Race, Voting Rights, and Activist Judges

Heads up reader, this will contain some graphic and violent language pertaining to race and race-based crimes.

I visited the new Smithsonian Museum of African American History and Culture. It has been very busy since its opening, and that Sunday was no exception. We got timed entry passes the day of and entered at 3pm. (If you’re interested in attending, see info here) We decided to start at the top floor and work our way down- spoiler alert, we didn’t get through everything. The top floor contains the culture exhibitions; in the concourse levels, there were exhibitions examining major periods in African American history, starting with the beginning of the slave trad and ending with President Obama’s election.

Throughout all of these levels, I found myself subconsciously being drawn to facets of exhibitions pertaining to voting and voting rights (one trick pony, amirite?). Take, for example, the mixed media sculpture pictured above.  This piece is by Kevin E. Cole, called “Increased Risk with Emotional Faith”, made in 2008 (see more about the artist and his works here). The description accompanying the piece appears below:

When artist Kevin Cole was 18, his grandfather showed him a tree in his Tary, Arkansas, neighborhood from which African American men were routinely lynched for attempting to vote. His grandfather added that when these men were killed, their neckties would be wrapped around the hanging noose. The ties were a warning to other black men that African Americans should not aspire to the status or privileges of white people by exercising their rights as citizens or reaching above their prescribed underclass status.

Cole’s chilling memory of this event inspired him to incorporate the abstracted form of the necktie in his work. By doing so, he seeks to transform this gruesome legacy into his contemporary vision of the inner strength, resiliency, and self-determination of African American men.

The juxtaposition between the bright colors and happy patterns used, and the violence and hate they are to represent really stuck in my mind. I actually returned to this piece multiple times because of how taken I was and am with it. I am also amazed at how recently this took place; the artist was born in 1960, so this conversation took place in 1978. It is not mentioned when, per-say, the lynchings took place, but that doesn’t really matter.

People argue nowadays (by “people” I mean super-conservatives) that we shouldn’t talk about race. That we shouldn’t focus on black lives because it is racist to uplift one race “over another”. That we are clearly all equal. I argue this is bullshit.

There are people alive today that remember when people were murdered for exercising their most basic civil rights, rights that were outright denied to black people for the first century of our nation, and practically denied for several centuries after. There are politicians now enacting laws to make it more difficult for people to vote as well, with the introduction of voter ID laws.

I think we (white people) like to pretend that everything is “good” now so we don’t have to deal with the consequences of history, and often our own actions. I myself have a want to do this; I liked to think that Massachusetts and New England as a whole is a perfect liberal utopia, and have been working to reform that view. Did you know that there was a strong and violent protest to integrated schools in Boston in the 1970s?

I was surprised to find in the slave trade section of the history part of the museum several things: one, Rhode Island benefited financially the most of the states from slave trading, and two, though many New England states were the first to outlaw slavery, they were also among the first to clamor to join the practice.

I also learned that a freed slave petitioned the state of Massachusetts in 1790 for voting rights. As a free man, it was his right. Obviously his case was denied, as voting rights were not established until centuries later. But this also brings me to a point. There was established judicial precedent denying rights to vote to black people.

So what changed? For one, public sentiment. Suffragists, for both blacks and women, argued for the fundamental right to vote (some pitting their causes against the other, thanks original white feminism!) and ultimately, some judges had to ignore judicial precedent of cases denying voting rights to ultimately rule that laws passed granting voting rights were constitutional.

If a similar ruling were to be made today, the judge in the case would be called an “activist judge”. Judges act in the name of justice, but activist judges are accused of acting in the name of a political agenda. Judges may strike down a law passed that is prejudicial, or rule in a civil matter that a practice is unjust. They often are ruling in a way where the case is in completely new territory, and need to create a new precedent based on their understanding of our laws. Judges who do so are often called an activist judge by the losing party, often the person in power in the situation.

You will most often hear this term from the Right, as a disparaging name against judges who rule in ways that create a new hurdle for oppressors to jump over. If you Google search “history of activist judges” the first several results, besides Wikipedia, are from conservative think tanks and conservative thinkers.

They claim that judges go in seek of matters where they can change things for their own political agenda, but for higher court judges, it is literally their job to find cases where there are new and interesting legal questions. It is literally the court’s job to check the power of the legislature, yet there will be angry laments when they do. “There needs to be a healthy respect for the legislature” Norm Ornstein and many others cry.

The problem with this is that the legislature does it’s darned best to be as least accountable to minorities as it can be, a la gerrymandering and voter suppression. If we don’t let them vote, we won’t have to answer to their concerns! says the maniacal Republican caricature I have in my brain. Further, American legislatures have legislated against minorities since before the country was even founded! 3/5th’s Compromise, anyone?

However, that doesn’t necessarily mean the courts are too much better. Remember the gentleman who had his voting rights denied in 1790? And, as recently as 2013, the Supreme Court struck down key passages of the Voting Rights Act of 1965 that had repercussions effecting the 2016 general election, as states who formerly were subject to federal oversight removing 868 polling places and overall making it more difficult to vote. One of the main arguments for the ruling was that “the country had changed”, yet, if you were to ask the artist of the featured piece or his grandfather, I wonder if he would say the same.

If you’ve read this far, you’re probably wondering what the hell I’m arguing. I am too. I trust the judicial system to protect rights more than the legislature for the reasons mentioned earlier, but the justice system is also incredibly fallible. What resources, then, do disenfranchised people and communities have?

It’s been two months since I’ve seen this sculpture, and I think about it daily. I am planning to go back to the museum soon, and I will likely stare at it some more. Perhaps I will come to an answer as to what I am arguing.

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