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Felon disfranchisement preserves slavery’s legacy

By Pippa Holloway

Oxford University Press Blog    April 28, 2014

Nearly six million Americans are prohibited from voting in the United States today due to felony convictions. Six states stand out: Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia. These six states disfranchise seven percent of the total adult population – compared to two and a half percent nationwide. African Americans are particularly affected in these states. In Florida, Kentucky, and Virginia more than one in five African Americans is disfranchised. The other three are not far behind. Not only do individuals lose voting rights when they are incarcerated, on probation, or paroled, a common practice in many states, but some or all ex-felons are barred from voting. All six of these states have non-automatic restoration processes that make it difficult or impossible to have one’s rights restored. Not coincidentally, all of these states maintained a system of racial slavery until the Civil War.

At the other end of the spectrum are northeastern states, mostly those in New England, which put up few obstacles to voting by convicted individuals. Maine and Vermont are the only states in the nation that do not disfranchise anyone for a crime, even individuals who are incarcerated. Among the remaining 48 states, Massachusetts and New Hampshire disfranchise the smallest percentage of convicted individuals. Connecticut, Rhode Island, and Pennsylvania are also far below the national average.

Voters at the Voting Booths. ca. 1945. NAACP Collection, The African American Odyssey: A Quest for Full Citizenship, Library of Congress. Public domain via Wikimedia Commons. - See more at: http://blog.oup.com/2014/04/felon-disfranchisement-preserves-slaverys-legacy/#sthash.wdlC2De3.dpuf

Voters at the Voting Booths. ca. 1945. NAACP Collection, The African American Odyssey: A Quest for Full Citizenship, Library of Congress. Public domain via Wikimedia Commons. – See more at: http://blog.oup.com/2014/04/felon-disfranchisement-preserves-slaverys-legacy/#sthash.wdlC2De3.dpuf

Generalizations about regional difference are complex should be made cautiously. Although the six states with the highest rates of disfranchisement are all in the South, six other states also impose life-long disfranchisement for some or all felons. Arizona and Nevada have relatively high rates of felon disfranchisement. Midwestern states, particularly Illinois, Indiana, Ohio, and Michigan, have low rates of felon disfranchisement, as does North Dakota. Nonetheless, the Northeast and South stand in stark contrast.

Regional differences in felon disfranchisement today are the result of regionally divergent histories of slavery and criminal justice. New England states had outlawed slavery by 1800. Soon, they also stopped treating convicts like slaves, barring state-administered corporal punishment for criminal offenses in the first few decades of the nineteenth century. Instead, northeastern states embraced an ideology of criminality that emphasized rehabilitation. This attitude toward both slavery and punishment led many citizens and lawmakers in the northeast to oppose disfranchisement of convicts or at least curb the reach of this punishment. In the colonial era, Connecticut limited the courts that could deny convicts the vote. Maine’s 1819 constitutional convention rejected a proposal to disfranchise for crime. Vermont ended the practice in 1832. In other northeastern states proponents of such disfranchisement measures faced strong opposition. For example, Pennsylvania’s 1873 constitutional convention restricted felon disfranchisement to those convicted of election-related crimes; an effort to disfranchise convicts in Maryland in 1864 passed only after a long debate.

In contrast in the nineteenth-century South two groups were permanently cast out of full citizenship: African Americans and convicts. Although the enslavement of African Americans ended in 1865, “infamy” – the legal status of those convicted of serious crimes – was imposed on a growing number of the new black citizens. Accusations of prior crimes were used in the 1866 election as one of the first tools used to deny the vote to former slaves. In the 1870s, nearly every state in the former Confederacy (Texas being the exception) modified its laws to disfranchise for petty theft, a move celebrated by white leaders as a step toward disfranchising African Americans.

The legacy of slavery and segregation in the South is important to this story but so is the different regional trajectory of criminal justice. All southern states except South Carolina and Georgia (states today that still have among the lowest rates of disfranchisement in the South) enacted laws disfranchising for crime between 1812 and 1838, and there is little evidence of dissent or debate over this punishment anywhere in the region. Furthermore, southern states rejected the concept of criminal rehabilitation and focused instead on punishment. After the Civil War “convict lease” systems replicated in many ways the system of slavery for those who fell into it, creating a class of mostly-black individuals who were subject to physical punishment, public abuse, and humiliation, and denied voting rights.

PippaIn the past, as is also true today, individuals with criminal convictions fought long battles to regain their voting rights. Far from being a population that is uninterested in politics, individuals barred from voting have challenged obstacles to re-enfranchisement and overcome tremendous hurdles to have their voting rights restored. Consider the case of Jefferson Ratliff, an African American farmer living in Anson County, North Carolina, who in 1887 paid the court an astounding $14 to have his citizenship rights restored, ten years after his conviction for larceny (including three years’ incarceration) for stealing a hog. In Giles County, Tennessee in 1888 a man named Henry Murray paid $2.70 in court costs in an unsuccessful effort to have his voting rights restored. In other cases, poor and illiterate individual petitioners facing a complicated legal process sought help from friends and neighbors. In Georgia, Lewis Price petitioned Governor William Y. Atkinson in 1895 for a pardon so that he could vote. He explained, “I am a poor ignorant negro and I have no money to pay to the lawyers to work for me. So I have to depend on my friends to do all of my writing.”

