When Virginia WASN’T for ALL lovers

A heartfelt tale of courage and love

When I saw the trailer in the theaters for this film, I was concerned about what direction the writer/director was going to take this true story of love, courage, and persistent principle.  As a long-time high school teacher of US Government, I have a reverence for the Constitution of the United States.  The times our federal government has violated individual civil rights has, with very few exceptions, been the times where our laws have either violated or ignored those rights.  More rights have been violated because of our ignorance of our founding protections than due to any other reason in history.

Americans should know their Constitution backward and forward.  It’s is the protection of all.  Holding our laws elected representatives accountable for adhering to those founding documents is the only way to protect people, property, and individual freedoms.  So often, my wife and I looked at each other and grieved during this film.  A simple knowledge of the rights of the individual, and the restrictions of the powers of government to infringe on those rights, would have prevented the horrible miscarriage of justice that these two lovely people sustained. 

The promise of public education today no longer is simply whether you can add a sum of numbers or quote from a popular book.  At the heart of our children’s knowledge base should be their understanding of what governments can and can’t do.  Add to that the things that government should and should NOT do. 

As I watched the agony of what the Lovings endured as a result of Virginia’s anti-miscegenation laws (16 states had them at the time, all in the south) I wanted to yell at the screen:  “This is why Congress passed the 14th Amendment!  Your marriage certificate should be honored due to Article IV of the Constitution!”  Their local attorney should have at least explained those arguments to them.  What the heck am I talking about?  Let me explain…

Early in the film, when Mildred discovers she is pregnant, Richard tells her he wants to marry her, but because of state law banning interracial marriage they had to drive to the District of Columbia in order to get married.  After they get back, Richard mounts the marriage certificate on the wall of their bedroom almost like a talisman to ward off the evil spirits of the authorities in Virginia.  I don’t want to give away the complete narrative of the story, but Article IV of the Constitution would have been my first challenge to the arrest of the Lovings in July of 1958.  The “Good Faith” clause of Article IV of the Constitution says, in part, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”  Certainly a marriage certificate is a public record of such an act.

This means that the State of Virginia should have been required to honor their marriage certificate.  I used to explain to my US Government students that when the first state legalized same-sex marriage, that it meant that all states would have to recognize any marriage certificate from any other state.  I suppose it could be argued that since the District of Columbia was not an actual state, that Virginia was not required to honor it, but I would have been eager to be the attorney to attack that argument.

But the eventual successful challenge to the southern racial marriage laws came down to the ruling that they were a violation of the 14th Amendment.  The 14th was specifically crafted by the post-Civil War congress to deal with exactly this kind of law.   The south created local restrictions on the “freedmen” as they were called.  Certain professions were off-bounds, activities were proscribed, and included among these prohibited actions were interracial relationships, whether marital or simply carnal.  These local ordinances were known as the “black codes.”  When the Congress heard of these restrictions, they passed, and then ratified, the 14th Amendment to the Constitution in 1868, just three years after the war.  They felt so strongly about the importance of protecting such freedoms that each southern state being readmitted to the Union, after revoking it’s ordinance of secession, was also required to ratify the three “Civil War” amendments, including the 14th.  It reflected the federal government’s expectation that the “prodigal” former Confederate states would be prohibited from keeping their racist ordinances.  In fact, part of Chief Justice Warren’s opinion on the case, unanimously supported by the other justices, said “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.  The 14th Amendment should have protected all interracial couples from 1868 all.

But the fraudulent election of 1876 undid all those protections.  In order to win the Electoral College count for Republican Rutherford Hayes, the Republican Congress cut a deal with the devil and ended federal Reconstruction in the south, abandoning the freedmen to white ex-confederate control in exchange for the electoral college votes of a few southern states.  Books have been written on this subject that would more fully explain what I am trying to make clear.  The key point is that the North threw up it’s hands and gave up trying to “reform” the south’s racist roots.  Secession had been defeated and the southern states had rejoined the Union, but the north decided it was a fool’s errand to try to force the south to change it’s attitude about it’s black population.  It was 1877’s version of “failed nation building.”  So began almost a century of second-class citizenship for America’s southern blacks.  In order to keep order, and keep the “white race pure,” miscegenation laws were passed throughout the south.  Marital and sexual congress between the races were banned.

While school desegregation was at least moving, but at a glacial pace, as the result of the Brown vs. Board of Education decision in the 1950s, no state wanted to take any steps that would further confuse who was “white” and who was “colored” by further mixing the races through allowing relationships that might produce mixed-race offspring.

