Of Ruth Bader Ginsburg, John Lewis, Jimmie Lee Jackson, Fannie Lou Hamer, Rosa Parks, Coretta Scott King, Herbert Marcuse, Joseph Weydemeyer, Karl Marx, Frederick Douglass, Jim Crow, the New Jim Crow, and the New New Jim Crow: Brief Thoughts on Shelby County v. Holder

I know — the title is too long.  If I truly intend to share brief remarks, I’ve already used up my time with the title.  But, I have my reasons.

Here we are on July 4th on the historic grounds of the home of abolitionists Stephen and Harriet Myers which regularly housed freedom seekers escaping slavery, with the fiery words of Frederick Douglass in our minds and souls, and I am given the task of reflecting briefly on the recent Supreme Court decision in Shelby County v. Holder.1

Fortunately, Frederick Douglass has already analyzed this case for us.  Here is Douglass’s assessment of the Shelby case, remarkable for having been written 161 years before the Court issued its decision:

Whether we turn to the declarations of the past, or to the professions of the present, the conduct of the nation seems equally hideous and revolting.  America is false to the past, false to the present, and solemnly binds herself to be false to the future.2

Douglass’s formulation — “false to the past, false to the present . . . false to the future” — captures the essence of the Court’s decision: it is false in its understanding of history, false in its perception of the present, and false in its desperate grasping at a twisted hope for the future.  Specifically, the decision represents a failure or refusal on the part of the Court’s majority to be honest about the fundamental and continuing role played in our nation and our nation’s history by racism.

Douglass’s “false to the past, false to the present . . . false to the future” analysis is echoed in the brilliant, passionate, and detailed dissenting opinion by Justice Ruth Bader Ginsburg, which I encourage all to study.  (I don’t recommend reading the majority opinion or Justice Thomas’s concurring opinion unless you have to, and even then only if you have a strong stomach.)

Among other things, Ginsburg attacks the ahistorical character of the majority decision.  Quoting Shakespeare, she notes that the majority “ignores that ‘what’s past is prologue’.”  What a profound observation, “the past is prologue”!  It neatly, and with a literary flourish, sums up the deep defect with the Court’s decision: its deliberate ignoring of both the contemporary ramifications of historical racism in this country and its current vitality.  And, to make clear what she is worried about, Justice Ginsburg goes on to quote philosopher George Santayana, who said “[t]hose who cannot remember the past are condemned to repeat it.”3

That is, perhaps, what this case is about: are we condemned to repeat the past?

In 2006, a Congress aware of history, or, at least, desiring to give the impression that they were, and cognizant of those who — in the not too distant past — gave their sweat, blood, tears, and lives to extend the promise of democracy to African-Americans, gave a name to the bill re-authorizing the Voting Rights Act — a re-authorization which is at the core of the issues addressed by the Court in Shelby.  The 2006 law is called the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act.4  Isn’t that a clear statement of the intent of Congress, an insistence that the battles fought by Fannie Lou Hamer, Rosa Parks, Coretta Scott King, and so many others continued to have meaning in the 21st century?  How could five Supreme Court justices misunderstand that?

In the background of Congress’ action, in addition to the leadership of the three women honored in the name of the re-authorization act — and hopefully never far from the consciousness of most members of Congress — was the fact that one of the heroes of the battle for voting rights — beaten and bloodied and with his skull fractured by racist local law enforcement thugs on the famous “Bloody Sunday” march from Selma on March 7, 1965 — is their colleague, Congressman John Lewis.5

Possibly, in their minds was the sacrifice of Jimmie Lee Jackson, a 26-year-old Army veteran in Alabama who had tried, unsuccessfully, five times to register to vote, and who in February 1965 was shot by an Alabama State Trooper and then beaten to death when peaceful voting rights demonstrators were brutally attacked by law enforcement officers in Marion, Alabama, in an incident that served as one of the sparks for the Selma to Montgomery marches.6

And, in the foreground for Congress was the undisputed and compelling documentation (some 15,000 pages of congressional hearings and reports bringing “to light ‘systemic evidence that “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed”‘”7).  As Justice Ginsburg noted, Congress correctly and with ample basis concluded that “First, continuance of [the pre-clearance requirements of sections 4 and 5 of the Voting Rights Act] would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding.”8

I want to bring this back to Douglass’s “false to the past, false to the present . . . false to the future” words and to Justice Ginsburg’s “the past is prologue” observation.

There is an additional component to the history repeating itself theme.

How does history repeat itself?  Is it the same the second time around?  And what role do we play in how and whether it is repeated?

In the 1850s Frederick Douglass was not the only person pondering these questions.

In March 1852, a few months before Frederick Douglass gave his 4th of July speech in Rochester, a German-American immigrant in New York City, a socialist, abolitionist, and future Union Army officer, Joseph Weydemeyer, published an essay by his friend Karl Marx.  The essay was an analysis of the recent rise to power in France of Napoleon’s tyrannical nephew.  Marx notes, as is relevant for today’s discussion, that it is too simple to say that historic events appear twice, or repeat themselves, that it must also be observed that the first time is “as tragedy and the second time as farce.”9

How else can we interpret the Supreme Court’s action in forcing our country to re-play the tragedy of the widespread denial based on race of access to the most fundamental avenues of democratic civic and political engagement as anything other than a farce?

