It was by chance that former Supreme Court justice John Paul Stevens died on the same day that the House of Representatives voted — sadly, very nearly along party lines — to condemn President Trump for racism in a resolution laden with quotations from Ronald Reagan. This accident of timing was highly instructive.
It can make you heartsick for our country that the discussion of Trump’s genuinely vile comments about four congresswomen of color moved so quickly from outrage to detached analysis about what the divider in chief was trying to accomplish politically. Trump doesn’t even have to manipulate the public conversation anymore. He knows the GOP’s spineless congressional cheering squad will always fall into line and that dissenters will be isolated. Mainstream journalism is more willing to call him out than it used to be but eventually feels obligated to take whatever he says for granted as another exciting episode in the drama he orchestrates.
But let’s not lose track of the moment we are in. Over the course of our nation’s history, we have had moments of great progress toward racial equality and periods of betrayal and reaction. The freeing of the slaves and the empowerment of African Americans during Reconstruction after the Civil War were a triumph for justice. They were quickly followed by a loss of nerve among northern white liberals, which allowed the imposition of Jim Crow and racial subjugation in the South once federal troops were withdrawn in 1877.
The Second Reconstruction of the 1960s once again took up the work of living up to the words of our Declaration of Independence. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 were accompanied by what many of us thought (or, at least, wanted to hope) were decisive changes among white Americans in their attitudes toward race. The Immigration and Nationality Act of 1965 reflected this new disposition, ending deep racial biases in our system for welcoming newcomers.
Perhaps it was inevitable that the Second Reconstruction would be followed by a second period of white backlash, and in truth, it has been building for decades. It began with Barry Goldwater’s conversion of the Deep South to the GOP in 1964 and former Alabama governor George Wallace’s 1968 presidential candidacy. Both prompted Richard Nixon’s “Southern strategy” and everything that has followed.
Still, this backlash was relatively restrained when compared with the terrorist violence in the South that overthrew the first Reconstruction. And many Republicans still remembered their party’s historical role in achieving racial justice. Now, with the rise of Trump, Lincoln’s heirs are ready to embrace a full-on racist.
Which brings us to Stevens, a Republican appointed to the Supreme Court by Republican President Gerald R. Ford in 1975. There is much to honor about Stevens. For the rest of my days, I will salute his passionate dissent in Bush v. Gore eloquently describing the breathtaking damage done to the court’s legitimacy by a shamelessly partisan ruling that decided the 2000 election.
But one of his singular contributions was a 1985 speech to the Federal Bar Association in Chicago taking on the conservative judicial theory known as “originalism.”
He gently mocked the idea of a “founding generation” at one in its views about what the Constitution meant. After all, he said, its ranks included “apostles of intolerance as well as tolerance, advocates of differing points of view in religion as well as politics.”
More important, in a critique of then-Attorney General Edwin Meese III’s defense of “a Jurisprudence of Original Intention,” Stevens argued that originalism typically “overlooks the profound importance of the Civil War and the post-war amendments on the structure of our government.” The 13th, 14th and 15th Amendments finally wrote racial equality into our Constitution and gave the federal government authority it didn’t have before.
The 14th Amendment in particular so profoundly changed our original document that legal scholars have called it “the Second Constitution.” But the promise of the Reconstruction Era amendments was cut short and did not fully come to life until the civil rights movement sparked the Second Reconstruction during the 1960s.
So Trump’s despicable use of a street bigot’s language must not be treated as just another opportunistic political ploy. His undisguised prejudice reminds us that we can choose his vision of America or the vision championed by John Paul Stevens, a very different kind of Republican. Our forebears tried to vindicate our country’s promise in the original Reconstruction, and then retreated. We dare not allow our country to retreat the second time around.
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