Liberty Matters

Out of many, One


In January 1865, four months before the end of the Civil War, Frederick Douglass addressed the question of what the nation should do with the emancipated.  Douglass argued that there had been “but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us!”  Douglass goes on to say: “let [Blacks] fall if [they] cannot stand alone! If [African Americans] cannot live by the line of eternal justice…the fault will not be yours,” but first you must provide them an unfettered opportunity to stand.  Douglass knew, as did James Baldwin, that African Americans are like any other people, and that life is tragic and that everyone is accountable to life.[1] Douglass believed that “if you [would] only untie [their] hands, and give [Blacks] a chance, I think [they] will live. [They] will work as readily for [themselves] as [any other].”[2] However, in “doing nothing,” the nation also has a positive obligation to protect and enforce the rights and privileges of African Americans to ensure that others “do nothing” to them.  With states’ rights comes an equal if not greater obligation of  states’ responsibilities.
Douglass’s request, alas, went unfulfilled.  After Reconstruction, southern states began interfering with African American progress, both through action and inaction.  The Reconstruction Amendments (13th, 14th, and 15th), the Civil Rights Act of 1866, the Enforcement Act of 1870, the Ku Klux Klan Act of 1871, and the Civil Rights Act of 1875 collectively provided a constitutional and legal framework for protecting the rights and privileges of citizenship and created two avenues of redress: federal prosecution and the franchise.  Nevertheless, by the 1880s, progress towards racial equality had stalled. The federal government was largely unable, and states largely unwilling, to protect African Americans.  In their failure, they were bolstered by six infamous Supreme Court decisions.[3]
The first was the Slaughter-House (1873) decision, which limited the privileges and immunities clause of the 14th Amendment to those negligible privileges and immunities not already allegedly protected under state law.  Then, on March 27, 1876, the Supreme Court handed down two more notorious decisions.  In United States v. Cruikshank, spawned by the Colfax Massacre in Louisiana, the court’s decision largely eliminated the 13th and 14th Amendments as avenues of protection and enforcement.  The United States v. Reese decision then struck a blow to voting rights, weakening the 15th Amendment by holding that the Enforcement Act of 1870 was not tied to race, even though it obviously and certainly was.[4]  Following these two decisions, Blacks could be murdered or disenfranchised with impunity, and the decisions initiated a period of over one hundred years of unchecked domestic terrorism—a veritable nadir for African Americans.
This was not the end.  In Virginia v. Rives (1880), the Supreme Court upheld the legality of all-white juries, significantly weakening the equal protection clause of the 14th Amendment.  This decision paved the way for over half a century of fraudulent all-white juries.  It would not be until Norris v. Alabama (1935), a Scottsboro case, that the Supreme Court would reverse a conviction due to Blacks’ systematic exclusion from juries.[5]  In 1883, the Supreme Court’s decision in United States v. Harris (1883) held that the Ku Klux Klan Act could not be used to prosecute individuals, and the decision in the Civil Rights Cases (1883) ruled that the Civil Rights Act of 1875, which banned segregation in public spaces, was unconstitutional.  These two cases stripped away the federal government’s power under the 13th and 14th Amendments to prosecute individuals.  They also established the state action doctrine, which maintained that neither the Civil War Amendments, nor Congress acting to enforce them, could apply to individuals unsupported by state authority such as laws and judicial or executive action.  The court recognized that an individual’s constitutional rights could be violated, but argued that states had their own remedies.  Lastly, the decision in Civil Rights Cases (1883) went a step further in eliminating Congress’s power to define discrimination (or the badges and incidents of slavery) under Section 2 of the 13th Amendment.[6]  These cases collectively collapsed the wall of protection around African Americans’ rights and privileges.
African Americans entered the 1890s with no meaningful way to protect or enforce their rights, and subsequently the “twin pillars” of racial discrimination emerged: segregation and disenfranchisement.[7]  Mandated white supremacy reigned for over one hundred years.  It was not until after the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 that our nation truly became a democracy.  Between then and now, at all levels of governance, through action and inaction, we have seen discrimination in housing, banking, criminal justice, and other areas of public policy.[8] Yet African Americans have persisted and excelled. This is what liberty has to say:  Black history is American history.  African Americans have broken down barriers and shattered glass ceilings.  Despite discrimination, Blacks have served this nation at home and abroad.  Despite undeserved de jure and de facto inequalities, African Americans have, and will continue to, overcome.
