When we have rights, it’s easy to take them for granted. It’s when they are contested that they matter most. Today, I write about two very different examples provided by the U.S. Supreme Court and the movement for Scottish independence.
There have been many times in my adulthood that I questioned the meaning of voting. I have friends who dismiss the whole system as so hopelessly corrupt that voting has been reduced to a form of what sociologist Erving Goffman called “cooling out the mark”â€”making the person who is being cheated feel better about it. And there’s a truth to the Tweedledee/Tweedledum argument about the two main parties that have so far dominated every modern U.S. election. If nearly every candidate’s journey is lubricated with corporate money, how much actual (versus symbolic) meaning does the two-party distinction have?
But one thing has always settled the question for me: the meaning of the right to vote should be assessed by who had to fight for it and how hard. In recent elections, right-wingers have spent vast amounts of money and energy on voter discouragement tactics such as telling people they’ll be arrested if they show up at the polling-place with outstanding parking tickets, or aggressively publicizing the wrong voting days and sites. It always comes down to an anecdote I heard in the late 80s that banished my doubts once and for all: a young man, an exchange student from apartheid South Africa, remarked of other students he’d met visiting Washington, DC. “I don’t understand,” he said. “All the rights we are fighting and dying for, you have. But you don’t use them.”
We’ll never know the full value of the franchise until everyone of voting age has it without impediment; and the vast majority of us use that right to make ourselves heard. In pursuit of that aim, progressive groups have joined together to create FreeToVote.org, supporting a constitutional amendment that guarantees the freedom to vote with national minimum standards for free, fair, accessible elections.
On 25 June, the Supreme Court issued a decision in Shelby County v. Holder, a case brought by Shelby County, Alabama, challenging provisions of the Voting Rights Act of 1965. (You can find a summary at the New York Times, with a link to the full text of the decision.) The Act was propelled through Congress by a profound thirst for racial justice propelled by the spectacle of civil rights activists standing up for legal equality in the south despite a hailstorm of hoses, billy clubs, and much more lethal weapons deployed to defeat them.
The Court ruled Section 4 of the Act unconstitutional, overturning a formula that has long been used to determine where some of the Act’s extra protections of voting rights apply. In essence, Section 4 established conditions for fair elections before the fact; targeted districts had to obtain “preclearance” from federal oversight authorities. With that provision struck down, things like voter i.d. laws and limits on early voting can only be challenged after the factâ€”after the election in question. Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito argued for the majority that times have changed, that historical records of discrimination shouldn’t dictate current policy, and that the Act put an unfair burden on those states subjected to its provisions: one state had to clear things with the feds, whereas the state next door was free of those requirements. Thomas wanted to go even further, striking down other key provisions, but failed to convince a majority.
Wednesday’s Supreme Court decision on same-sex marriage puts Justice Kennedy in dual roles as hero and villain of the hour: hero for making a five-member majority in overturning the Defense of Marriage Act; villain for aligning himself with a bloc indifferent to racial justice on the Voting Rights Act.
Ginsburg, Breyer, Sotomayor, and Kagan dissented from the majority on voting rights on the grounds that protections are still needed, and that this Court failed to exercise the same care and consideration Congress had used in reviewing and renewing the Act each time it came up. Ginsburg concludes:
But the Court disregards what ConÂgress set about to do in enacting the VRA. That extraorÂdinary legislation scarcely stopped at the particular tests and devices that happened to exist in 1965. The grand aim of the Act is to secure to all in our polity equal citizenÂ ship stature, a voice in our democracy undiluted by race. As the record for the 2006 reauthorization makes abunÂdantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictionsâ€¦. The sad irony of todayâ€™s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRAâ€™s success in eliminating the specific devices extant in 1965 means that preclearÂance is no longer neededâ€¦. With that belief, and the argument derived from it, history repeats itself.
Behind Ginsburg’s statement is a critical truth about the culture of U.S. politics: when we fail to remember, repeat, and internalize the powerful stories that teach our finest achievements and remind us of who we really are, the lessons of history are lost and we must relearn them.
My previous blog touched on the campaign for Scottish independence, notably a paradigm-shifting speech by Scottish Culture Secretary Fiona Hyslop which ended with a rousing call to vote yes in the September 2014 referendum on Scottish independence. When you say the phrase “cultural policy” here in the U.S., except for a few wonks, it tends to land limply, just another abstraction hitting the dust.
But when you say it in a place where cultural self-determination has taken on a very concrete and immediate meaning, it resonates. Case in point: this past week, a group of Scottish artists and activists have called upon the government to adopt a new, participatory cultural framework for Scotland. Here’s the first couple of paragraphs of their petition on Change.org:
We see state support of autonomous creative expression and its communication as key to a modern democracy. Sustaining the independence of producers and makers is essential to activity across all sectors.
The development of freedom of thought and the capacity to empathise with difference and otherness is central to life beyond mere survival. It follows that culture is not static but something we as citizens can change and shape in its complexity. People can collectively determine their own political, social and cultural reality.
Yes we can: but only if we recognize, cherish, and ceaselessly pursue the rights that those who came before us fought so hard to secure. And the cultural rights for which we are still fighting this very moment. This week, the U.S. Supreme Court majority did the opposite, dismissing hard-won rights as entitlements (demonstrating a predictable blindness to their own entitled and highly privileged status). Shame on them.