Review of “Caste: The Origins of Our Discontents” by Isabel Wilkerson

This book is illuminating, depressing, infuriating, and crucial to our understanding of what is happening in America today.

“Racism” has become such a contested word lately, with the definition itself becoming an important factor in calls for change in America. Thus Wilkerson’s new book is all the more critical, as she posits that the main organizing principle in American life is better described as “caste” rather than “race,” although they intersect.

She characterizes a caste system as:

“an artificial construction, a fixed and embedded ranking of human value that sets the presumed supremacy of one group against the presumed inferiority of other groups on the basis of ancestry and often immutable traits, traits that would be neutral in the abstract but are ascribed life-and-death meaning in a hierarchy favoriting the dominant caste whose forebears designed it.”

Importantly, she notes of caste:

“It is about power – which groups have it and which do not. It is about resources – which caste is seen as worthy of them and which are not, who gets to acquire and control them and who does not. It is about respect, authority, and assumptions of competence – who is accorded these and who is not.”

She compares three caste systems that have stood out in modern history: the one used in Nazi Germany to distinguish, with lethal effect, “Aryan” from others; India’s caste system, which is among the world’s oldest form of surviving social stratification; and “the shape-shifting, unspoken, race-based caste pyramid in the United States.”

Her discussion of Nazi Germany is particularly chilling, because she describes how the Nazis studied race laws in the United States to get ideas for their own caste system, and were “astonished” by both the extent of race legislation in America to keep the population segregated, and the fact that they could get away with it “yet retain such a sterling reputation on the world stage.” Even more shocking is the fact that, at first, some of the rules used by Americans seemed “too harsh” to them. Eventually, she observed, the more radical Nazis prevailed, in part, one historian wrote, because they did not want to seem less rigorous than the Americans!

She then analyzes what she sees as “the eight pillars of caste,” such as dehumanization and stigma, using terror as enforcement, and control of marriage and mating. She also discusses “the tentacles of caste” – i.e., how difficult it is to escape the system. In her poignant and sad chapter “The Intrusion of Caste in Everyday Life,” she details how norms and stereotypes associated with caste constantly affect the lives of families at the bottom. And finally she talks about blowback – what happens, for example, when a black man is elected President of the United States. Unfortunately, we are now living with the results of that blowback, as well as the long-term effects of centuries of racism. As Siri Hustvedt writes in “Tear Them Down: Old Statues, Bad Science, and Ideas That Just Won’t Die”:

“Murder, rape, as well as physical and psychological torture were instruments of terror inherent to the institution of slavery, and they did not end with the defeat of the Confederacy. The enduring legacy of slavery in the US is essential to the Black Lives Matter message. If George Floyd’s murder constitutes a breaking point in US history it is because the image of a white man with his knee on a black man’s neck as he slowly suffocates his victim to death is understood as part of centuries of domination and cruelty rooted in a pernicious racial ideology that has permeated all our institutions.”

Wilkerson also recounts the long-term effects of discriminatory housing policies. In another timely essay detailing Wilkerson’s points, this Washington Post essay demonstrates how the practice of redlining (the steering of blacks and whites into different neighborhoods by both banks and realtors) had secondary long-term deleterious effects of wealth disparities and educational achievement gaps.

In her last chapter, Wilkerson asks, “How dare anyone cause harm to another soul, curtail their life or life’s potential, when our lives are so short to begin with?” She writes, “Caste is a disease, and none of us is immune.” But it is not a hopeless situation. She avers:

“Once awakened, we then have a choice. We can be born to the dominant caste but choose not to dominate. We can be born to a subordinated caste but resist the box others force upon us. And all of us can sharpen our powers of discernment to see past the external and to value the character of a person rather than demean those who are already marginalized or worship those born to false pedestals.”

A world without caste, she argues, would set everyone free.

Evaluation: This brilliant book should be an essential part of history and instruction. Sadly, because of the very factors she discusses, it probably will only be read by a handful of citizens. If you are disinclined to read non-fiction, but are willing to read shorter articles that encapsulate what she is writing about, please consider the essays linked to above, as well as this poignant essay by Caroline Randall Williams published in the New York Times, which begins:

“I have rape-colored skin. My light-brown-blackness is a living testament to the rules, the practices, the causes of the Old South.

