WITHOUT THE RIGHT TO VOTE, NO OTHER RIGHT IS secure. That was precisely what white supremacists in the South desired, and that is what they achieved.
When Georgia became the last of the secessionist states to draft a new constitution in 1908, each of the eleven had instituted a poll tax, generally assessed on a running total, and most in combination with a grandfather clause. Seven demanded literacy tests. Each constitution was facially neutral, but each managed to become the vehicle by which only African Americans were stricken from the voting rolls. By 1908, 83 percent of white males in the South were registered to vote, compared to 2 percent of black men. As the South sank into one-party Democratic rule, laws mandating white primaries became widespread, so votes in general elections by the few African Americans who had slipped through the net were certain to be meaningless. Although the grandfather clause was finally struck down in 1915 in Guinn v. United States, and the white primary in Smith v. Allwright in 1944—the Court very belatedly beginning to rouse itself to the obvious—by that point black Americans had been so frozen out of the political process that white supremacists had little difficulty replacing the grandfather clause with some equally transparent and discriminatory rule, or relying on some contrivance other than the white primary to achieve the same end.
With voting rights denied, Southern state governments proceeded to segregate virtually every aspect of public life. Georgia passed a Public Park Law in 1905, and within a few years people of color were excluded from virtually all park facilities throughout the South. Forced segregation was soon mandated at factory entrances, pay windows, movie theaters, restaurants, on streetcars and railroads, in grocery stores, taverns, and especially schools, cemeteries, and public toilets. By 1910, African Americans had been effectively herded out of the white South into decrepit, slum-ridden ghettos called “Darktowns.” To postulate that the Jim Crow restrictions were as severe as those for slaves would not be an exaggeration.
As all this transpired, and while politicians such as Ben Tillman and James Vardaman were extolling their achievements, the justices of the Supreme Court contented themselves with taking refuge in parsing language, debating the meaning of this clause or that, or deciding whether or not a definition of a term meant what it said or something else. They pretended not to notice that in the nation for which they were the highest authority on what the Constitution meant and how it was administered, their fellow citizens were being brutalized and murdered. Between 1890 and 1903, 1,889 lynchings were conducted in the United States. In 1,405 of those cases, the victims were black. According to records compiled by Booker T. Washington’s Tuskegee Institute, 70 to 80 percent of those lynchings occurred in the South.
One of the most important tools for those who analyze the law, either from the bench or in the classroom, is logic. Sometimes directly, sometimes tortuously, they wend their way through the densest rhetoric, examining arguments for logical flaws, from which they may then base a decision to arrive at, to quote John Marshall, “what the law is.” But there is a flaw in formal logic that is not often cited in legal analysis—reductio ad absurdum, an argument that appears to follow all the rules but leads to an absurd conclusion. And the conclusion that the Fourteenth and Fifteenth Amendments had no power to prevent the horrors of Jim Crow, that the Supreme Court of the United States had no choice but to allow tens of millions of qualified citizens to be deprived of the most basic rights of citizenship, especially the right to have a voice in their destiny, is just that—absurd.
All this leads to the biggest question of all—is the law merely language or is it also an idea? Is the American Constitution only a series of articles, sections, and clauses, or is it something larger than that, an attempt to devise a government that will guarantee fundamental justice? Will there be times when simply breaking down language to try to come to a definition will defeat that goal of equal justice for all? The Constitution has been amended for more than two centuries, but was it to better define language or to better define justice?
Those who believe that the law must be based in language, often referred to these days as “textualists,” insist the objectivity of the words on the page is the only fair way to administer justice. Once subjectivity is introduced, the standards of justice can change from person to person, from moment to moment. As the late Justice Antonin Scalia noted in a 1996 speech, “I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”
But “fairly understood meaning” is subjective in itself. The Constitution, as every textualist knows but few will admit, is notoriously and often deliberately vague. For example, in Article I, Section 8, which grants explicit powers to Congress, the final clause reads, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” How could there possibly be a “fairly understood meaning,” a quantifiable, objective meaning, of “necessary and proper”? The phrase defies objectivity, as language often does.
False objectivity, however, is precisely what the nine justices relied on to allow white supremacists to rob African Americans of their rights, to allow the United States to become the land of quasi-slavery, to permit the oppression of United States citizens as if they were still property. What Americans should never forget is that the right to vote should never be taken for granted, never assumed to be “just there,” because it is never “just there.” Remaining a nation that values freedom and justice requires that all Americans insist that their fellow citizens, no matter what their race, gender, religion, or political belief, be allowed to participate in choosing the nation’s leaders.
It is a simple rule, one ordinary citizens, elected officials, and especially Supreme Court justices should not forget.