‘This Is Jim Crow in New Clothes’

Senator Raphael Warnock gave his first speech on the Senate floor on Wednesday. The subject? Voting rights.

“We are witnessing right now a massive and unabashed assault on voting rights unlike anything we have seen since the Jim Crow era,” Warnock said, pointing to a wave of bills that limit voting in Republican-controlled states like Arizona and his own Georgia. “This is Jim Crow in new clothes.”

He went on:

Politicians in my home state and all across America, in their craven lust for power, have launched a full-fledged assault on voting rights. They are focused on winning at any cost, even the cost of the democracy itself. I submit that it is the job of each citizen to stand up for the voting rights of every citizen. And it is the job of this body to do all that it can to defend the viability of our democracy.

To that end, Warnock argued, the Senate should pass the For the People Act, which would establish automatic voter registration nationally, provide for at least two weeks of early voting and preserve mail-in balloting, as well as the John Lewis Voting Rights Advancement Act, which would restore pre-clearance to the Voting Rights Act, forcing covered jurisdictions to submit new voting plans for federal approval.

While these bills are important — I’ve written about them before — I want to set them aside, for now, to focus on the fact of the speech itself. Warnock is the first African-American to represent Georgia in the Senate and only the second elected from the South since Reconstruction. His presence on the Senate floor is historic just on its own. It represents progress — and yet it is also evocative of the past.

A Black lawmaker from the South, urging his mostly white colleagues to defend the voting rights of millions of Americans is, to my mind, an occasion to revisit one particular episode in the history of American democracy: the fight, in Congress, over the Civil Rights Act of 1875. The first Black members of the House of Representatives, some of them former slaves, were prominent in this battle. They saw the bill as vital in the fight against discrimination and race hierarchy. Their arguments still resonate in our own time and found echoes in the Rev. Dr. Warnock’s speech.

The bill that would become the Civil Rights Act of 1875 was first introduced in January 1870 by Senator Charles Sumner of Massachusetts, a Radical Republican and ardent opponent of slavery and race discrimination. As originally written, Sumner’s bill would,

Secure equal rights in railroads, steamboats, public conveyances, hotels, licensed theaters, houses of public entertainment, common schools, and institutions of learning authorized by law, church institutions, and cemetery associations incorporated by national or State authority; also on juries in courts, national and State.

It would, in other words, ban racial discrimination in public accommodations in a way that was similar to what would eventually become law more than nine decades later with the Civil Rights Act of 1964.

Sumner struggled to bring the bill to the Senate floor. As the legal scholar Aderson B. Francois explains in his essay, “The Brand of Inferiority: The Civil Rights Act of 1875, White Supremacy and Affirmative Action,” it was blocked in committee in 1871 and then blocked again as an amendment to a different bill the following year, killed by a Democratic filibuster. Sumner tried again in 1873, introducing a modified version of his civil rights bill in conjunction with a similar proposal in the House. This revised bill added a clause that stated that “no citizen of the United States shall, by reason of race, color, or previous condition of servitude, be excepted or excluded from full and equal enjoyment” of “common schools and public institutions of learning, the same being supported by moneys derived from general taxation or authorized by law.”

It was the schools clause that proved especially controversial. Radical Republicans, notes Francois, “viewed school desegregation as a necessary component of achieving a truly colorblind nation.” Their opponents saw school desegregation as collapsing a distinction between public rights and social rights that would allow the government to “invade all provinces of an individual’s life.” When Republicans tried, in 1875, to pass the civil rights bill in a lame duck session of Congress, it was the schools clause that proved impossible to bring across the finish line.

The half-dozen Black members of the House of Representatives were present in these final debates. And as their fellow Republicans struggled to pass the civil rights bill, these lawmakers used the debate to devise what Francois calls a “counter narrative to white supremacy” that repudiated Black inferiority in favor of a “vision of human equality.” They stood before their colleagues and demanded their due as Americans.

“It is not social rights we desire,” Representative John R. Lynch of Mississippi, a former slave, said. “What we ask is protection in the enjoyment of public rights. Rights which are or should be accorded to every citizen alike.”

Representative James T. Rapier of Alabama declared,

I look to the Government in the place of the several States, because it claims my first allegiance, exacts at my hands strict obedience to its laws, and because it promises in the implied contract between every citizen and the Government to protect my life and property. I have fulfilled my part of the contract to the extent I have been called upon, and I demand that the Government, through Congress do the same.

Representative Richard H. Cain of South Carolina was similarly direct:

I want to say we do not come here begging for our rights. We come here clothed in the garb of American citizenship. We come demanding our rights in the name of justice.

We come here, Cain continued,

asking that unjust discriminations against us be forbidden. We come here in the name of justice, equity, and law, in the name of our children, in the name of our country, petitioning for our rights.

The civil rights bill passed Congress in February 1875, nearly a year after Sumner’s death. It did so without the schools clause. Within a decade, the Supreme Court would rule that Congress had no power to outlaw discrimination in public accommodations, killing the law and vastly limiting the scope of the Fourteenth Amendment, which had been ratified in 1868. By the end of the century, Jim Crow was in place throughout most of the former Confederacy. In 1901, George Henry White of North Carolina left Congress after two terms in the House. It would be over 70 years before the South would send another Black American to Washington.

Senator Warnock is part of that legacy. His speech is also part and parcel of a Black tradition of calling on the government to fulfill the nation’s professed values. The question, as always, is whether Congress will actually act to secure democracy for all of its citizens and whether we’ll withstand the inevitable backlash if it does.

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