If there are those who want to remember the legacy of the Confederacy, if they want monuments, well, then, my body is a monument. My skin is a monument.”

Rating: 5/5

Published by Random House, 2020

October 9, 1823 – Birth of Mary Ann Shadd, 1st African-American Publisher in North America & 1st Woman Publisher in Canada

Mary Ann Shadd, the eldest of 13 children, was born in Delaware on this day in history to free African-Americans. Her parents were active in the Underground Railroad and their home frequently served as a refuge for fugitive slaves.

When it became illegal to educate African-American children in the state of Delaware, the Shadd family moved to Pennsylvania, where Mary attended a Quaker Boarding School. In 1840, after being away at school, Mary Ann returned to East Chester and established a school for black children.

In 1848, Frederick Douglass asked readers in his newspaper, “The Northern Star,” to offer their suggestions on what could be done to improve life for African-Americans. Mary Ann, then only 25 years of age, wrote to him to say, “We should do more and talk less.” She expressed frustration that speeches and resolutions had not produced many tangible results. Douglass published her letter in his paper.

Mary Ann Shadd, via Library and Archives Canada, C-029977

When the Fugitive Slave Law of 1850 in the United States threatened to return escaped slaves into bondage but also threatened free blacks, Mary Ann and her brother Isaac moved to Windsor, Ontario, across the border from Detroit. This is where Mary Ann’s efforts to create free black settlements in Canada first began.

While in Windsor, she founded a racially integrated school with the support of the American Missionary Association. Public education in Ontario was not open to black students at the time. Mary Ann offered daytime classes for children and youth, and evening classes for adults.

In 1853, Mary Ann Shadd founded an anti-slavery paper, called “The Provincial Freeman.” The paper’s slogan was: “Devoted to antislavery, temperance and general literature.” It was published weekly, and the first issue was published in Toronto, Ontario, on March 24, 1853. She persuaded a black abolitionist man and a male white clergyman to lend their names to the masthead to provide legitimacy that a woman’s name could not.

A remembrance of Mary Ann Shadd in the New York Times points out:

Her progressive approach and unorthodox outlook alienated some people. She criticized abolitionists who did not fight for full equality and instead supported segregated schools and communities. She also denounced refugee associations that gathered funds to support fugitive slaves but turned a blind eye to free blacks who were forced to live in poverty.”

The paper ran for four years, before financial challenges forced the paper to fold.

After the demise of the “Freeman,” Mary Ann Shadd Cary (she had married Toronto businessman Thomas F. Cary in 1856) was hired by Martin Delany as perhaps the only woman to recruit Black soldiers during the Civil War. She then settled in Washington, D.C., founding a school for the children of freed slaves, believing that education offered them more opportunities.

In 1869, she embarked on her second career, becoming the first woman to enter Howard University’s law school, graduating in 1870.  She was the first African-American woman to obtain a law degree and among the first women in the United States to do so.

She fought alongside Susan B. Anthony and Elizabeth Cady Stanton for women’s suffrage, testifying before the Judiciary Committee of the House of Representatives in January 1874 and becoming the first African-American woman to cast a vote in a national election.

After a lifetime of achievements and firsts, Shadd Cary died on June 5, 1893. Mary Ann Shadd Cary has been designated a Person of National Historic Significance in Canada, one of her many posthumous honors.

October 5, 1829 – Birth of Chester A. Arthur, 21st U.S. President

Many Americans don’t know much about their 21st president, Chester Alan Arthur, born on October 5, 1829, this day in history. He was serving as the 20th vice president when he succeeded to the presidency upon the death of President James A. Garfield in September 1881, two months after Garfield was shot by an assassin.

Arthur has quite an interesting background however. The son of an abolitionist preacher, he began his professional career as an attorney in New York City, making a name for himself by prosecuting civil rights cases.

