We’ve been here before
This isn’t the first time in our history that the Supreme Court has yanked away rights, and it took generations to fix
When news of President John F. Kennedy’s murder reached a young Hunter S. Thompson at home at Owl Farm, the Rocky Mountains retreat later known as base camp for gonzo journalism, he penned a boyhood friend from Louisville that a new era had begun.
“The killing has put me in a state of shock,” he wrote in a letter dated Nov. 22, 1963. “I was not prepared at this time for the death of hope, but here it is.”
The death of hope. That sentiment has been roiling my social media timelines for the past couple of weeks, thanks to a series of rulings by the U.S. Supreme Court. Of course, the Dobbs v. Jackson opinion eliminating the federal right to abortion is Exhibit A. By a sheer show of force, five justices wrote that right right out of the Constitution — simply because they could.
The court’s supermajority also expanded gun rights, blurred the line between religion and public schools, and sharply scaled back the executive branch’s capacity to address climate change and other crises. For next year, it accepted a case that could radically remake federal elections, removing safeguards against everything from gerrymandering to state legislators’ ability to overturn presidential elections.
Let’s not forget Justice Clarence Thomas’ call to reconsider landmark cases that established rights to contraception, to gay marriage, and even gay people’s right to sexual intimacy.
This may seem like uncharted territory. But as a nation, we have been here before. At the end of the Civil War, and then all over again in the 1960s, we’ve seen these same arguments over the 14th Amendment play out. That history, which is at the heart of America’s struggle to build a more perfect union, offers both good news and bad for anyone who, like me, desperately wants to believe in America and the rule of law and the court itself.
We can take heart that the same kinds of widespread outrage and stinging dissents from liberal justices that we’ve seen lately arose earlier in our history, when the court snatched away liberties that the political branches of government had worked so heroically to produce. The ensuing protests movements were loud enough to eventually put America back on a more hopeful course.
The bad news is that it took nearly 80 bloody years for that to happen.
The three amendments
Immediately after the Civil War, three amendments to the Constitution were proposed. The 13th Amendment abolished slavery; the 14th barred states from depriving any citizen of life, liberty or property without a fair hearing, and promised
everyone equal protection of the law. The 15th guaranteed the right to vote, regardless of race.
These profound changes improved upon the vision of 1776, when Madison, Adams, Jefferson and their brethren brought forth upon this continent a nation founded on ideals of liberty but weighted down by explicit compromises that carved out exceptions for millions of Americans. The amendments were hard-won spoils of a war that had claimed more than 600,000 American lives.
The three amendments were also the product of bitter infighting within the Party of Lincoln. President Andrew Johnson and others sympathetic to the South saw the Radical Republicans who seized control of Congress during the Reconstruction era as too singularly focused on protecting Black rights. They loathed Sen. Charles Sumner of Massachusetts, for instance, who insisted the amendments authorize Congress to pass whatever law necessary to enforce them. Sumner warned that former slaveholders, if Congress permitted, would quickly act to frustrate Blacks’ civil rights. “If, by this, you expect to induce the recent slave-master to confer the right of suffrage without distinction of color, you will find the proposition a delusion and a snare,” Sumner thundered, in an account preserved by W.E.B. DuBois. “He will do no such thing . ... There are tricks and evasions possible, and the cunning slave-master will drive his coach and six through your amendment stuffed with all his representatives.”
Sumner succeeded in scuttling attempts to weaken the amendments, and by 1866 Congress had approved them by a two-thirds majority. But his warnings would prove prophetic nevertheless.
Promise into statute
As the amendments took effect, many Southern states scrambled to implement racist restrictions on conduct and commerce called Black Codes. Congress scrambled in turn to draft the Civil Rights Act of 1866, aimed specifically at countering such harsh discrimination. It declared all people born in the United States, with the exception of Native Americans, were citizens, regardless of race, and were to be treated equally under the law.
U.S. Sen. Lyman Trumbull of Illinois explained the act’s purpose just days after the 13th Amendment was certified:
“That amendment declared that all persons in the United States should be free,” Trumbull said as he introduced the bill. “There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be affected by them have some means of availing themselves of their benefits.”