The historical record shows that state and local governments have consistently failed, throughout the nation’s history, to enforce these laws in a fair and uniform way. Coordinating voter registration lists with criminal court records and pardon records — difficult in today’s world of information technology — was nearly impossible in the late nineteenth and early twentieth century. People who should have been able to vote were often denied the vote due to false allegations of disfranchising offenses; convictions were secured through suspect judicial processes prior to an election for partisan ends; and people who should have been disfranchised often voted. Sometimes these appear to have been honest mistakes made by officials charged with merging complicated statutory and constitutional requirements with voter registration data and court records. In many cases though, other agendas—partisan, racial, personal—seem to have been at work. In short, felon disfranchisement laws have long been subject to error and abuse.

Race both rationalized and motivated laws imposing lifelong disfranchisement for certain criminal acts in the post-Civil War period. Since then a variety of factors have led to the persistent sense, particularly in southern states, that individuals with prior criminal convictions are marked with a disgrace and contamination that is incompatible with full citizenship. Felon disfranchisement today preserves slavery’s racial legacy by producing a class of individuals who are excluded from suffrage, disproportionately impoverished, members of racial and ethnic minorities, and often subject to labor for below-market wages. In these six southern states, the ballot box is just as out of reach for former convicts as it was for enslaved African Americans two centuries ago.

Dr. Pippa Holloway is the author of Living in Infamy: Felon Disfranchisement and the History of American Citizenship, published Oxford University Press in December 2012. She is Professor of History at Middle Tennessee State University. Contemporary data comes from Christopher Uggen, Sara Shannon, Jeff Manza, “State-Level Estimates of Felon Disenfranchisement in the United States, 2010.”

 

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The Civil Rights Heroes the Court Ignored in The New York v. Sullivan