The prosecution of the Lovings in 1958 would have been seen by many in the south as a necessary legal stand to push back against the advance of racial strife and preserving the rights of states to decide issues that had always been state issues rather than questions for the federal government to get involved in.  Northerners saw federal troops protecting black students at Little Rock High School as enforcing equal rights for blacks against a recalcitrant racist south.  Southerners saw federal troops in Little Rock High as modern day military reconstruction occupation forces and federal interference with local ordinances that had kept “the peace” since the 1880s.  It’s easy to see who was wrong, but it’s important that today’s reader see how the “Rashomon” effect could be at play in the civil rights movement and conflicts of the 1950s and 1960s without excusing it.

As you read this blog, think on this…where did you go through middle school and high school?  If you learned your US History in the North or West, you learned very little about Reconstruction after the Civil War.  Heck, you were taught that the “Civil War” was all about slavery and the need for it’s elimination.

If you learned your US History in the south, there is a good chance you learned A LOT about Reconstruction after the Civil War.  You may have even been taught that it wasn’t a Civil War (this is a true statement.  Sometime, I’ll have to do a blog on this, but the “American Civil War” was not actually a civil war.)  Southerners were taught about “the War Between the States” or “The War of Northern Aggression.”  (I’m serious here.  I married into a southern family for several decades, and these are critical distinctions for them)  Most northerners are unaware that Reconstruction is a ridiculous misnomer.  Little was rebuilt as much as southerners saw it as an attempt of northerners to rebuild southern society in the image of the north.  Northern students, like me,  were told the war was over, the North won, the slaves were freed, and things got much better…until rich “robber barons” took advantage of poor immigrant laborers who created labor unions to fight back.

NOTHING is taught in most northern classrooms about the years of federal military rule in the south, the confiscation and redistribution of southern lands, the decades where ex-confederate soldiers and local officials were denied the right to run businesses, the right to much of their own  land, and even the right to vote.  The bitterness against the freedmen down south was as much about their collaboration with federal reconstruction as it was about pure racism.  Southerners are very aware of this history, northerners are woefully ignorant.

What does this have to do with the Lovings?  It certainly is NOT a rationalization excusing what happened to them, but it continues to be at the heart of so much conflict in this country:  local power versus federal authority.  It’s this question that pitted Alexander Hamilton’s Federalist party against Thomas Jefferson’s opposition, which became the Democratic-Republican party.  By the time Andrew Jackson renamed it the “Democrat” party, Jefferson’s party had become the party that opposed federal authority and enabled the earliest versions of “black codes” preventing slave education, evicting native tribes from their lands in the south to grow a booming cotton economy,  and restricting even those free blacks who had bought their freedom.

What Richard and Mildred Loving were able to do, with the assistance of Life Magazine and the growing influence of television news, was to humanize individual people.  To help Americans evolve their attitudes about “negroes” from racial stereotypes and see them as individual people.  The movie Loving makes us feel it is somehow inconceivable that it was ever considered “ok” to tell people who they could and couldn’t marry or have a relationship with (their case was an important precedent in the Oberkefell case that opened up same-sex marriage).  In the end, Loving may lead to a much more libertarian view by society that even the most well-intentioned societal legislation can be oppressive even if with the intention of doing good.  19th century southern society thought it was doing good by preserving the racial stratification that had served them well for centuries.(they believed it even kept things peaceful for black society.  They “knew their place”) 

It’s easy to see the injustice the Lovings endured today.  The film does a great service by giving us such a beautifully portrayed telling of their tale.  It forced me to ask an important question.  Are we seeing any other “acceptable” injustices being committed today all in the context of what we believe puts us on “the right side of history?”  Right side of history, indeed.

The difference between a “democracy” and a “republic”

The Framers of the US Constitution
The Framers of the US Constitution

It was kind of fun researching this short little civics post because something as simple as a definition of “democracy” was unclear.  Webster defines a democracy thus – “government by the people; especially :  rule of the majority.”  If you Google a definition you get – “a system of government by the whole population or all the eligible members of a state, typically through elected representatives.

That’s a big difference.  It’s the “typically through elected representatives” that is the key difference.  That’s actually a republic.  I used to tell my students on day one of my US Government classes that the USA is NOT a democracy.  They blanched as I paused for effect…”we are a republic.”  The difference is important.  A true democracy is simply rule by majority.  It failed in ancient Athens.  Republicanism lasted longer in Rome.  The Framers of the US Constitution never intended to create a democracy.  I go into this a bit in my post on the Electoral College as it is an excellent example of “republican” structures to our governance.

I wrote that post the day of the election assuming, as most did, that the winner of the election was likely to win both popular and electoral voting.  But I was also mindful that we have had many elections in our history where the two tallies did not have the same “winner.”  I even went into some of the reasons why it’s a good thing that it isn’t;  I welcome blog readers to review that post.  I stand by the importance of having a winning candidate not win, mainly, by heavy vote totals in a few urban areas.  Mrs. Clinton’s popular vote “victory” is solely through her heavy vote margin in California.  Both candidates knew that states, not individual votes, determine our presidential elections.  They would have campaigned differently if it had been a “popular vote” election.  We will never know for certain how that contest would have ended.