But the 1866 bill did little to ensure Black people would be fully welcomed into the social and cultural life of their nation. To insist that they be admitted to theaters, allowed to book hotel rooms and granted passage aboard trains, Sumner introduced a second Civil
Rights Act in 1870. Congress, now full of members from the South, debated it for five years. Passage came in 1875, just after Sumner’s death in Washington.
But enforcing the new law proved difficult. By 1883, five cases alleging violations of the act had arrived at the high court. Black persons had been denied admission to theaters in New York and San Francisco, denied seats on a train and refused lodgings in a hotel. The court voted 8-1 to find that exclusions based on race were merely civil wrongs, not leftover vestiges of servitude, and therefore did not violate the 13th Amendment. And as for the 14th, the justices declared it had power only to stop racial discrimination by the states, not by private businesses or individuals.
Only Justice John Marshal Harlan, a unionist (and former slaveholder) from Kentucky, dissented.
Thirteen years later, the court ruled even state-mandated discrimination didn’t necessarily violate the Constitution. It upheld a Louisiana law requiring railroad operators to supply “separate but equal” coaches for white and Black passengers. In Plessy v. Ferguson, the justices reasoned the laws left no true harm. “We consider the underlying fallacy of the plaintiff ’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority,” wrote Justice Henry Brown of Michigan. “If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
Again, only Harlan dissented. Despite the demise of slavery, Harlan wrote that there remained in America a system adopted by “the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race.”
Those bold words failed to win the day, and the majority’s argument in favor of racial discrimination would hold sway for more than a half-century. Racial segregation became the norm, especially — but not only — throughout the South. Together with the Civil Rights Cases of 1883, the holdings locked in place a system in America under which private citizens could discriminate at will, and state governments could enforce a separation that led to what seemed like a permanent underclass and secondclass citizenship.
There arose a culture of terror where rights guaranteed by the Constitution were denied by night riders with hoods on the one hand and judges who refused to honor the clear intent of the 13th, 14th and 15th amendments on the other.
Court redemption?
Congress wouldn’t pass another Civil Rights Act until 1957, three years after the Supreme Court finally overturned Plessy v. Ferguson, in the Brown v. Board of Education case that tossed out the doctrine of “separate but equal.” After Kennedy’s death, Congress passed the landmark Civil Rights Act of 1964 and the Voting Rights Act of 1965.
Together, all of these laws were designed to restore the protections the Reconstruction Congress had sought to secure a century before. And just as they were in 1883, they were challenged again before the Supreme Court. This time, though, the court ruled in Jones v. Alfred Meyer that Congress had every right to outlaw discrimination by hotels, trains and theaters, for instance.
Freed of its shackles, the 14th Amendment’s protections expanded over time as the concept of liberty, which grew to include the use of contraception, the private sexual lives of consenting adults and the choice of whom to marry.
That history ought to give anyone hope that a rogue Supreme Court can be redeemed.
On the other hand, who has 80 years to wait?
A dirty game
That’s why so many people I’ve talked with in recent weeks are on edge about the nature of our democracy.
It’s what Hunter S. Thompson felt, too, all those years ago.
“Neither your children nor mine will ever grasp what Gatsby was after . ... No matter what, today is the end of an era,” he wrote the night of Kennedy’s murder. “No more fair play. From now on, it’s dirty pool and judo in the clinches. The savage nuts have shattered the great myth of American decency. They can count me in — I feel ready for a dirty game.”
And yet for all his passionate fury, and seeming willingness to get his hands soiled, Thompson never did give up on America.
He beat on, a boat against the current in search of that green light on the horizon that his hero, F. Scott Fitzgerald, wrote so searchingly about. “Fear and Loathing in Las Vegas,” his most famous book published just eight years after Kennedy’s death, was a “savage journey to the heart of the American Dream.”
I am not going to give up either, not on America and not on the journalist’s job to keep looking closely at where we are and where we could be, no matter how dirty the game gets.