Garrett Epps

The Atlantic March 20, 2014

National Archives

I’m late to the 50th birthday party for New York Times v. Sullivandeliberately so. It’s no fun to be the sourpuss. Sullivan has been celebrated by top legal and media figures from the moment it was decided until its half-centenary this month. Alexander Meiklejohn, the philosopher, called it at the time “an occasion for dancing in the streets.” In his meticulous 1992 book, Make No Law: The Sullivan Case and the First Amendment, famed Supreme Court reporter Anthony Lewis wrote that the case “gave [the First Amendment’s] bold words their full meaning.” And a few weeks ago, University of Chicago Professor Geoffrey Stone wrote that, whatever its flaws, Sullivan “remains one of the great Supreme Court decisions in American history.” The New York Times itself, the winner of the case, congratulated the nation and the Court on “the clearest and most forceful defense of press freedom in American history.” I used to be a newspaper editor. I was dealing with libel threats at my college paper before I was old enough to vote. So I’m grateful for Sullivan’s broad protection of free speech and press. The Court’s decision defused an existential threat to press freedom—a systematic campaign (detailed well by Lewis in Make No Law) to drive the major networks and papers out of the South by using local libel laws to bleed or bankrupt them.  The Court was wise to stop that cold. And yet … and yet. There are some ghosts at the Sullivan feast.  Here are their names: Ralph David Abernathy, S.S. Seay Sr., Fred L. Shuttlesworth, and J.E. Lowery. These four black ministers fought against Southern apartheid—and though the fight in the end was won, these four men lost a great deal in the struggle. Their story is the underside of New York Times v. Sullivan, the part that the “post-racial” America of 2014 is not eager to remember. On March 29, 1960, The New York Times published an advertisement funded by Northern supporters of Martin Luther King and the Southern Christian Leadership Council, who were locked in a struggle to desegregate Montgomery, Alabama. Entitled “Heed Their Rising Voices,” it described a number of actions the city government had taken to thwart Civil Rights Movement protests and punish those who engaged in them. A few of the facts, however, were wrong—not surprising, given that it was written by Bayard Rustin, another Civil Rights hero who was not on the ground in Alabama. Rustin also signed the four ministers’ names to the advertisement—without notifying or consulting them. Days later, L.B. Sullivan, police commissioner of Montgomery, filed suit in a state court against both the Times and the ministers for supposedly defaming him. Even though he hadn’t even been named in the advertisement, the all-white jury awarded Sullivan the full half-million dollars he asked for. A few similar verdicts would have bankrupted even the Times; it pulled its reporters out of Alabama. Other cases were filed against other news organizations; Southern officials boasted publicly that they had found a tool to silence the hated Northern press. The four ministers were also adjudged liable for the full amount. The trial judge wouldn’t even allow them to move for a new trial. Alabama authorities seized their cars and land without waiting for their appeal. Even though both cases ended up in the Supreme Court, they were presented very differently. As Lewis notes dryly, “The Times petition did not emphasize the racial issue.” The issue, for the Times, was press freedom. The ministers’ lawyers, however, cited the shocking racial climate in the court—the jury was all white, the courtroom was forcibly segregated by the trial judge, the judge permitted Sullivan’s lawyers to use derogatory racial terms and refer to cannibalism in the Congo, and the judge refused to call the ministers’ black lawyers “Mister,” as he did Sullivan’s (and the Times’s) white ones. “[T]he jury had before it an eloquent assertion of the inequality of the Negro in the segregation of the one room, of all rooms, where men should find equality before the law,”  the ministers’ brief said. One of the lawyers, Samuel Pierce (later a member of Ronald Reagan’s Cabinet), told the Court, “it is difficult to see how there can be equal protection under the laws and due process in a court where there’s not even equality of courtesy or recognition of human dignity.” Judgment day for the ministers and the Times came on March 9, 1964. In a single opinion for the Court, Justice William Brennan wrote first, that “an otherwise impersonal attack on governmental operations” can never be defamatory of a government official who is not named in the attack, and, second, that even false statements of fact about public officials are protected by the First Amendment unless they are made with “actual malice.” That term means that the person making the statement must either know it is false or at least think it may be false; “pure heart, empty head” protects against libel of officials. Sullivan was and remains a triumph for the Times and the pressBut here is the opinion’s entire discussion of the ministers’ claims: “The individual petitioners contend that the judgment against them offends the Due Process Clause because there was no evidence to show that they had published or authorized the publication of the alleged libel, and that the Due Process and Equal Protection Clauses were violated by racial segregation and racial bias in the courtroom.” Because it had decided the First Amendment issue, Brennan wrote, “we do not decide the questions presented by the other claims of violation of the Fourteenth Amendment.” Am I the only one who wonders why a Court that was bold in defense of the press could not even mention segregation? Or to wince when the opinion relies on the words of a slaveholder, Thomas Jefferson? Am I the only one who remembers that Brennan, the liberal icon, told four brave men their issues were not worthy of address? L.B. Sullivan lives on in the case’s name. The ministers have disappeared. As a Southern-born white, I do not owe my freedom to The New York Times but to men like those four ministersAbernathy, Seay, and Shuttlesworth are dead, but Joseph Lowery, who is 90, gave the invocation at Barack Obama’s first inauguration.  The Times recorded his attendance at the commemoration of King’s “I have a dream speech” last August. But as far as I can tell, it did not give him any credit for its landmark free press victory. My point is not to skewer the Times, which I admireit is to remind us all that American history has a tendency to grow whiter over time. Know these names: Abernathy, Lowery, Seay, Shuttlesworth. Know the names of the other African Americans who risked (and sometimes lost) everything they had to free Americans of every race.  And by all means celebrate New York Times v. Sullivan. In some ways it really is an occasion for dancing in the streets. But perhaps we should not expect Joseph Lowery to dance. Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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Fifty years later, new accounts of its fraught passage reveal the era’s real hero—and it isn’t the Supreme Court.
Michael O’Donell
The Atlantic  March 19, 2014

President Johnson confronts Senator Richard Russell, the leader of the filibuster against the civil-rights bill. (Yoichi Okamoto/National Archives)

In the winter of 1963, as the Civil Rights Act worked its way through Congress, Justice William Brennan decided to play for time. The Supreme Court had recently heard arguments in the appeal of 12 African American protesters arrested at a segregated Baltimore restaurant. The justices had caucused, and a conservative majority had voted to decide Bell v. Maryland by reiterating that the Fourteenth Amendment’s equal-protection clause did not apply to private businesses like restaurants and lunch counters—only to “state actors.” The Court had used this doctrine to limit the reach of the Fourteenth Amendment since 1883. Brennan—the Warren Court’s liberal deal maker and master strategist—knew that such a decision could destroy the civil-rights bill’s chances in Congress. After all, the bill’s key provision outlawed segregation in public accommodations. Taxing his opponents’ patience, he sought a delay in order to request the government’s views on the case. He all but winked and told the solicitor general not to hurry.

And then the conservatives on the Court lost their fifth vote. Justice Tom Clark changed his mind and circulated a draft opinion granting the appeal. In a revolutionary constitutional change, lunch counters and restaurants would suddenly be liable if they violated the equal-protection clause. But Brennan foresaw a new difficulty. By now it was June 1964, and a coalition of northern Democratic and Republican senators looked set to break a southern filibuster and pass a strong civil-rights bill. Would a favorable Supreme Court ruling actually give wavering senators an excuse to vote no? They might say there was no need for legislation because the Court had already solved the problem. So Brennan, ever nimble, engineered a tactical retreat by assembling a majority that avoided the merits of the case altogether. It was an alley-oop to the political branches. They grabbed the ball and dunked it. Ten days after the Court’s decision, Congress passed the Civil Rights Act and the president signed it into law.

