This week Senator Tim Scott of South Carolina, my Senator no less, lectured his colleagues across the aisles about their coining of the term “Jim Crow 2.0” to describe his party’s refusal to even debate the virtues of the For the People and the John Lewis Voting Rights acts. The Senator deserves a rebuttal and some background. I hope he will read it when it arrives today in his email account.
Dr. King and Jim Crow 1.0
The week you spoke in platitudes extolling Dr. Martin Luther King, Jr.as an ambassador of non-violence and as a martyr for justice for all Americans. He was that and more. What is missing in our evaluation of Dr. King and his movement is the depth of his understanding of how powerfully disconcerting the concept of non-violence was—how uncomfortable it made the racists in his midst. King understood that the use of peaceful means of demonstration would only invite the unleashing of violence against those practicing non-violence. King was not naive to this fact. King understood that discrimination came in many forms. It stifled a children’s right to education, a citizen’s right to equal access to goods and services in the marketplace, and to vote. In the Civil Rights era, he deeply understood the power of government to subvert constitutional norms. For that reason, he pushed for the enactment of federal laws to protect the rights of blacks in particular, but generally to innoculate all minorities and the vulnerable in society. His life was lived with an intimate acquaintance with Jim Crow.
Jim Crow 1.0, if you will, was an overt and government-supported set of practices in certain areas of the country, primarily but not limited to those states that had formed the Confederacy. Jim Crow was institutionalized racism whereby states and local jurisdictions passed laws to circumvent the 13th, 14th, and 15th Amendments which outlawed slavery ensured citizenship, and protected the rights of former slaves to vote.
It didn’t take long for the Reconstruction era protections to devolve and for a new, more sophisticated wave of discriminatory practices to introduce what would become known as Jim Crow to newly freed blacks in the South. Recall the lasting impact of the Supreme Court’s 1896 decision PLESSY v. FERGUSON which defined racial norms in the context of the “separate but equal” doctrine that was unconstitutional—but lawful— until 1954’s landmark repudiation in BROWN v. BOARD OF EDUCATION. Discrimination under the earlier ruling made segregation legal (while unconstitutional) across the South. The insidious nature of Plessy proposed that men and women of goodwill could choose to ignore the doctrine but allowed for racists to lawfully practice governmentally sanctioned bigotry. That, Senator Scott, was a feature of Jim Crow 1.0 which persisted in this nation for over a century.
unconstitutional but “legal”
The argument won by racists back then was that the rights of citizens could be acknowledged even while they were not observed. The concept of “separate-equal rights” was an outgrowth of governmental dishonesty because according to the nation’s founding documents, rights were inherent, equality was preordained—no adjective was needed to refine the understanding that all citizen’s rights were equal under the constitution ---that there could in no way be a concept of “separate” rights or different applications of those rights. That, Tim, is Jim Crow 1.0.
The Brown decision was a major development that helped promote the Civil Rights movement of the 1950s and 60s reassert minority rights-— a refutation of Jim Crow and an official recognition of the constitutional authority for basic rights in our country. That is until the Supreme Court decided in SHELBY COUNTY v. HOLDER that legislative protections were no longer needed. The court’s decision (2013) began the unraveling of the 1965 Voting Rights legislation. Chief Justice Roberts wrote for the majority:
The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And §4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty.
--12-96 Shelby County v. Holder (06/25/2013)
The opinion focused narrowly on Section 5 of the Voting Rights Act which proscribed that certain states and counties—mostly situated in the South— were required by the act to seek permission from the DOJ before changing voting procedures because of their use of unlawful means to suppress the vote by minorities in their jurisdictions by use of “tests and devices” that were discriminatory. In South Carolina v. Katzenbach (1966) the Supreme Court rejected the challenge brought by our state, Tim, to the recently passed Voting Rights Act, determining that restrictions were needed in South Carolina and elsewhere to protect the right to vote:
...to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defianceof the Constitution.” South Carolina v. Katzenbach,383 U. S. 301, 309 (1966).
