This month, a panel of 13 judges from the 4th Circuit Court of Appeals in Richmond heard testimony in a challenge to President Trump’s executive order banning immigration from six nations that have Muslim-majority populations. In Seattle last week, the 9th Circuit Court also questioned lawyers from both sides on the order. Opponents of the ban have argued that it violates the First Amendment’s requirement that the government not favor one religion over another. Trump’s campaign rhetoric (he called for “a total and complete shutdown of Muslims entering the United States”) seems to support such a view. On the other hand, attorneys for the administration said that “this is not a Muslim ban. Its text doesn’t have anything to do with religion. Its operation doesn’t have anything to do with religion.”
That’s an interesting point. How can an order that never mentions the word “Muslim” be considered a Muslim ban?
It might be useful to consider a historical analogy.
In the late 19th century, Mississippi’s Democratic leaders were concerned about the state’s political future. Democrats had controlled Mississippi since the end of Reconstruction, but the black population was growing, and Republicans (at the time, the more civil rights-oriented party) had just gained control of both houses of Congress and the White House. How could Democrats ensure that they would stay on top?
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If only there were some way to limit the black vote, they would be safe. If only they could pass a law that said, “Negroes may not vote in Mississippi,” that would settle it. But the Fifteenth Amendment prohibited states from denying anyone the right to vote “on account of race, color, or previous condition of servitude.” So this is the problem that white Mississippians faced: how to cut out the black vote without looking like they were cutting out the black vote.
In 1890, the state called for a special convention to revise the state constitution and add a set of new voting qualifications. The purpose was clear. A delegate from Tallahatchie County noted that “the white people of the State want to feel that they are protected not only against the probability but the possibility of negro rule and negro domination.”
First among the new voting qualifications: a prospective voter had to prove that he had lived in the state for two years, and in the voting district for one. This cut out people who moved frequently, such as African American sharecroppers. Second, men convicted of certain crimes were denied the right to vote. Those crimes included arson, bigamy, theft, and similar crimes that had a much higher conviction rate among blacks. Third, payment of a poll tax became a pre-requisite for voting. Though the tax was fairly small, poor Mississippians found it to be a significant hurdle to registration.
Finally, a literacy requirement fell most heavily on African Americans. Prior to the Civil War, it had been illegal to teach Mississippi slaves to read, and public education after the war was very poor – for both races, but especially for blacks. An “understanding clause” allowed registrars to approve anyone who, though illiterate, was smart enough to understand a portion of the state constitution. This was a loophole that allowed illiterate whites to register. (One delegate noted that “the registrar could determine who would qualify by choosing hard or easy sections of the constitution” to be understood.)
The new voting qualifications were terribly effective. During Reconstruction, almost 70 percent of adult black males in the state were registered to vote; in 1892, two years after the new constitution, the figure was a dismal six percent.
Now we are faced with a similar situation. Like the Mississippi Plan, as it came to be known, Trump’s initial executive order of January 27 never mentioned the targeted group (African Americans and Muslims), and it included a loophole for the “right” kind of people (poor whites and Christians). The revised order of March 6, which is the one now under consideration, dropped the Christian loophole, replacing it with a waiver allowing entrance “if the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship.”
In Williams v Mississippi (1898), the U.S. Supreme Court ruled that Mississippi’s voting qualifications did not violate the Fifteenth Amendment, because “they do not on their face discriminate between the races.” Nowhere did the word “black” or “Negro” appear in the list of qualifications. According to the Court, the African American plaintiff was denied the right to vote because he was unable to pass the literacy and poll tax requirements, not because of his race.
Perhaps today’s judges are better able to see through this ruse.
Parker, a former Charlotte resident, is a Professor of History and Assistant Chair of the Department of History and Philosophy at Kennesaw State University in Georgia.