In the popular imagination, the Supreme Court is the governmental hero of the civil-rights era. The period conjures images of strong white pillars, Earl Warren’s horn-rims, and the almost holy words Brown v. Board of Education. But in Bell, the Court vindicated civil rights by stepping aside. As Bruce Ackerman observes in The Civil Rights Revolution, Brennan realized that a law passed by democratically elected officials would bear greater legitimacy in the South than a Supreme Court decision. He also doubtless anticipated that the act would be challenged in court, and that he would eventually have his say. The moment demonstrated not merely cooperation among the three branches of government, but a confluence of personalities: Brennan slowing down the Court, President Johnson leaning on Congress to hurry up, and the grandstanders and speechmakers of the Senate making their deals, Everett Dirksen and Hubert Humphrey foremost among them. In this age of obstruction and delay, it is heartening to recall that when the government decides to act, it can be a mighty force.

But three equal branches rarely means three equal burdens, and the civil-rights era was no exception. Although the Court-centered narrative undervalues the two political branches, of those two branches it was the executive that provided decisive leadership in the 1960s. Just as the intragovernmental cooperation of 1964 is striking in light of today’s partisan gridlock, the presidential initiative displayed during the mid-’60s is worth considering in light of Barack Obama’s perceived hands-off approach to lawmaking. Of course, no discussion of civil-rights leadership is complete without including Martin Luther King Jr., who provided moral and spiritual focus, infusing the movement with resolution and dignity. But the times also called for a leader who could subdue the vast political and administrative forces arrayed against change—for someone with the strategic and tactical instincts to overcome the most-entrenched opponents, and the courage to decide instantly, in a moment of great uncertainty and doubt, to throw his full weight behind progress. The civil-rights movement had the extraordinary figure of Lyndon Johnson.

The Civil Rights Act turns 50 this year, and a wave of fine books accompanies the semicentennial. Ackerman’s is the most ambitious; it is the third volume in an ongoing series on American constitutional history called We the People. A professor of law and political science at Yale, Ackerman likens the act to a constitutional amendment in its significance to the country’s legal development. He acknowledges the Supreme Court’s leadership during the 1950s, when President Eisenhower showed little enthusiasm for civil rights, and when Congress passed the largely toothless Civil Rights Act of 1957. During those same years, the Court spoke with a loud, clear voice, unanimously deciding Brown, which ordered the desegregation of schools, and Cooper v. Aaron, which held that state segregation laws conflicting with the Constitution could not stand. But the Supreme Court does not command the National Guard or control the budget. Someone needed to enforce those decisions in the defiant South. That is why, Ackerman writes, “the mantle of leadership passed to the president and Congress,” beginning with the 1964 law.

But the political branches ventured into the fray only in the last weeks of 1963. President Kennedy had introduced the bill in June of that year with much ambivalence. As Todd S. Purdum, a senior writer at Politico, recounts in An Idea Whose Time Has Come, Kennedy had led a sheltered life in matters of race. While generally sympathetic to civil-rights ideals, he “believed that strong civil rights legislation would be difficult if not impossible to pass, and that it could well jeopardize the rest of his legislative program.” He had tried to attack literacy tests and other barriers to voting with legislation but had twice been defeated in the Senate, where the old bulls of the South wielded the filibuster with practiced skill. (Roy Wilkins of the NAACP observed, “Kennedy was not naïve, but as a legislator he was very green.”) He regarded Martin Luther King Jr. warily, and with each new southern crisis saw his agenda slipping away. But events finally forced Kennedy to act. The Freedom Riders in Montgomery, the dogs and water cannons in Birmingham, and the sit-in in Jackson all made further equivocation on civil rights impossible by the spring of 1963. Four hours after Kennedy’s speech calling for legislation, an assassin murdered the NAACP organizer Medgar Evers in his own driveway. Five months after that, the bill was stuck in the House Rules Committee—“the turnstile at the entry to the House of Representatives,” in Purdum’s phrase—and the country had a new president.

In 1963, the Reverend Joseph Carter (far left) was the first African American in his Louisiana parish to register to vote. He was jeered as he walked down the courthouse steps. (Bob Adelman/Corbis)

Purdum, whose book is an astute, well-paced, and highly readable play-by-play of the bill’s journey to become a law, describes the immense challenges facing Lyndon Johnson after Kennedy’s assassination. “When it came to civil rights, much of America was paralyzed in 1963,” he writes. That certainly included Congress. The civil-rights bill, which had been languishing in the House since June, had no hope of coming to a full vote in the near future, and faced even bleaker prospects in the Senate. In fact, Kennedy’s entire legislative program was at a standstill, with a stalled tax-cut bill, eight stranded appropriations measures, and motionless education proposals. And Congress was not Johnson’s only problem. He also had to ensure the continuity of government, reassure the United States’ allies, and investigate Kennedy’s assassination. Purdum’s version of this story is excellent, but he cannot surpass the masterful Robert A. Caro, who offers a peerless and truly mesmerizing account of Johnson’s assumption of the presidency in The Passage of Power.

