaves. Meaningful survival – as slaves like Nat Turner, Harriet Tubman, Gabriel Prosser, and Frederick Douglass learned – requires risk, confrontation, and revolt.
– Derrick A. Bell Jr., The Law Student As Slave