The philosopher Herbert Marcuse, in the 1960s, took this a step further — as is pertinent today as well — and noted, in reference to the repetition of history, that “the farce is more fearful than the tragedy it follows.”10

Now we have it.  The mass race-based exclusion from participation in the organs of democratic government is — if the Supreme Court has anything to say about it — going to be repeated in the 21st century as a farce which is more fearful than the original tragedy.

How can this be?  More fearful than “Bloody Sunday”?  More fearful than the Klan terrorizing African-Americans to keep them from voting?  More fearful than the killing of Jimmie Lee Jackson?

In its own way, yes.

First, parallel to the achievement and consolidation of the monumental victory of voting rights for African-Americans starting in the 1960s has been the unprecedented growth of a somewhat hidden mechanism of mass African-American exclusion from participation in the organs of democracy: felon disenfranchisement.  There are now — regardless of the Voting Rights Act — millions of African-American men (and growing numbers of African-American women and, of course, men and women of other backgrounds) who have been barred from voting or seeking elective office based on their status as convicted felons.11  This is the system of mass incarceration labeled by Michelle Alexander as “the new Jim Crow.”12  So, the farce, turned even more fearful than the original tragedy, is that the current limitations on voting rights are broader, more all-encompassing, and more complex than what we thought in 1965.

Second, our nation will soon have a majority of citizens who are not white.  For people in power, this is a scary thought.  The Court’s decision in Shelby represents, perhaps, the last dying gasp of a white power structure determined to block progress by any means necessary.  The good news is they will, eventually, lose.  The bad news, the farce more fearful than the original tragedy, is that they will wreak havoc and cause tremendous pain to us all on their way out.13

I will close with this.  How terrible, how farcical, how fearful this effort to force a repetition of history will turn out to be will depend on the actions of all of us.

If we fail to stand up and insist that Congress again re-authorize and strengthen the Voting Rights Act, if we fail to abolish the system of mass incarceration, if we fail to insist that full democratic participation by all is essential to the future of our country, then we will allow the Supreme Court to have created a new, new jim crow, a terrible, fearful, farcical, and, in the words of Frederick Douglass, “hideous and revolting” repetition of history.  Whether we will continue to be “false to the past, false to the present and . . . false to the future” depends on us.


1 570 U.S. ___ (2013).  The Court held Section 4(b) of the Voting Rights Act, the provision establishing “covered jurisdictions” for which any changes in voting procedures require preclearance, to be unconstitutional as currently structured, essentially rendering the key safeguards of the Voting Rights Act inoperative.

2 Frederick Douglass, “Oration” (known as the “What to the Slave is the 4th of July” speech), first presented July 5, 1852, Corinthian Hall, Rochester, NY, at the invitation of the Rochester Anti Slavery Sewing Society.  First edition, 1852, Lee, Mann & Co., Rochester, p. 16.

3 Shelby, Ginsburg dissenting opinion, slip op., p. 19.

4 120 Stat. 577.

5 See, generally, John Lewis, Walking With the Wind: A Memoir of the Movement, 1998.

6 See, Louis Menand, “The Color of Law, Voting Rights and the Southern Way of Life,” The New Yorker, July 8, 2013.  Accessed from the Internet on July 2, 2013.

7 Shelby, Ginsburg dissenting opinion, slip op. p. 7, quoting from the 2012 opinion of the DC Circuit Court of Appeals in Shelby, 679 F. 3d 848, 865. 

8 Shelby, Ginsburg dissenting opinion, Slip Op. p. 1. 

9 Karl Marx, Der 18te Brumaire des Louis Napoleon, first published 1852 in “Die Revolution,” a German-language journal published in New York by Joseph Weydemeyer.  English editions are usually titled, The Eighteenth Brumaire of Louis Bonaparte.

10 Herbert Marcuse, Epilogue to 1965 German edition of Marx’s 18th Brumaire, translated into English as “Epilogue to the New German Edition of Marx’s 18th Brumaire of Louis Napoleon,” Radical America, July/August 1969, pp. 55-59.

11 It is important to note that laws vary state by state regarding felon disenfranchisement.  In New York, for example, a person is disenfranchised upon a felony conviction if s/he is sentenced to prison and solely for the period of incarceration and any post-release supervision (parole).  Once the prison sentence and parole are completed, the individual can register to vote.  In NY it is also possible to have the right to vote restored prior to the completion of the sentence at the discretion of the court and/or the Division of Parole.  So, unlike some states where an individual is disenfranchised for life based on a felony conviction, the NY rule — while outrageous, unnecessary, and discriminatory — is not quite as bad as some other jurisdictions.

12 Michelle Alexander, The New Jim Crow, Mass Incarceration in the Age of Colorblindness, NY: The New Press, 2010.

13 Appreciation to Damon Silvers, AFL-CIO Policy Director, who made this point in his presentation to the Justice Works conference in Albany, NY on June 29, 2013.

Mark S. Mishler is a criminal defense and civil rights lawyer in Albany, NY.  He is an adjunct professor at Albany Law School where he developed a course based on Prof. Michelle Alexander’s The New Jim Crow, Mass Incarceration in the Age of Colorblindness.  Mark has been a peace and justice activist for many years.  For more information, see: www.markmishlerlaw.com.  This is a slightly edited version of remarks presented at the annual July 4th “What to the Slave is the Fourth of July” event at the Stephen and Harriet Myers residence in Albany, NY, 7/4/13 sponsored by the Underground Railroad History Project, www.undergroundrailroadhistory.org.

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