The Neo-Confederate Supreme Court

Exclusive: The Right’s desperation over U.S. demographic changes has spread to the U.S. Supreme Court where its five Republican partisans appear ready to tear up the most important part of the Voting Rights Act and thus clear the way for suppressing the votes of minorities, reports Robert Parry.

By Robert Parry

If white rule in the United States is to be restored and sustained, then an important first step will be the decision of the five Neo-Confederate justices on the U.S. Supreme Court to gut the Voting Rights Act, a move that many court analysts now consider likely.

The Court’s striking down Section Five of the Voting Rights Act will mean that jurisdictions with a history of racial discrimination in voting mostly in the Old Confederacy will be free to impose new obstacles to voting by African-Americans, Hispanics and other minorities without first having to submit the changes to a federal court.

This green light to renew Jim Crow laws also would come at a time when Republican legislatures and governors across the country are devising new strategies for diluting the value of votes from minorities and urban dwellers in order to protect GOP power, especially within the federal government.

Already, the Republicans’ aggressive gerrymandering of congressional districts has ensured a continued GOP majority in the U.S. House of Representatives although Democrats outpolled Republicans nationwide in Election 2012.

Some GOP-controlled states, which also have tended to vote Democratic in presidential elections, are now considering apportioning presidential electors according to these gerrymandered districts to give Republican presidential candidates most of the electoral votes even if they lose the state. [See Consortiumnews.com’s “Return of Three-Fifths of a Person.”]

On Wednesday, the five partisan Republicans on the U.S. Supreme Court showed that they wanted to do their part in devaluing the votes of blacks, Hispanics, Asian-Americans and young urban whites. So the key GOP justices indicated during oral arguments that they are looking for excuses to strike down the heart of the Voting Rights Act.

Right-wing Justice Antonin Scalia shocked the courtroom when he dismissed the Voting Rights Act as a “perpetuation of racial entitlement,” suggesting that the right of blacks to vote was some kind of government handout.

But almost as troubling was the remark from Justice Anthony Kennedy who insisted that the Voting Rights Act, which was first enacted by Congress in 1965 and was renewed overwhelmingly in 2006, was an intrusion on Alabama as an “independent sovereign,” states’ rights language reminiscent of the Old Confederacy.

Indeed, the five Republican justices also including John Roberts, Clarence Thomas and Samuel Alito seem to have absorbed a Neo-Confederate interpretation of the Constitution that is at odds with what the Framers intended.

The Stolen Narrative

The language about “independent” and “sovereign” states was part of the Articles of Confederation, which governed the United States from 1777 to 1787 and which proved so disastrous that George Washington and James Madison insisted that the Articles be tossed out entirely during the writing of the Constitution in 1787.

General Washington, in particular, hated the concept of “independent” and “sovereign” states because he saw the effect on his inability to secure adequate supplies and munitions for his troops during the Revolutionary War. The states often reneged on their promises to provide support, and the central government had little power. In the Articles, it was deemed a “league of friendship.”

With the Articles failing as a governing structure, the Constitutional Convention in Philadelphia was instructed to propose amendments, but Washington and Madison engineered the complete elimination of the Articles in favor of the new Constitution.

The Constitution made federal law supreme and transferred national sovereignty from the 13 states to “We the People.” All language about state “sovereignty” and “independence” was expunged, though the Framers left the states substantial control over local matters.

However, the tensions between the federal government and the states continued, especially over the South’s insistence that the slavery of African-Americans be made a permanent part of American life. Among the compromises in Philadelphia had been a particularly offensive clause that counted black slaves as “three-fifths of a person” for the purpose of representation.

Slave states also wanted their “peculiar institution” to be extended to other incoming states to prevent the possibility of non-slave states outvoting the slave states in Congress. Ultimately, this dispute led to Southern states seceding from the Union after Abraham Lincoln’s election in 1860.