The key word here is “undeserved.”  Natural inequalities of ability can create unequal outcomes.  When a person studies longer, exercises harder, and practices more, they might overcome some natural inequalities.  But they will not overcome all undeserved inequalities.  Undeserved inequalities, such as racism, are structural or institutional disadvantages based on who a person is within the polis, and they inhibit the capacity of that person to fully access the rights and privileges afforded them as citizens.  Undeserved inequalities are not the cause of all inequalities, and yet they can pose significant impediments.  This is important because any patterns of inequality that emerge within a society should reflect a commitment of that society to acknowledge and ensure that all citizens have access to the goods they need to make their freedoms valuable.[9]  The central problem within the liberty movement is the significant discrepancy between liberalism in theory and liberalism in practice.  The adherents of liberalism have failed to deliver on its theoretical and normative promise by neglecting to advance the cause of liberty for historically marginalized groups.  Liberty must be for everyone.  When it is not, it becomes merely a form of patronage.
Today, the primary question facing African Americans and liberty is: will it all be for naught?  On January 6, 2021, members of the Republican Party attempted to invalidate the ballots of over 20 million voters.[10]  On that same day, their supporters stormed the Capitol in an effort to forcibly prevent Congress from validating the 2020 presidential election.[11]  Since this insurrection, Republican congressional lawmakers have continued to push “The Big Lie” that the election was stolen, and it appears that they are unified against passing any new federal voting rights legislation precisely because it will increase voter participation.[12]  Republican-held state legislatures, citing their constituents’ distrust in the electoral system—which they themselves created—have filed over 440 bills aimed at restricting voting rights across America.[13]  In addition, supporters of voter nullification are openly running for key positions in many states.[14]  The party’s electoral strategy seems to be based primarily on pushing the myth of voter fraud, preventing detractors from voting, and if they lose, nullification.[15]  The result is that in Blue States, Democrats receive 60% of the vote and 69% of the seats, but in Red States, Republicans receive 59% of the vote and 75% of the seats.[16]  If Republicans can prevent enough people from voting in 2022, they will (1) increase their political hold on their respective states, (2) increase their overrepresentation in Congress, and (3) prevent any future opponents of these policies from being elected to the presidency.  All checks on the nation’s decent into authoritarianism will be lifted.[17]
The bottom line is that American democracy is at risk.  So, the question is: what does liberty have to say to white America?  We have yet to fully defeat the twin pillars of discrimination: segregation and disenfranchisement.  The nation defeated the monster of segregation, but it has yet to slay the beast of disenfranchisement.  As with Typhon and Echidna, these monsters are wed, and their collective progeny feed off their existence.  If we allow disenfranchisement to persist and expand, Typhon will surely resurrect Echidna and together they will end liberal governance in America.  For the sake of the nation, we must expand voting rights, and in doing so, we will finally strike mortal blows to both pillars of discrimination.  We have arrived at a decisive moment.  Will this year mark the start of another post-Reconstruction-era retraction of liberty?  Will this year mark the beginning of the end for democratic governance?  Will this year witness the entrenchment of fascism as the new American realpolitik?  To unlock the potential of American democracy, we must give voice to the people.  Together, we shall overcome.  E pluribus unum.
[1] Baldwin, J. (1998). Collected essays. New York: New York: Library of America: Distributed to the trade in the U.S. by Penguin Putnam.
[2] Douglass, F. (2016). The essential Douglass: Selected writings and speeches Hackett Publishing. p.196
[3] Burton, O. V., & Derfner, A. (2021). Justice deferred: Race and the supreme court Harvard University Press.
[4] Burton, O. V., & Derfner, A. (2021). Justice deferred: Race and the supreme court Harvard University Press.
[5] Burton, O. V., & Derfner, A. (2021). Justice deferred: Race and the supreme court Harvard University Press.
[6] Burton, O. V., & Derfner, A. (2021). Justice deferred: Race and the supreme court Harvard University Press.
[7] Burton, O. V., & Derfner, A. (2021). Justice deferred: Race and the supreme court Harvard University Press.
[8] Baradaran, M. (2017). The color of money: Black banks and the racial wealth gap Harvard University Press., Hinton, E. (2016). From the war on poverty to the war on crime: The making of mass incarceration in America. Cambridge Mass: Harvard University Press., Hinton, E. (2021). America on fire: The untold history of police violence and black rebellion since the 1960s HarperCollins UK., Katznelson, I. (2005). When affirmative action was white: An untold history of racial inequality in twentieth-century America WW Norton & Company., Rothstein, R. (2017). The color of law: A forgotten history of how our government segregated America Liveright Publishing.
[9] Tomasi, J. (2012). Free market fairness. Princeton: Princeton University Press.
[17] Albright, M. (2018). Fascism: A warning. New York, NY: Harper Collins., Applebaum, A. (2020). Twilight of democracy: The failure of politics and the parting of friends Penguin UK., Levitsky, S., & Ziblatt, D. (2018). How democracies die Broadway Books.