Days after Kennedy’s murder, Johnson displayed the type of leadership on civil rights that his predecessor lacked and that the other branches could not possibly match. He made the bold and exceedingly risky decision to champion the stalled civil-rights bill. It was a pivotal moment: without Johnson, a strong bill would not have passed. Caro writes that during a searching late-night conversation that lasted into the morning of November 27, when somebody tried to persuade Johnson not to waste his time or capital on the lost cause of civil rights, the president replied, “Well, what the hell’s the presidency for?” He grasped the unique possibilities of the moment and saw how to leverage the nation’s grief by tying Kennedy’s legacy to the fight against inequality. Addressing Congress later that day, Johnson showed that he would replace his predecessor’s eloquence with concrete action. He resolutely announced: “We have talked long enough in this country about equal rights. We have talked for 100 years or more. It is time now to write the next chapter, and to write it in the books of law.”

President Johnson talks with civil-rights leaders in the Oval Office in January 1964. From left: Martin Luther King Jr., LBJ, Whitney Young, and James Farmer. (Yoichi Okamoto/AP)

The New York Times journalist Clay Risen contends in The Bill of the Century that Johnson’s contribution to the Civil Rights Act’s success was “largely symbolic.” One might say the same thing about Neil Armstrong’s walk on the moon. Sometimes symbolism is substance—especially where the presidency is concerned. The head of the executive branch firmly seized the initiative, taking up a moribund bill addressing the nation’s most agonizing problem. Here was Johnson, president for only five days, working out of the Executive Office Building because the White House was still occupied by Kennedy’s family and staff, with an election already looming less than a year away. Instead of proceeding tentatively, as most anyone in those circumstances would have done, he radiated decisiveness, betting everything he had right after he got it. As Caro shows so persuasively, from that moment, Johnson’s urgency and purpose infused every stage of the bill’s progress. And in the days and weeks that followed, the stagnant cloud that had settled over Kennedy’s agenda began to lift.

Symbolism was the least of it. Johnson took off his jacket and tore into the legislative process intimately and tirelessly. As the former Senate majority leader, he knew his way around Capitol Hill like few other presidents before him—and none since. The best hope of moving the civil-rights bill from the House Rules Committee—whose segregationist chairman, Howard Smith of Virginia, had no intention of relinquishing it—was a procedure called a “discharge petition.” If a majority of House members sign a discharge petition, a bill is taken from the committee, to the chagrin of its chairman. Johnson made the petition his own personal crusade. Even Risen credits his zeal, noting that after receiving a list of 22 House members vulnerable to pressure on the petition, the president immediately ordered the White House switchboard to get them on the phone, wherever they could be found. Johnson engaged an army of lieutenants—businessmen, civil-rights leaders, labor officials, journalists, and allies on the Hill—to go out and find votes for the discharge petition. He cut a deal that secured half a dozen votes from the Texas delegation. He showed Martin Luther King Jr. a list of uncommitted Republicans and, as Caro writes, “told King to work on them.” He directed one labor leader to “talk to every human you could,” saying, “if we fail on this, then we fail in everything.”

The pressure worked. On December 4—not two weeks into Johnson’s presidency—the implacable Chairman Smith began to give way. Rather than have the bill taken from his committee, he privately agreed to begin hearings that would conclude before the end of January, and then release the bill. Smith looked set to renege on his agreement in the new year, but reluctantly kept his word, allowing the bill to be sent to the full House on January 30, 1964. Risen credits others with this development, suggesting that it was Representative Clarence Brown of Ohio, a Republican member of the Rules Committee, among others, who got Smith to move. Risen is particularly sharp on the evolution of the Republicans during these tumultuous years, but here he accords them too much clout. Brown had to answer to House Republican Leader Charles Halleck of Indiana, whose support Johnson likely bought by proposing, and then personally securing, a NASAresearch facility at Purdue University, in Halleck’s district. And the entire Republican caucus in the House was wilting under Johnson’s relentless and very public campaign to portray “the party of Lincoln” as obstructing civil rights by opposing the discharge petition.

Johnson kept the bill moving in the Senate by dislodging President Kennedy’s tax-cut bill from the Finance Committee. As vice president, Johnson had advised Kennedy not to introduce civil-rights legislation until the tax cut had cleared Congress. Kennedy didn’t listen, and now both bills were stuck. (Like House Rules, Senate Finance had a wily segregationist for a chairman: Harry Byrd of Virginia.) Risen minimizes the significance of this problem, writing that the tax bill “presented no procedural obstacle to the civil rights bill, only a political one.” (And when does politics ever derail legislation?!) As Caro explains, the tax bill was a hostage. By holding it in committee, the South pressured the administration to give up on civil-rights legislation, with the implication that the withdrawal of the latter might produce movement on the former. But Johnson and Byrd were old friends, and during an elaborate White House lunch they came to an understanding: if Johnson submitted a budget below $100 billion, Byrd would release the tax bill. Johnson then personally bullied department heads to reduce their appropriations requests, and delivered a budget of $97.9 billion. The Finance Committee passed the tax bill on January 23, 1964, with Byrd casting the deciding vote to allow a vote, then weighing in against the measure itself. The Senate passed the tax bill on February 7, mere days before the civil-rights bill cleared the House.