Chester A. Arthur as a young man in New York

In 1854, for example, he successfully represented Elizabeth “Lizzie” Jennings, born free in New York City in March 1827. Lizzie’s father was the first African American to be awarded a patent, for his method to clean clothes. Lizzie’s mother was active in a society founded by New York’s elite black women to promote self-improvement through community activities, reading, and discussion. Thus Lizzie grew up in an atmosphere that stressed equality and activism. In adulthood, Lizzy became a schoolteacher at New York’s African Free School, as well as the organist for her church.

As a “Black History Month” post for Potus-Geeks Live Journal explains, in New York prior to the Civil War, although there was public transportation for blacks, the buses ran “infrequently, irregularly, and often not at all.” Blacks could only board omnibuses designated for whites if no passenger or driver objected, and the drivers carried whips to enforce the practice.

On Sunday, 16 July 1854, Lizzie was late for church, and boarded a streetcar for whites. The conductor ordered her to get off, but she saw plenty of empty seats, and refused. The driver assisted by two other men grabbed Lizzie and threw her out into the street but she picked herself up and climbed back on the streetcar.

Five blocks later, the driver hailed a police officer, who forced Lizzie off the car and Lizzie was at last successful ejected.

Word of Lizzie’s treatment spread throughout her neighborhood, and the incident was reported in the New York Tribune. Her story was further publicized by Frederick Douglass, and received national attention.

A meeting was held at Lizzie’s church at which attendees decided to form a committee and hire a lawyer. Her case was taken on by 24-year-old Chester A. Arthur, the future twenty-first president.

Seven months later, the case, Elizabeth Jennings v. The Third Avenue Railroad Company, was heard in court. Lizzie won her case, and the next day, the “Colored People Allowed in This Car” signs on the Third Avenue streetcars came down. Lizzie was awarded $225 in damages (comparable to over $6,500 in today’s dollars), and $22.50 in costs. The next day, the Third Avenue Railroad Company ordered its cars desegregated. New York’s public transit was fully desegregated by 1861. Furthermore, the New York State Supreme Court, Brooklyn Circuit ruled that African Americans could not be excluded from transit provided they were “sober, well behaved, and free from disease.”

Another case Arthur won, Lemmon v. New York decided by the New York Court of Appeals in 1860, held that slaves being transferred to a slave state through New York would be emancipated.

The Potus Geeks history of the incident recounts:

Lemmon’s lawyers relied on the Supreme Court’s ruling in the 1824 decision Gibbons v. Ogden to argue that states had no right to regulate interstate commerce as that power lay in the hands of the federal government. The state’s lawyers included Chester Alan Arthur, Erastus D. Culver and John Jay. They argued that the U.S. Constitution granted limited powers to the federal government, and the powers which were not granted were reserved for the state. Under the provision of the Fugitive Slave Act of 1850 that required states to return fugitive slaves, the state argued that any requirement for states to return non-fugitive slaves was excluded.

The Court of Appeals affirmed by a vote of 5-3 in March 1860, holding that the slaves were free. Lemmon appealed to the Supreme Court of the United States, but by then the Civil War was under way and the appeal was never heard.”

During the Civil War, Arthur served as quartermaster general of the New York Militia. When the war ended, he got involved in Republican politics and became a part of Senator Roscoe Conkling’s political organization. When James Garfield won the Republican nomination for president in 1880, Arthur was nominated for vice president to balance the ticket as an Eastern Stalwart. (Stalwarts were a faction of the Republican Party that favored patronage systems over merit-based appointments to cvil service.)

After Garfield was assassinated, to everyone’s surprise Arthur shifted policy and advocated and signed the Pendleton Act of 1883, which established the principle that federal jobs should be awarded on the basis of merit, determined by competitive exams, rather than through political connections.

[As a story in Politico points out, initially the act covered only about 10 percent of the federal government’s civilian employees. It included a provision, however, that allowed outgoing presidents to lock in their appointees by converting their jobs to civil service status. After a series of successive party flip-flops at the presidential level in 1884, 1888, 1892 and 1896, most federal jobs eventually came under the civil service umbrella, where they remain to this day.]