Looking at the differences of the two, republic and democracy, the most important reason to favor a republic is to keep the majority from violating the rights of the minority.  They were mainly concerned about protecting property, but today we would be concerned about religious, racial, social, gender, and other minorities having their rights protected from the majority using it’s “votes” to infringe the rights of individuals.

America’s republic is actually unique in the world, chiefly because of the unusual way the United States of America came into existence.  Thirteen individual republics of diverse economic, religious, and ethnic populations surrendered significant powers of autonomy in order to unite into a single country, but not a unitary government.  This is a key idea to understand. 

When the American War for Independence ended with Great Britain granting the thirteen colonies their statehood, thy didn’t imagine a unified country resulting.  The agreement between the states that was created right after they declared independence, called the Articles of Confederation, was openly defined as a “firm league of friendship” but also as sovereign states, NOT a single country.  When it threatened to completely unwind, the Constitutional Convention resulted in a proposed new government that would have the states surrender SOME of that sovereignty, but not all. 

Today, we have many reasons that we remain a nation of identifiably separate states.  Think about it: Texans have preserved their rights to have open beer and rifle racks in their pick up trucks, Coloradans can go to the mall to buy pot, and Californians issues driver’s licenses to undocumented individuals.  As long as it doesn’t conflict with federal law,  states have their own culture, identity, and character, as well as a division of authority in  America’s federal republic.

We are also witness to an ongoing public protest over the rights of indigenous people in North Dakota that is another example of our republican (remember, small “r!”) form of government.  The different governments all play a role (in some cases, NO role) due to the different levels of government that have an impact in the Dakota Access Pipeline story. 

Some have asked me whether the republican government will play out in the case of the election and the DAP dispute.  I think I can give an answer that I feel fairly certain of because of the way this will work their ways through the levels of authority and through our court system.

The election: The recounts won’t change the ultimate result.  Michigan has already done it’s recount because they were so thorough from the night of the election on.  Dr. Stein may file papers in court, but the courts know that the authority for determining the accuracy of the election is up to the Secretary of State’s office in Michigan.  They have announced and verified the results.  Unless Dr. Stein has widespread evidence of “hacking”, mistakes, or fraud, that one’s over.  Wisconsin will do a “recount” which is basically a re-totaling of the votes.  Actually, last reports have increased Trump’s margin by almost 500 votes.   Pennsylvania said Dr. Stein’s petition was too late.  In all three states, she can always go to court but, absent any evidence, no judge will take away the Secretary of State’s authority in those cases.  Expect the Electoral College to vote with very little controversy on December 19th.  Sure, a few electors may change their votes…but…38?

The Senate will verify the count on January 6th, and the Trump-Pence inauguration will happen on January 20th.  The reason I am so certain of this is that voting results are the responsibility of the states, NOT the federal government.  All the feds do is report the certified results that the states report to Washington, DC.  It’s a reminder that there are MANY areas that states have the authority in:  Driver’s licenses, marriage licenses, property taxes, school authority, police (we are one of the few countries that does NOT have a national police force), etc.

Dakota Access Pipeline – There is no question that a lot of attention has been paid to this dispute.  The sad thing is that the federal government has been VERY pro-active in trying to work with the native tribes in the area over recent years.  Wait, why is Keith now talking about the Federal government in this?  Because state governments have no authority in relation to the native tribes; it’s in the constitution, this is an area of federal government authority…only.  So, can the US Government stop this?  Probably not.  They can delay it, they can interfere with it, but the companies have already been granted access and ownership of certain areas.  In the end, perhaps after more negotiations, changes, and court hearings, the pipeline will be built. 

So why should we keep a republic?  Wouldn’t a democracy be “fairer?”  In some cases, perhaps, like those who take the side of the tribes in the DAP debate.  But what if what the majority wants to take next time is YOUR individual rights?  I am a member of a small religious minority.  In the 1990s there was a nationwide movement to deny us some of our most important rights of our families.  This succeeded in some laws being passed that restricted certain of our important religious principles.  Many saw this as “common-sense restrictions of ‘weird’ religious cults or sects.”  Fortunately, higher courts saw these laws as a violation of our First Amendment freedom of religion and these laws were thrown out and some members who has been convicted in court in violation of that freedom found redress under these higher court rulings.

This highlights the second, and in my mind most important, aspect of a republic.  It’s rule by law, NOT by majority.  Is it possible that the tribes might get redress because of the “rule of law?”  Absolutely, that is their best course of action, not torching construction equipment or obstructing the company workers.  The fact that they DON’T seem to be going that direction suggests to me that their attorneys have told them the pipeline company has the law on their side.

I would suggest that the best path for the tribe is to go to court, or go on TV to plead with the public to change the law.

That’s the way things are resolved, peaceably, in a republic.   Cheers.