Finally, Johnson helped usher the bill to passage in the Senate by working to break the southern filibuster, which was led by his political patron, the formidable Richard Russell of Georgia. In light of the Senate’s fiercely guarded independence, the president could not operate in the open; he had to use proxies like Humphrey, who was his protégé and future vice president, as well as the bill’s floor manager. Johnson impressed upon Humphrey that the vain and flamboyant Senate Republican Leader Everett Dirksen of Illinois was the key to delivering the Republican votes needed for cloture:

“You and I are going to get Ev. It’s going to take time. We’re going to get him. You make up your mind now that you’ve got to spend time with Ev Dirksen. You’ve got to let him have a piece of the action. He’s got to look good all the time. Don’t let those [liberal] bomb throwers, now, talk you out of seeing Dirksen. You get in there to see Dirksen. You drink with Dirksen! You talk with Dirksen! You listen to Dirksen!”

Johnson demanded constant updates from Humphrey and Majority Leader Mike Mansfield, and always urged more-aggressive tactics. (“The president grabbed me by my shoulder and damn near broke my arm,” said Humphrey.) Even though Senate Democrats did not deploy all those tactics, Johnson’s intensity nevertheless set the tone and supplied its own momentum. He kept up a steady stream of speeches and public appearances demanding Senate passage of the strong House bill, undiluted by horse-trading. And he personally lobbied senators to vote for cloture and end the filibuster. Risen contends that Johnson “persuaded exactly one senator” to change his vote on cloture. Given that it is of course impossible to know what motivated each senator’s final decision, this lowball figure is expressed with too much certitude. Evidence presented by Purdum and Caro suggests that Johnson’s importuning, bribing, and threatening may have made an impact on closer to a dozen. The Senate invoked cloture on June 10, breaking the longest filibuster in the institution’s history. The full Senate soon passed the bill. Johnson signed it into law on July 2, 1964, and immediately turned his energies to what would become another landmark statute: the Voting Rights Act of 1965.

Risen’s attempt to minimize Johnson’s significance in the passage of the Civil Rights Act—“he was at most a supporting actor”; “he was just one of a cast of dozens”; “the Civil Rights Act was not his bill by any stretch”—is perplexing. In an otherwise strong book, his revisionist view is less a question of facts than of emphasis: after all, Purdum too notes that Johnson “strategically limit[ed] his own role” at key moments (careful, for example, not to upstage Dirksen). But Risen seems bent on denying Johnson his due, drawing nearly every inference against him and repeatedly overstating the anti-Johnson case. On the one hand, Risen is right to take a fresh look at the evidence and tell the story from a new perspective, focusing on unsung heroes such as Dirksen, Humphrey, Representative William McCulloch, and Nicholas Katzenbach of the Justice Department. He makes a fair point in questioning the way history awards presidents the credit for measures that by necessity cross many desks. On the other hand, Risen is simply wrong to portray Johnson as some hapless operator for trying multiple tactics and targets, some of them unsuccessfully. Johnson’s very comprehensiveness is what jarred the sluggish and paralyzed Capitol into action and ultimately moved the bill.

President Johnson signs the Civil Rights Act into law on July 2, 1964. (Cecil Stoughton/White House Press Office)

If the president led and Congress followed, where did that leave the Supreme Court? Three months after Johnson signed the Civil Rights Act, the Court heard arguments in a pair of cases challenging the constitutionality of its most contentious provision—Title II, which outlawed segregation in public accommodations. In December 1964 the Court decided Katzenbach v. McClungand Heart of Atlanta Motel v. United States, upholding Title II as a valid exercise of Congress’s commerce power. In the years since, the act has been a remarkable success. Its acceptance in the South was surprisingly quick and widespread. In a stroke, the act demolished the rickety but persistent foundation for segregation and Jim Crow. Title II reached far into the daily lives of southerners, creating an unprecedented level of personal mingling between the races and making integration a fact of daily life. Title VII, meanwhile, has vastly reduced workplace discrimination, through the efforts of the Equal Employment Opportunity Commission. Although years of toil, struggle, and bloodshed still lay ahead, the 1964 law dealt a major blow to the system of segregation. The past 50 years of American history are almost unimaginable without it.

And yet the anniversary prompts an ominous reconsideration of the Supreme Court’s role in civil rights. In 1954, the Court launched the federal government’s assault on segregation, with Brown. In 1964, it got out of the way of the political branches, then quickly ratified their work. Today when it comes to racial civil rights, the Roberts Court is an aggressively hostile force. Recall Ackerman’s contention that the 1964 act has taken on the weight of a constitutional amendment. At a literal level, this is of course untrue: the act was not ratified by three-quarters of the states and is not part of the written Constitution. This means that a constitutional amendment is not needed to overturn the Civil Rights Act, which is vulnerable to a subsequent act of Congress or, more to the point, a decision by the Supreme Court.