Weisberger asserts that “Overall, Arthur conducted a responsible, if undistinguished (and unimportant), presidency.”

Notably, however, he did veto renewed attempts by Congress to restrict immigration from China in response to racist scapegoating following the financial panic of 1873. Congress could not override his veto, but passed a new bill reducing the immigration ban to ten years. Although he still objected to this denial of citizenship to Chinese immigrants, Arthur acceded to the compromise measure, signing the Chinese Exclusion Act into law on May 6, 1882.

Arthur suffered from poor health, and made only a limited effort to get the Republican Party’s nomination in 1884. Shortly after becoming president, he was diagnosed with Bright’s disease, a kidney ailment now referred to as nephritis. But Arthur also realized that the Republican party was not prepared to support him. Thus he retired at the close of his term.

Arthur left office in 1885 and returned to his New York City home. In the fall of 1886 he became seriously ill. On November 17, he suffered a cerebral hemorrhage and never regained consciousness; he died the following day, November 18, at the age of 57. While he was considered a good president at the time, his reputation has faded over the years. Scholars rank him somewhere near the middle of all presidents serving thus far.

September 28, 1868 – Massacre of Blacks in Opelousas, Louisiana

On September 28, 1868, this day in history, between 30 and 150 people died from a riot begun by white residents of Opelousas, Louisiana over African Americans exercising their new voting rights.

After the Civil War, the Southern economy was in shambles. But as Matthew Christensen, writing in 2012 for his history dissertation “The 1868 St. Landry Massacre: Reconstruction’s Deadliest Episode of Violence,” pointed out:

Although economic hardships, disease, and natural disasters were all influential in the lives of Southern whites, the fate of the newly emancipated slaves was their foremost concern.”

Louisiana enacted “Black Codes” in 1865 and 1866 that “reflected white fears and desires regarding the newly emancipated slaves.” Basically, they wanted to keep blacks “in their place” but just without the label of “slavery” attached. When enacting laws didn’t entirely accomplish their goals, they resorted to violence.

As the Equal Justice Initiative reports, white St. Landry Parish voters in the April 1868 election supported candidates who were white supremacists. But there was a large black electorate that voted Republican. EJI recounts:

After half-hearted efforts to sway black voters to the white-controlled Democratic party failed, many white voters in St. Landry resorted to violent intimidation tactics. In response, Republicans like Emerson Bentley, white publisher of the radical St. Landry Progress newspaper, organized and encouraged black people to become politically active. Racial and political tensions continued to escalate as the 1868 presidential election neared.”

St. Landry Parish, Louisiana

Mr. Bentley, who inflamed matters by teaching at a school for black children he had established, was physically attacked by a local judge, and the rumor spread that he had been killed. Republicans in town panicked, and summoned black allies from a nearby town for help. The arrival of armed black men caused the white supremacists to assemble. It was black men who were arrested, of course, and the next night, white forces forcibly removed twenty-seven of the twenty-nine arrested black men from jail and shot them dead, with the sheriff’s full cooperation.

For the next two weeks, murderous violence swept the parish as white mobs terrorized the black community. When the attacks subsided, six white people had been killed, but many more black people were dead. Christensen explains that accurate death tolls were difficult to obtain. Whites certainly were not eager to disclose how many they had killed, and blacks feared retribution unless they remained silent. Thus, Democratic testimonies fell between 23-75 total deaths while Republican estimates ranged between 200-500. Christensen notes that s spokesperson for the far right at that time stated that the Democrats were “well satisfied with the result,” leading one to suspect the high estimates were more accurate.

EJI summarizes the matter thusly:

As a means of political and racial intimidation, the Opelousas Massacre was a great success. St. Landry was one of few Louisiana parishes not politically controlled by Republicans by late 1868. Mr. Bentley and other white Radical Republicans fled the area, leaving a solidly Democratic white electorate, while black voters had learned the consequences of opposing white political will. In the November 1868 presidential election, held just weeks after the massacre and just a few months after St. Landry’s black voters had solidly supported Republican candidates in state and local races, Republican candidate Ulysses S. Grant did not receive a single vote.”

