Despite my admiration for Melissa Murray (a frequent guest on Chris Hayes's show), and knowledge of her sister law professors Kate Shaw and Leah Litman, I've never listened to their shared podcast, "Strict Scrutiny," until now. As I've said before, my life is not well-suited to listening to podcasts, and even the ones I subscribe to, I don't listen to most of the downloads.
However, I heard that their September 29 episode included two of my favorites as guests, Sherrilyn Ifill and Jamelle Bouie, discussing the post-Civil War Supreme Court, essentially in comparison with the current court majority. The Reconstruction-era court was a roadblock to implementing the post-Civil War amendments and making Black people full citizens, just as the current Supreme Court is trying to dismantle the achievements of the Civil Rights movement.
The part of the two-hour podcast where Ifill and Bouie come in is around the 1-hour mark (after a bunch of judicial news of the week).
Just after 1:10 or so, Ifill sets out a truth about the post-war amendments that I don't know if I ever fully realized:
Melissa Murray: [The ethos of the Lost Cause and the idea of restoring the honor of the South] is very much underpinning John Roberts's 2013 majority decision in Shelby County v. Holder, which dismantles the preclearance regime on the view that subjecting formerly discriminatory states to preclearance degrades them in some way in the eyes of their sister states.
Sherrilyn Ifill: See, this makes me crazy. Because it is a denial of the very project of the Civil War amendments. The Civil War amendments start from the premise that what we have learned is that, if we are going to integrate — and we are — going to integrate Black people, both formerly enslaved and free, into the body politic and into full-class citizenship, the states cannot be trusted to protect their rights. That's basically it, if we just kind of put it in a nutshell. The great reordering of the Civil War amendments is the expansion of federal power to the detriment of the states. The words NO STATE SHALL — right? — that is kind of the core of the thing.
And there's no better example of Congress doing that job than when the Congress passes those Enforcement Acts that you were talking about, and they hold a series of hearings, the Ku Klux Klan hearings. President Grant is getting letters, he's going nuts, he's gotta do something about this violence in the South. Congress doesn't just write up an Enforcement Act! They hold hearings, and brave Black people come forward to say, This is what has happened to us. We live in the woods because we're afraid to be in our house. They broke something in me when they violently raped me. They tied me to a tree and they whipped me.
All of this information, which then leads Congress to pass the Ku Klux Klan Act or the Enforcement Acts, as we call them. This is like Congress spending a year investigating whether Section 5 of the Voting Rights Act and the coverage formula is still needed, by having 90 witnesses, by having thousands of pages of material. And ultimately concluding, we thought it would be better — and it's actually worse! And therefore, we're going to extend the Voting Rights Act again in 2006.
And [then] the Supreme Court coming forward and saying, But that is a dishonor to the reputation of the South. YES, the whole point of the Civil War amendments was — the South is dishonored. They have dishonored themselves and we don't trust them to protect the rights of THESE particular people.
I don't think I'm exaggerating! All of the signs, all of the legislative history point to that.
Near the very end, one of the hosts asks, What can we do about this? Their primary answer is education of the public, of course, whether through writing, like Bouie, or literal higher education, like Ifill. Both also make media appearances and do social media.
Ifill started the 14th Amendment Center at Howard University to call attention to the importance of that amendment, and she offered this as her ending comments:
I've said it all the time: People have no problem talking about their 2nd Amendment Rights, people talk about their 1st Amendment rights all the time — ordinary people...they feel like they know what their 1st Amendment rights are. You can be in a conversation, joking with somebody, and they'll say, I plead the 5th. It's not that we don't ever talk about the Constitution in normal language. But even those of us who are Civil Rights lawyers or activists — if someone is the subject of bias, we don't say "They violated their 14th Amendment rights." We say they were discriminated against or there was prejudice or there was bias. But we don't ground it in the Constitution.
And that's on us — that people in this country think that when we talk about race, we're talking about feelings and we're talking about morality, and we're not talking about the Constitution.
And so my hope, and part of what I want to do with the Center, is to have an opportunity to embed, to inculcate, the ordinary American public with the ideas, the values, the principles, of the 14th Amendment.
It's this incredibly powerful democratic moment. I use it as inspiration for what I hope will be a moment for — if we manage to make it past this period, no guarantees that we do, but if we do — that's the spirit that we should have towards thinking about refreshing democracy in America. It's allowed. You can do it. We've done it before. You can make a new country.
I think we need to learn about Reconstruction and the Civil War amendments and this period also as a sense of empowerment. To empower ourselves like we can be constitutional actors, that we can be founders and framers of a new republic.
The whole thing is worth a listen.
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