Ten years ago, even mentioning this possibility would have seemed outrageous. But last June, the Court decided Shelby County v. Holder, striking down Section 4(b) of the Voting Rights Act of 1965 as unconstitutional. Section 4(b) listed the states with a history of voting discrimination that were required to seek preclearance from the Justice Department or the courts before amending their voting laws. The 5–4 decision by Chief Justice John Roberts is nothing short of appalling: as unpersuasive as it is misguided, it is, in Ackerman’s words, “a shattering judicial betrayal” of the civil-rights era. It is also the Roberts Court’s most brazenly activist decision: Congress has reauthorized the Voting Rights Act four times, most recently in 2006, with votes of 390–33 in the House and 98–0 in the Senate. In her brilliant dissent, Justice Ruth Bader Ginsburg summed up the decision’s obtuseness: “Throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Shelby County may be so unique that it portends no harm for the Civil Rights Act. After all, the preclearance regime was extraordinarily invasive. Ackerman calls it the biggest federal intrusion into the prerogatives of the southern states since Reconstruction. But Title II of the Civil Rights Act is also strong medicine, reaching beyond state actors to tell private businesses whom they must serve. It was by far the act’s most controversial provision—and it remains controversial among some conservatives. In 2010, Senator Rand Paul caused a sensation by arguing that the provision in the Civil Rights Act dealing with “private business owners” (ostensibly Title II) is unconstitutional. He quickly walked back his comments, but his father, Ron Paul, proudly continues to make the same argument, and the Tea Party is listening. The Heritage Foundation’s Web site files the McClung decision upholding Title II on its “Judicial Activism” page, tagged to the terms Abusing Precedent and Contorting Text. The Voting Rights Act decision can only embolden Title II’s opponents.

And they just might get a hearing. Three trends in the Roberts Court’s jurisprudence suggest that the justices would be more receptive to a challenge to Title II than any prior Court. First is its disregard for precedent. The Roberts Court has repeatedly ignored prior decisions when doing so enabled a conservative victory—most notoriously in the areas of gun regulation (District of Columbia v. Heller) and campaign finance (Citizens United v. Federal Election Commission). Hence it is little comfort that the Court upheld Title II in 1964. It had also previously upheld the Voting Rights Act and its reauthorizations. Second is the Roberts Court’s impatience with open-ended civil-rights measures, which some justices believe are no longer necessary. “The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years,” the Court wrote in Shelby County, dismissing the need for ongoing vigilance against voting discrimination. And third is the Court’s continued disdain for the commerce clause. Remember when Roberts’s decision upholding the Affordable Care Act made the point that the act was not a valid exercise of Congress’s commerce power? He was singling out the section of the Constitution that supports the Civil Rights Act.

The 1964 law is not in imminent danger from the Supreme Court. But it is worth considering how a hostile Court changes the equation from 1964, when the judiciary acted in concert with the political branches. The new paradigm places a premium on presidential leadership, at the very least in nominating judges and justices who are in sympathy with the great statutes of the 1960s. But the battle over the Civil Rights Act shows that presidents who are serious about concrete social progress must do even more.

Lyndon Johnsons, of course, do not come along every four or every 40 years. Even if they did, Johnson brought plenty of darkness (election stealing, a credibility gap, Vietnam) along with the light (Civil Rights Act, Voting Rights Act, Great Society). Moreover, not every president needs to be a legislative genius in order to pass laws. Obama, after all, gambled big on the Affordable Care Act, investing the same type of capital in health care that Johnson invested in civil rights. It is now the law of the land. But the energy and purpose that Johnson brought to the Civil Rights Act struggle remains inspiring, and is a model for all presidents. As Richard Russell, the South’s leader in the Senate during the 1960s, put it to a friend a few days after Kennedy’s assassination: “You know, we could have beaten John Kennedy on civil rights, but not Lyndon Johnson.”

Michael O’Donnell is a lawyer in Chicago. His writing has appeared in The Wall Street Journal, The Nation, and The Washington Monthly.

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Nina Simone: The Antidote to the “We Shall Overcome” Myth of the Civil Rights Movement 

by Ruth Feldstein

HNN   March 3, 2014

 

When it comes to civil rights, it is the season of fiftieth anniversaries: this past June was the fiftieth anniversary of the murder of activist Medgar Evers. In August, Americans marked fifty years since the March on Washington, and in September, the horrific deaths of Addie Mae Collins, Denise McNair, Carole Robertson and Cynthia Wesley, four young girls killed when Ku Klux Klan members planted a bomb at the 16th Street Baptist Church in Birmingham, Alabama. The months ahead will bring the fiftieth anniversary of Mississippi Freedom Summer; the brutal murder by members of the Ku Klux Klan in Mississippi of civil rights workers James Chaney, Andrew Goodman, and Michael Schwerner; and in July, passage of the Civil Rights Act.