September 18, 1895 – Booker T. Washington Gives “The Atlanta Compromise Speech”

Booker T. Washington’s speech on this day in history to a predominantly white audience at the Atlanta Cotton States and International Exposition is one of the most famous in American history. It was the first speech given by an African American to a racially-mixed audience in the South. In it, Washington suggested that African Americans should not agitate for political and social equality, but should instead work hard, earn respect and acquire vocational training in order to participate in the economic development of the South.

Booker T. Washington in 1903

Washington argued for gradual realization of civil rights for blacks, maintaining that the key to political and social equality lay in hard work and forging alliances with whites who could help them. Blacks later dubbed this speech “The Atlanta Compromise,” believing that Washington had compromised their civil rights. But Washington also asked whites to help blacks and hire black workers. He averred that since African Americans made up one third of the South’s population, they could do much to help with its economic growth. Conversely, if blacks failed, they would be a significant detriment to Southern progress.

Thus, as historian Jacqueline M. Moore, Professor of History at Austin College in Sherman, Texas and the author of several books including Booker T. Washington, W.E.B. Du Bois, and the Struggle for Racial Uplift (2003) argued, when Washington said, “In all things that are purely social we can be as separate as the fingers, yet one as the hand in all things essential to mutual progress,” he really saw himself as striking a bargain with whites to get their economic support in exchange for not challenging segregation.

Washington gained popularity as a speaker after this, even though, as Professor Moore pointed out:

…most whites never followed through on their half of the compromise. Black economic development at the turn of the twentieth century was mainly a result of self-help efforts in the black community rather than white investment.”

Harvard Ph.D. recipient W.E.B. Du Bois, then teaching at Wilberforce University, whose approach to black rights was often contrasted to that of Washington’s, argued that economic equality would not be possible without political rights, and saw segregation as robbing blacks of any dignity Washington hoped them to gain through economic achievement. Washington came to agree with Du Bois in private, but in public maintained his stance of accommodation.

You can read the entire speech here.

Review of “The Second Founding: How the Civil War and Reconstruction Remade the Constitution” by Eric Foner

Pulitzer Prize winner Eric Foner is recognized as America’s leading expert on the history of the period immediately after the U.S. Civil War, known as Reconstruction, during which the North tried to build an egalitarian society. The title of his latest book, The Second Founding, encapsulates his thesis that the changes to American society effected during Reconstruction were so profound they amounted to a new beginning, indeed, a second founding, of the nation.

The principal purpose of the original ten amendments to the Constitution, the Bill Of Rights, was to protect individuals from the power of the new central government. Though the original authors of these documents (often hallowed as “the Founders”) wanted a national government more formidable than the one established by the feckless Articles of Confederation, they sought to limit the power it could exercise over its citizens. But those constraints did not apply to individual states. For example, many of the states continued to have established religions even though the first Amendment forbade the national government from establishing any single religion.

Foner argues convincingly that the Civil War was fought over the southern states’ efforts to preserve the institution of slavery. [Although the declarations of secession by Southern states clearly articulated that the protection of slavery was the paramount impetus for “the immediate cause of the late rupture and present revolution” per Confederate Vice President Alexander Stephens, enough later Southern history revisionists averred that secession was actually about “states’ rights” that the argument has to be constantly re-litigated.] But even though the North had won the war, there was no immediate legal basis for eliminating slavery or for protecting the newly freed slaves from the depredations or their former masters. Ironically, the Emancipation Proclamation of 1863 had “freed” only those slaves still under the control of the rebel armies, leaving slaves in the northern and border states in a legal no-man’s-land concerning servitude.

The legal scaffolding for reorganizing the country took the form of three transformative amendments to the Constitution: the 13th, 14th, and 15th. The 13th abolished slavery. The 14th established birthright citizenship for any person born in the United States “and subject to the jurisdiction thereof,” along with requiring the states to provide “due process” and “equal protection” to all “persons within their jurisdiction.” The 15th prohibited the states from denying the right to vote to any person on the basis of “race, color, or previous condition of servitude.” The effect of these amendments and the Civil Rights Act of 1866 was to attempt to put into practice the ideal of equality expressed in the Declaration of Independence. To that end, the amendments invested substantially more power in the national government and provided the means to make the national government the protector of individuals against discrimination and unfair treatment by states or local governments.

