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SCOTUS CHANNELS JIM CROW JURISPRUDENCE  
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James Downie
July 4, 2024
MSNBC
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_ The spirit and reasoning of the majority in Trump v. U.S. immunity
case evokes the worst of post-Civil War jurisprudence. _

US Supreme Court, by zacklur (CC BY-NC-SA 2.0)

 

“We are writing a rule for the ages,” Supreme Court Justice Neil
Gorsuch declared this year during oral arguments in Trump v. United
States
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Little did the country know then that Gorsuch’s statement was more
than a prediction; it was a threat. On Monday, the court’s
conservative majority
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led by Chief Justice John Roberts, ruled that the president has at
least presumptive immunity for all official acts and absolute immunity
for “the exercise of his core constitutional powers.” As
dissenting Justice Sonia Sotomayor concluded
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“in every use of official power, the President is now a king above
the law.”

Much has already been written
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Trump v. U.S. in the context of recent political history
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marking the decision as another sweeping victory
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the conservative legal movement and more specifically the theory of
a unitary executive with nigh unlimited powers
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But there is another chilling parallel — one that goes back to the
end of Reconstruction and the rise of Jim Crow.

The immunity ruling ignores both the plain text of the Constitution
and the historical evidence of its authors' intent.

In April 1873, a mob of armed white men surrounded the Grant Parish
Courthouse in Colfax, Louisiana
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Two months earlier, a federal judge had declared the
pro-Reconstruction Republicans the winners in the previous fall’s
disputed gubernatorial elections. White supremacists violently
revolted across the state; in Colfax, Black freedmen gathered at the
courthouse to protect the local officials from anti-Reconstruction
Democrats looking to seize power. On Easter Sunday, the white
mob advanced on the freedmen
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They ignored a flag of surrender, set the courthouse ablaze
and butchered 57 to 80 Black Americans
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It was, wrote historian Eric Foner
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“the bloodiest single instance of racial carnage in the
Reconstruction Era.” The federal government brought indictments
under the Enforcement Act of 1870 and managed to convict three men of
conspiring to violate the victims’ civil rights, including the right
to freedom of assembly and the right to keep and bear arms. If the
idea of a “conspiracy to violate rights” sounds familiar, it’s
because the same law and the same charge
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at the heart of the election interference case against Donald Trump.

But in 1876, in Cruikshank v. U.S.
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the Supreme Court annulled the convictions. The five-member majority
bafflingly denied that the freedmen had been killed “on account of
their race or color.” Furthermore, it ruled that the 14th
Amendment’s constraints — prohibiting, for example, the denial of
“equal protection of the laws
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only to the actions of states, not individuals. And to cap it all off,
it decided the 15th Amendment secured not the right to vote, but only
the protection against state “discrimination in the exercise of that
right.”

Much of Cruikshank has since been reversed — in no small part,
ironically, by the Roberts court’s rulings
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the Second Amendment to strike down state gun laws. But Cruikshank’s
legacy endured for decades, as part of a series of decisions that
gutted the power of the post-Civil War amendments.
The Slaughter-House cases of 1873
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Amendment’s protections for citizens’ “privileges and
immunities”
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incorporate the Bill of Rights. The Civil Rights Cases of 1883
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that the 13th and 14th amendments allowed Congress to outlaw racial
discrimination. And most infamously, the court ruled in Plessy v.
Ferguson
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the 14th Amendment granted nonwhite Americans only legal, not social
equality — a standard that it declared satisfied by the perverse
doctrine of “separate but equal.”

The majorities in these cases frequently neglected or outright
ignored
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that their jurisprudence contradicted the amendments' original intent
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hastened the end of Reconstruction and cemented the imposition of Jim
Crow. Black Americans and their pro-Reconstruction white allies,
already outnumbered by armed and angry ex-Confederates, learned that
the federal government would not and could not come to their defense.
Groups like the Ku Klux Klan (which the Enforcement Act had targeted
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and the White League were free to impose segregation at gunpoint. For
Black Americans, writes Foner, the Colfax massacre “was long
remembered as proof that … they stood at a fatal disadvantage.”
Until its removal in 2021, a historical marker
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the courthouse hailed that day
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“the end of carpetbag misrule in the South.”

Like the Jim Crow-era decisions, the immunity ruling ignores both the
plain text of the Constitution and the historical evidence
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authors' intent
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embolden those who believe that might makes right. Rolling Stone
reports
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“various lawyers and other allies close to the ex-president were
genuinely, pleasantly shocked” at the court’s ruling and that
“plans are already in motion to use this new, historic court
decision as a legal shield to help a potential second Trump
administration.” In a new Trump White House, there would be no
constitutional concerns to constrain him from deploying the military
domestically
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a deportation force, ordering troops to shoot protesters
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sweeping pardons
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any supporters who break the law in his service. As Heritage
Foundation President and Project 2025 lead architect
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Roberts boasted
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“[W]e are in the process of the second American Revolution, which
will remain bloodless — if the left allows it to be.”

The message is clear: The forces of MAGA plan to seize power in 2025
and never lose it again.

But they shall lose. Perhaps their defeat will come as soon as
November, remote as that may seem right now, or perhaps further down
the road. “The flames kindled on the 4th of July 1776,” wrote
Thomas Jefferson to John Adams in 1821
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spread over too much of the globe to be extinguished by the feeble
engines of despotism. On the contrary they will consume these engines,
and all who work them.”

And when that defeat arrives, the Americans who still believe in
democracy and rights must not shrink from abolishing the minoritarian
movement that brought the country to this perilous place. Expanding
the Supreme Court, dismantling the filibuster, passing a new Voting
Rights Act — these are only the first steps. Every effort must be
made to rip out, root and branch, the levers used by the
anti-democratic right, as well as the moneyed interests that have
fueled their success and brought the country as close to fascism as it
has ever been. In politics, no defeat is ever final. But Trump and his
allies’ time in the wilderness, when it comes, must be as long as
possible.

_James Downie
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and editor for MSNBC Daily. He was an editor and columnist for The
Washington Post and has also written for The New Republic and Foreign
Policy._

* SCOTUS
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* History
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* Reconstruction
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* jim crow
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* MAGA
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