The Rise of Jim Crow

The North’s victory in the Civil War appeared to establish the supremacy of federal law as expressed in the Constitution. The Thirteenth Amendment was enacted in the waning days of the conflict, abolishing slavery once and for all. The Fourteenth and Fifteenth Amendments then established the principles of equal protection under the law, including the right to vote.

But still the former slave states didn’t give up. With whites reasserting their racial supremacy and their political dominance through electoral trickery and terrorist violence the states of the Old Confederacy created a Jim Crow system of racial segregation that included devious means to rob African-Americans of the voting franchise.

It was not until the civil rights struggle of the 1950s and 1960s that the federal government again stepped in against these racist laws and actions. This intervention produced an angry white backlash in the South and a resurgence in the Right’s pseudo-scholarship about the U.S. Constitution.

Over the past half century, wealthy right-wingers have invested millions and millions of dollars in “think tanks” and other research institutions the likes of Heritage Foundation, Cato Institute and Federalist Society that have worked diligently to cherry-pick the nation’s early history to transform America’s Founding narrative into its opposite, with Washington and Madison made into states’ rights lovers and federal government haters.

In this right-wing narrative, the Articles of Confederation largely disappear because their presence destroys the storyline of the Framers enacting the Constitution to enshrine the principles of states’ rights and a weak central authority. After all, if the Framers wanted that kind of system, why did they throw out the Articles with those “sovereign” and “independent” states and with the federal government just a “league of friendship”?

But the Right’s scholars were well-paid to make a Neo-Confederate case. So they took the rather inconsequential Tenth Amendment and elevated it into some defining principle. In reality, it was a sop to the Anti-Federalists during the difficult ratification of the Constitution and simply says that powers not granted to the federal government remain with the people and the states.

The amendment meant very little since the Constitution granted very broad powers to the central government, and Madison always asserted that the Constitution defined the limits of federal power (which is why he initially thought there was no need for a Bill of Rights). [For more on this history, see Robert Parry’s America’s Stolen Narrative.]

Neo-Confederate Revisionism

Why this history is significant today is that the five right-wing justices, making up the majority of the U.S. Supreme Court, are the products of this Neo-Confederate revisionism. They absorbed this ersatz history as they rose through the ranks of right-wing ideology and institutions.

Now they are in position to impose their false constitutional thinking on the United States, particularly as those theories relate to the present Republican crisis with the country’s changing demographics. As the white population shrinks to below 50 percent, the only way to sustain white control is by devaluing minority votes by, in effect, counting them as only worth three-fifths of a person.

If the GOP can’t rig future elections to give greater weight to white votes and less value to the votes of blacks, Hispanics, Asian-Americans and urban white youth (who accept the nation’s new multiculturalism), then the right-wing cause will almost surely be lost.

Thus, the Supreme Court’s arguments tend to sound more like a pundit debate on Fox News or a discussion group at the Conservative Political Action Conference than a serious legal deliberation.

For instance, Chief Justice Roberts questioned the need for Section Five of the Voting Rights Act by making the clever but disingenuous argument that blacks in Mississippi vote in higher proportions relative to whites than those in Massachusetts.

However, his point is illogical because, first, that would indicate that the Voting Rights Act is working as intended in Mississippi not that it should be struck down and, second, people aren’t saying that Massachusetts has taken actions to discourage black voting. In the United States, people have the right to vote or not to vote. The legal problem arises when state and local jurisdictions try to stop people from voting.

The Supreme Court’s apparent intention to gut the Voting Rights Act also could be viewed in the continuum of its five-to-four ruling in the Citizens United case of 2010 in which the right-wing justices freed up rich Americans to spend unlimited amounts to influence political campaigns. In other words, the Court’s majority seems intent on tilting the political playing field in favor of white plutocrats.

But the Court’s Neo-Confederate rationale was underscored mostly openly by Justice Scalia and his sneering remark about minority voting rights being a “racial entitlement” and by Justice Kennedy’s insistence that Alabama has the “independent sovereign” right to set its own voting rules without federal oversight.

[For a limited time, you can purchase Robert Parry’s trilogy on the Bush family for only $34. For details, click here.]

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).