This indeed was revolutionary.

Discussion: Foner is not only superb historian, he is an excellent legal analyst. As an historian, his description of the political maneuvering behind the adoption of the amendments is riveting. But what really stands out in his narration is his explication of the legal niceties behind the language adopted. [Well, maybe that’s just the lawyer in me enjoying some good legal writing.]

Unfortunately, the story of the second founding does not end with the adoption of praiseworthy amendments. As Foner recounts, the language of the amendments left enough wiggle room for malevolent racists in the postwar South to reestablish white race-based hegemony. With the end of U.S. Grant’s presidency in 1877 (Grant was dedicated to ensuring that freed blacks realized their newly legislated rights), national commitment to Reconstruction ended as well. Northern troops were withdrawn from the South. “Jim Crow” laws taking rights away from blacks were enacted in one state of the South after another. The Klan was given free rein to exercise police power over blacks without fear of reprisal. Schools and other public services for blacks were defunded. History textbooks used in southern schools were designed to teach white superiority and black backwardness, so that children imbibed these ideas from the earliest age. These practices persisted until the Civil Rights movement of the 1960s, but did not end entirely. Rather, they took on new shapes; the battle for racial justice continues to this day.

A cartoon from a U.S. newspaper from 1880 reads: ‘Terrorism in the South. Citizens beaten and shot at.” (Granger, via Smithsonian Magazine)

Foner recapitulates the sorry history of how a complicit United States Supreme Court abetted racist politicians and lower court judges in their efforts to eviscerate the original intent of Civil War Amendments for almost 100 years after their enactment. Again, his legal skills come to the fore as he takes us through the intricacies of numerous cases that constitute the corpus of civil rights jurisprudence.

Evaluation: This book is surprisingly brief (only 176 pages) considering the depth with which it treats a complex subject. It’s principal thesis, that the Civil War and Reconstruction completely overhauled the Constitution and the society it governed, is ably and cogently argued. I very highly recommend it for all American citizens.

Rating: 5/5

Published by W.W. Norton & Company, 2019

August 29, 1920 – Birth of Charlie Parker, Influential Jazz Musician

Charles “Bird” Parker, Jr. was an American jazz saxophonist and composer who is considered one of the most innovative and influential jazz musicians in American history.

pe0010-07

He began to play the saxophone at age eleven, and by age twenty was redefining modern jazz through the development of bebop. Apparently he could memorize an arrangement after a single reading, but preferred to play long improvised solos, off-beat accents, and highly complicated melodies.

Playing with other revolutionaries such as Thelonious Monk and Miles Davis, Parker collaborated on recordings and club performances in New York in the mid-1940’s, creating a new sound and a new cultural style.

Unfortunately, Parker was bedeviled by alcohol and drug addiction, and was dead by the age of 34. As a writer for the PBS American Masters Series observed:

“Though Parker was a titan among jazz musicians of the time, it would take the country at large years to learn that for a short while in the 1940s and 1950s one of the most profoundly original American musicians had walked among them virtually unrecognized.”

August 8, 1925 – Ku Klux Klan March in Washington, D.C.

On this day in history, more than 30,000 members of the Ku Klux Klan paraded down Pennsylvania Avenue in Washington, D.C. for over three hours, marching 22 abreast and 14 rows deep, as the Washington Post described the event. At the time, the Klan boasted a national dues-paying membership of nearly 5 million men and 500,000 women.

After the group was rained out later in the day, they reconvened the next day and that night burned an electrically lit 80-foot cross at the Arlington Park race track across the bridge in Virginia.

A number of members of the KKK were politicians – senators, congressmen, and statehouse representatives. Many of them dropped the hoods and showed their faces, which, as the Post avers, was “a rather telling indication that the group, responsible for lynchings and other acts of terror, could operate with impunity.”

