>Over time, I've discussed why I think progressive use of the courts
>is dangerous and why judicial review has historically been one of
>the worst evils of our country's history.
>
>I thought I would distribute a link to a new paper I co-wrote for
>the Brennan Center for Justice, which is called "A New Birth of
>Freedom: The Forgotten History of the 13th, 14th and 15th
>Amendments" http://www.brennancenter.org/resources/ji/ji5.pdf
>
>The overall theme is that the present court is using judicial review
>to attack a range of federal civil rights laws and are replicating
>the history from the 19th century when the courts killed
>Reconstruction.
Nathan, you draw a wrong lesson from your own paper, if you focus your fire on courts and judicial review. As you write yourself, "The ultimate bulwark of white supremacy was _violence_" (emphasis added, Nathan Newman and J. J. Gass, "A New Birth of Freedom: The Forgotten History of the 13th, 14th, and 15th Amendments," 2004, <http://www.brennancenter.org/resources/ji/ji5.pdf>, p. 16), and what sealed the fate of Blacks was that "control of federal power shifted from pro-civil-rights Radical Republicans to _the party's pro-business faction_" (emphasis added, p. 19):
<blockquote>The ultimate bulwark of white supremacy was violence. A vigorous federal response had beaten back murder and terrorism before the 1872 election, but by the 1874 and 1876 elections, scores of blacks and allied white Republicans lay dead as anti-civil-rights Democrats returned to power throughout the South. Federal prosecutions dropped off sharply, and the cases that were brought became harder to win because of interference from southern officials and private individuals. State governments systematically harassed and arrested federal witnesses to deter their participation, even convicting them of perjury for testimony given at federal trials. Federal witnesses were murdered quite regularly. The bloodbath climaxed with the disputed presidential election of 1876, with most southern states reporting two sets of results. The dispute was resolved by Republicans' agreement to end Reconstruction. . . .
With civil rights enforcement all but shut down from 1873 onwards, Reconstruction governments were driven from office throughout the South. Violence destroyed the Republican Party in Mississippi. Taking advantage of the void, Democrats recaptured the legislature and impeached the Republican governor and lieutenant governor, driving them from office by force of arms. Similar violence would "redeem" every state in the region, to use the term adopted by white supremacists. In 1876, Confederate General Matthew Butler led a white mob to murder an opposing black militia defending the South Carolina government -- and was then elected to the United States Senate by the new, "redeemed" legislature. The effects on the federal government were almost as dramatic, as pro-civil-rights Republican representatives and senators were replaced by anti-civil-rights Democrats -- sufficient in number, as their successors proved in the mid-twentieth century, to filibuster meaningful civil rights legislation, even when a majority of the country supported it.
The final blow to Reconstruction was the presidential election of 1876. With the black vote suppressed throughout the South, Democrat Samuel Tilden won a majority among those allowed to vote. A commission, including five justices of the Supreme Court, was appointed to resolve the ensuing dispute over the electoral college vote. The political parties cut a deal: Republican Rutherford B. Hayes would become President in exchange for the end of Reconstruction. Hayes ensured that federal troops would not return to the South to enforce civil rights by signing the Posse Comitatus Act, banning the military from "execut[ing] the laws."33 Barely two decades had passed since the Attorney General had authorized the military to "execute" the Fugitive Slave Act. Recognizing that the Supreme Court had made contesting elections in the South impossible, northern Republicans essentially conceded the end of the New Birth of Freedom. Murder and disfranchisement would be the fate of blacks fighting for civil rights in the South for the next ninety years. This did not mean that the Republican Party renounced the use of federal power in general, or even of military power for domestic law enforcement. Rather, control of federal power shifted from pro-civil-rights Radical Republicans to the party's pro-business faction. (pp. 16, 19)</blockquote>
In its neoliberal turn, the Democratic Party's pro-business faction behaved exactly in the same way as the Republican Party's pro-business faction did in sacrificing the party's pro-civil-rights wing and its constituency. The presidential elections of 2000 and 2004 remind many a Black of the presidential election of 1876!
<blockquote>Popular culture has a similar hole. There have been many movies about the Civil War, but few of note about its aftermath, apart from the anti-Reconstruction epics _Gone with the Wind_ and _Birth of a Nation_. If we remember whites who fought for civil rights in the South at all, it is as the rapacious "carpetbaggers" at the gates of Tara. Ken Burns's acclaimed documentary series _The Civil War_ never uttered the word "Reconstruction." Burns mentioned President Grant's administration once -- concerning the Credit Mobilier scandal, not Grant's fight against Klan violence. (pp. 30-31)</blockquote>
We need to make a film out of Charles Waddell Chesnutt's _The Marrow of Tradition_: <http://docsouth.unc.edu/chesnuttmarrow/chesmarrow.html> (cf. <http://library.uncwil.edu/subject/History/Guides/1898.html>). -- Yoshie
* Critical Montages: <http://montages.blogspot.com/> * Greens for Nader: <http://greensfornader.net/> * Bring Them Home Now! <http://www.bringthemhomenow.org/> * OSU-GESO: <http://www.osu-geso.org/> * Calendars of Events in Columbus: <http://sif.org.ohio-state.edu/calendar.html>, <http://www.freepress.org/calendar.php>, & <http://www.cpanews.org/> * Student International Forum: <http://sif.org.ohio-state.edu/> * Committee for Justice in Palestine: <http://www.osudivest.org/> * Al-Awda-Ohio: <http://groups.yahoo.com/group/Al-Awda-Ohio> * Solidarity: <http://www.solidarity-us.org/>