Senator Scott, that history is recent enough to offer a reminder that racism and bigotry persisted in the South even after voting rights were protected by Federal legislation.
Jim Crow 2.0 is a term used to assert that legislation does not necessarily quell the evils of racism and discrimination, but is a necessary tool to ensure that our constitutional rights are preserved in law. The failure to understand both history and human nature evident in Holder can be attributed to the naivete of the Court majority in 2013, and their belief that the conditions that pertained prior to the voting rights legislation in the 1960s had changed. Roberts notes in his summation “that was then, but this is now”:
Nearly 50 years later, things have changed dramatically.Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, supra, at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years.
--12-96 Shelby County v. Holder (06/25/2013)
the indictment of willful ignorance
This past week you talked of “progress” while disapproving of the term Jim Crow 2.0:
“It’s hard to deny progress when two of the three [Black senators] come from the southern states that people say are the places where African American votes are being suppressed. Not to mention that 2020 was a banner year for minority participation in the greatest nation on earth from a voting perspective. And that is, my friends, good news.”
--Sen. Tim Scott, Jan. 19, 2022
Tim, the progress you cite is incongruous with the facts. Three Senators out of 100 represent only 3% of the body.--hardly progress. The Senate has been noticeably lacking in minority representation since its beginning. Even during the Reconstruction era, only 2 seats were held by black legislators, and in the modern era, since 1950, the body sat only 3 black Senators, Edward Brooke (1967-1979), Carol Mosely Braun (1993-1999), and Barack Obama-Roland Burris who both shared the same seat for a single term due to Obama being elected president. Between 1881 and 1967 there were no blacks serving in the Senate. Some progress. The “banner year” for minority voting, Senator, was brought on by the single worst presidential term in office for all Americans, but especially minorities and women, which then heralded in the new efforts to suppress the very vote you celebrate. Not such great news—but you knew that. You also witnessed first-hand the most egregious efforts to stymie that vote, and when that failed, to steal an election.
The GOP and the racists you protect with your misleading barrage of B.S. have adapted and evolved since the Voting Rights Act was first passed. Since its enactment, it has been reauthorized and amended five times with large, bipartisan majorities. As I write, Republicans are now enacting new “tests and devices” to suppress minority voters precisely because the Voting Rights Act worked so well!! They have made the calculation that they would prefer not to compete for voters any longer, but to retain power by reverting to form. Senator, serving your corporate interests, white nationalists, and the worst among us may be more profitable in the short term, but in the long term, it is a loser. It will devour the party as it has devoured you.
Jim Crow 2.0, Senator Scott, is about denial of the Constitutional norms you swore to uphold. It is about denying the rights of Ahmaud Arbery’s right to jog; of George Floyd’s right to breathe; and of the Mother Emanuel victims’ rights to worship. Through gerrymandering and by enacting state laws restricting the rights of minorities in this country to seek legal redress at the ballot box, your Republican Party has chosen to resurrect Jim Crow. Suppressing the right to vote is more than unconstitutional, in too many cases and for too many black citizens in America, it is lethal. Call it what you will, but Jim Crow 2.0 may sound trite to you, but it describes rather succinctly what is going on here. Your inability or. more likely, reluctance to recognize its existence is a window into your character. It will define your time in office, and more, your time on earth. It explains the role of tokenism as a tactic in the service of autocracy. After what you have witnessed in your most recent term in office under the guise of ”Trumpism”, your willful denial is nothing less than collaboration. You have missed your final opportunity to save your own soul, your own dignity. And when Republicans are through—when they are either victorious in their evil plans, or are themselves subverted by the constitutional guardrails designed to protect the rights of all of us-— they will be through with you. That, Senator Scott, is your legacy--forever defined by your usefulness to the cause of the current fascist movement, the poster boy of sorts to the iniquities of Jim Crow in all of its manifestations:
Mark. 8 Verses 36 to 38
 For what shall it profit a man, if he shall gain the whole world, and lose his own soul?  Or what shall a man give in exchange for his soul?
What is the current value of a soul, Senator?