In fact, sociology professor Kathleen M. Blee observed for NPR, “the Klan was so mainstream in some parts of the country that local KKK groups sponsored, in public, baseball teams, father-son outings, beautiful baby contests, weddings, baby christenings, junior leagues, road rallies, festivals.”

The Ku Klux Klan marching in Washington, 1925. (Wikimedia Commons)

The Post, drawing on the research of historian Ibram X. Kendi, author of “Stamped from the Beginning: The Definitive History of Racist Ideas in America,” reported:

The revived Klan drew its members not only from the South but from the Midwest and industrial North and saw itself as the protector of white Protestant supremacy. In addition to African Americans, they hated Catholic and Jewish immigrants and feared the northern migration of African Americans.

They also saw themselves as great moralists. In additional to their campaign of terror against African Americans and ethnic minorities, the Klan broke up stills in the name of prohibition and flayed and flogged adulterers in the name of traditional family values.”

The Klan returned to Washington for another parade the next year, on Sept. 13, 1926. However, this time only [sic] 15,000 — less than half the previous year’s crowd — marched.

1926 KKK march in Washington, D.C.

July 11, 1964 – Murder of Lemuel Penn, African American U.S. Army Veteran, in Georgia for Driving While Black

Lemeul Penn, born September 19, 1915, was the Assistant Superintendent of Washington, D.C. public schools, a decorated veteran of World War II, a Lieutenant Colonel in the United States Army Reserve, and the father of three young children. He was murdered at age 48 on this day in history by members of the Ku Klux Klan, nine days after passage of the Civil Rights Act.

Lemuel Penn

Penn was driving home, together with two other black Reserve officers, to Washington, D.C. from Fort Benning, Georgia where they had been training. They were spotted by three white members of a violent KKK group called the Black Shirts in Athens, Georgia, who noticed the D.C. plates on the car. One of the killers apparently said: “That must be one of President Johnson’s boys” and decided to follow the car. He added: “I’m going to kill me a nigger.”

Just before the highway crossed the Broad River, the Klansmen’s car pulled alongside the car of the three black men. Two of the group raised their shotguns and fired.

Penn was killed. The three white men were identified as the ones who chased the trio of Army reservists. The two shooters were tried in state superior court but found not guilty by an all-white jury.

The federal government then successfully prosecuted the men for violations under the new Civil Rights Act of 1964, passed just nine days before Penn’s murder. The case was instrumental in the creation of a Justice Department task force whose work culminated in the Civil Rights Act of 1968.

The case was appealed to the Supreme Court in United States v. Guest (383 U.S. 745, 1966)

The appellees, six private individuals, had been indicted under 18 U.S.C. § 241 “for conspiring to deprive Negro citizens in the vicinity of Athens, Georgia, of the free exercise and enjoyment of rights secured to them by the Constitution and laws of the United States, viz., the right to use state facilities without discrimination on the basis of race, the right freely to engage in interstate travel, and the right to equal enjoyment of privately owned places of public accommodation, now guaranteed by Title II of the Civil Rights Act of 1964.”

The defendants moved to dismiss the indictment, arguing that it did not involve rights which are attributes of national citizenship, to which it deemed § 241 solely applicable, and dismissed the indictment. The prosecution appealed, arguing that the indictment alleged, in part, a denial of rights under the Equal Protection Clause of the Fourteenth Amendment.

Justice Potter Stewart

The Supreme Court held, in an 8-1 opinion authored by Justice Potter Stewart, that protection of the 14th Amendment extended to citizens who suffer rights deprivations at the hands of private conspiracies, where there is minimal state participation in the conspiracy. The Court also held that there is Constitutional right to travel from state to state. If the predominate purpose of the conspiracy is to prevent the exercise of the right of travel, or to oppress a person of that right, as was the case here, then whether or not motivated by racial discrimination, the conspiracy becomes a proper object of federal law under which the indictment was brought. Therefore, the federal indictment was based on an offense under the laws of the United States.