For many Americans, these anniversaries — of both heady times and painful moments — are ultimately reassuring. Yes, the country was wracked by violence, as African Americans were subjected to bombings, beatings, dogs, hoses, and murder. But the now-iconic image of King at the March on Washington, and a story of civil rights that culminates in passage of landmark legislation, affirm success. As President Obama put it in September when he commemorated the murder of four young girls in Birmingham, the bombing had “galvanized Americans all across the country to stand up for equality and broadened support for a movement that would eventually lead to the passage of the Civil Rights Act of 1964.”

But there are other anniversaries worth remembering that offer another narrative of the civil rights movement, one easy to overlook. Perhaps not surprisingly, this narrative is a less comfortable one, illuminating the difficult feelings about racism, the dashed dreams, and the demands for autonomy that were evident in black communities — in the north as well as the south — during black freedom struggles. In March and April of 1964, singer/songwriter Nina Simone gave several performances at Carnegie Hall. In Concert, the seven-song album that came from these recorded concerts, marked a crucial transition in Simone’s career: the Southern-born and classically-trained musician, known for her “supper club” music and as a “songstress for the elite,” engaged directly with the politics of black liberation, and became one of the entertainers most closely associated with black activism. In “Pirate Jenny” Simone took Kurt Weill and Bertholt Brecht’s song about class relations in London and transformed it into a poor black woman’s fantasy of vengeance against white townspeople in a “crummy southern town.”

In “Go Limp,” she spoofed the sexual antics among nonviolent civil rights protesters, and thus spoofed nonviolence itself; in “Old Jim Crow,” she declared that Jim Crow had “been around too long” and “was all over now.”

The album reached its musical, lyrical and political peak with track 7, “Mississippi Goddam.” Simone had written the song several months earlier, in September, just after hearing about the church bombing in Alabama. (She later said that it came to her in a “rush of fury, hatred and determination” as she “suddenly realized what it was to be black in America.”) “Mississippi Goddam” was a political anthem. With an upbeat tempo, the “show tune,” as Simone described it, offered incendiary lyrics filled with anger, despair, and insistence. “Me and my people are just about due,” sang Simone, with urgency. She rejected the notion that race relations could change gradually; she discarded the myth that discrimination only existed in the South; and she shattered the assumption that African Americans would patiently use the legislative process to seek political rights. As she declared toward the end of “Mississippi Goddam”:

But this whole country is full of lies
You’re all gonna die and die like flies
I don’t trust you anymore
You keep on saying “Go Slow.”

Coming less than a month after the March on Washington for Jobs and Freedom in Washington, D.C. and Martin Luther King’s now-iconic “I have a dream” speech, Nina Simone provocatively departed from conventional wisdom about civil rights. The anniversary of this album matters because in a moment that many people today remember as the high water mark of liberal, interracial, church-based activism that culminated in passage of landmark civil rights legislation, Simone imagined another kind of black freedom, one that a few years later, would widely be known as black power. Contrary to the neat historical trajectories which suggest that black power came late in the decade and only after the “successes” of earlier efforts, Simone’s album makes clear that black power perspectives were already taking shape and circulating widely — in organizations, but also on vinyl albums that music fans played around the world. Tied inexorably to the March on Washington and the church bombing in Birmingham, In Concert is an album that expressed, and helped to transform black activism in the 1960s.

Nina Simone was not a solitary figure, and the album that she recorded fifty years ago did not come out of nowhere. In Concert is a window into a world beyond prominent, now-celebrated leaders (mostly male), and public protests. Hers are not the melodies that crowds have recuperated at recent fiftieth anniversary celebrations. But to remember In Concert is to remember that “civil rights” never meant just one kind of activism and that “We Shall Overcome” was not the only soundtrack to the movement. To mark this anniversary is to mark the swirling and contradictory ways Americans from all walks of life envisioned freedom in the early 1960s, and the ways that they expressed these political demands imaginatively as well as with marches and boycotts.

Ruth Feldstein is Associate Professor of History at Rutgers University, Newark and the author of How it Feels to Be Free: Black Women Entertainers and the Civil Rights Movement.

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Rosa Park´s Official Arrrest Report: She refused to give bus seat to white man 58 years ago today

Valerie Strauss

The Washington Post  December 1, 2013

Here’s a piece of history: the arrest report from Montgomery, Ala., police for Rosa Parks on Dec. 1, 1955, the day she rode a  Montgomery city bus and refused to get up and move to the back of the bus so a white man could take her seat, as she was expected to in that era of segregation. She was arrested, and in the process, helped launch a new era in the American civil rights movement.

(The National Archives)

(The National Archives)

Parks was a seamstress in Alabama and a civil rights activist, but she said after the incident that she had not pre-planned it. She was convicted of violating a law mandating segregation on city buses and fined. She appealed as civil rights activists organized a boycott of Montgomery buses — coordinated by the Montgomery Improvement Association of which a 26-year-old minister named Martin Luther King Jr. was president — that lasted 13 months. It ended when the Supreme Court ruled that it was unconstitutional to require segregation on public buses.

Rosa Parks became known as “the mother of the civil rights movement.”

(The National Archives)

(The National Archives)

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