June 21, 1915 – The Supreme Court Decides Guinn v. United States

The 1870 ratification of the Fifteenth Amendment to the United States Constitution barred each state from denying the right to vote on the basis of “race, color, or previous condition of servitude.” In response, several Southern states established constitutional provisions designed to disenfranchise African-American voters without explicitly violating the Fifteenth Amendment.

One of these techniques was the “grandfather clause.” As an online law and legal reference library explains:

There were many varieties of this kind of law, which said that people who had been voting before a certain date–or whose grandfathers had been voting before that date–did not have to register; they were simply allowed to vote. That way, registration rules could be made very complicated, or voter registration could be limited to a short, inconvenient time.”

BlackPast, an African American history site, details how developments in Oklahoma disenfranchised blacks:

Oklahoma’s original 1907 Constitution allowed men of all races to vote. Within one year of statehood, however, the legislature amended the original State Constitution to provide for a literacy test, e.g., the ability to read and write any section of the Constitution of the State of Oklahoma. That provision exempted two classes of individuals and their descendants from the requirement:  1) male citizens who were born on or before January 1, 1866 were entitled to vote; and 2) male descendants of people who at that time resided in a foreign nation were also allowed to vote. This provision allowed white U.S. citizens, as well as European immigrants and their descendants, to cast ballots. The provision also stipulated that a lineal descendant of males in these categories shall not be denied the right to register and vote because of their inability to read and write.  The effect of the state constitutional provision was to prevent former male slaves and their descendants from voting since the vast majority of black males could not vote on January 1, 1866.”

An NPR article on Guinn v. U.S. notes that although African-Americans typically lacked the financial resources to file suit, the NAACP, founded in 1909, persuaded a U.S. attorney to challenge Oklahoma’s grandfather clause, which had been enacted in 1910.

In its unanimous opinion delivered by Chief Justice Edward Douglass White Jr. on June 21, 1915, the Supreme Court ruled in Guinn v. U.S. (238 U.S. 347, 1915) that Oklahoma’s grandfather clause – having been written in a way to serve “no rational purpose” other than to deny African American citizens the right to vote — violated the Fifteenth Amendment to the U.S. Constitution. The convictions of Oklahoma election officials Frank Guinn and J.J. Beal were thus upheld.

Justice Edward Douglass White

However, Justice White unfortunately added:

No time need be spent on the question of the validity of the literacy test, considered alone, since, as we have seen, its establishment was but the exercise by the State of a lawful power vested in it not subject to our supervision, and, indeed, its validity is admitted.”

Having received this “okay” from the court to come up with other ways to take away the vote from blacks, the Oklahoma Legislature met in special session to grandfather in the grandfather clause. The new law said those who had been registered in 1914 — whites under the old system — were automatically registered to vote, while African-Americans could only register between April 30 and May 11, 1916, or forever be disenfranchised.

The Supreme Court struck down this law as well, but not until 23 years later in Lane v. Wilson, 307 U.S. 268 (1939). U.S. Supreme Court Justice Felix Frankfurter, writing for the court, observed that the new 1916 law “was obviously directed towards the consequences of the decision in Guinn v. United States, supra.”

Frankfurter thought there was “no escape from the conclusion that the means chosen as substitutes for the invalidated ‘grandfather clause’ were themselves invalid under the Fifteenth Amendment. They operated unfairly against the very class on whose behalf the protection of the Constitution was here successfully invoked.”

Justice Felix Frankfurter

Voter suppression has continued of course. As the Brennan Center, which chronicles efforts to suppress the vote, argues, over the last 20 years, states have put barriers in front of the ballot box — imposing strict voter ID laws, cutting voting times, restricting registration, gerrymandering, and purging voter rolls. These efforts received a boost when the Supreme Court, in Shelby County v. Holder weakened the Voting Rights Act in 2013, and have kept significant numbers of eligible voters from the polls, hitting all Americans, but placing special burdens on racial minorities, poor people, and young and old voters.

With the surge of Democratic voters in the 2020 elections, Republican legislatures around the country have stepped up their repressive measures. The Brennan Center reports that overall, lawmakers introduced at least 389 restrictive bills in 48 states in the 2021 legislative sessions.