Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision. Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional. But if Plessy was not wrong, how is it that Brown came out so differently? The language of the Constitution’s guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be hard to say that the obvious facts on which Plessy was based had changed, either. While Plessy was about railroad cars and Brown was about schools, that distinction was no great difference. Actually, the best clue to the difference between the cases is the dates they were decided, which I think lead to the explanation for their divergent results.
Plessy is a favorite entry in the "anti-canon" those cases we love to refute, seeing them as grave injustices. Souter's point was not that we should simply accept such cases as legitimate at the time, but still reminded us that it is important to put them in context of those times. One of the guests [known for his pushing back originalist defenses of Brown] this week challenged a statement by Justice Thomas honoring Harlan's dissent. Courts operate based on a sort of Overton Window of the possible. If they suddenly did not generally there will be pushback and it would not be allowed long term. And, it is the nature of real life judging.
A couple weeks ago, we saw how the Supreme Court 8-1 struck down a congressional requirement to not discriminate by race in certain public accommodations. It was seen as not authorized by the Fourteenth Amendment. Then, we had a case where unanimous court struck down a particularly racist application of a local law. We are back to normal reality and the inequality two-step complete -- now, even if there is state action, it is acceptable if it is "separate and equal." (More should have been said about how that in practice turned out to be an illusion.)
The die was cast here by the end of Reconstruction or even before: Congress allowed segregation of D.C. schools in the 1870s. Let it be noted, by the way, that even Justice Harlan accepted segregation in public schools (when a state interfered with a private college, Harlan dissented, but specifically differentiated here). Harlan's language (at least not the parts about the white race being superior or how the Chinese are unfit) in his dissent is taken more broadly than its author felt warranted. A public streetcar to Harlan involved "civil rights" while public schools or marriage involved "social rights" that are of a different caliber.
(It was noted on the show that after the creation of the Interstate Commerce Commission, a finding of unreasonable restraint on commerce was barred. Nonetheless, the agency determined segregation was not unreasonable. This would eventually be deemed wrong in the 20th Century, but it shows what the plaintiff -- who was 1/8 black -- was up against.)
What was possible here? Realistically, I think it was possible in the Civil Rights Cases to uphold at least part of the law at issue since there was enough state action and effect on interstate commerce. But, the die was probably cast by the restrictive way federal civil rights laws were applied in the 1870s. Here, segregation was readily accepted for years as reasonable. An argument can be made that the text of the Fourteenth Amendment makes it not so and some courts right out of the gate so held. But, at the time, the "ordinary understanding" was that segregation was not barred. Again, even Harlan thought many race based laws acceptable.
This doesn't mean that it was a "right" approach. It isn't too hard to read the majority opinion here and find specious arguments, like any sign of racism is only in the minds of the challenger. There is an exception here for nurses of children and I doubt a broader exception for other types of servants would be deemed arbitrary. So, segregation was the rule only up to a point. As noted above, actual equality was repeatedly not the rule, underlining separation often means unequal. We even see this regarding separate bathrooms for men and women: the bathrooms repeatedly are not the same. Any separation there is based not just on privacy concerns but a belief of actual differences.*
We also have this from the majority:
A statute which implies merely a legal distinction between the white and
colored races -- a distinction which is founded in the color of the two
races and which must always exist so long as white men are
distinguished from the other race by color -- has no tendency to destroy
the legal equality of the two races, or reestablish a state of
We saw earlier that Justice Harlan had a broad view of the reach of the Thirteenth Amendment and republican values in general here. A public streetcar involved the "public," and people were on equal footing here, race not coming into it. Moving past that, the argument here in general has an assumed "given" to it -- why should they be so distinguished? And, evidence that segregation will at least have a "tendency" to destroy legal equality is evident. Harlan had some "let's be serious" comments here but generally speaking, if only some people can travel with a white person, some sort of legally inequality is being established. It also amounts to an infringement of one's right to association.
The argument also assumes that social prejudices may be overcome by
legislation, and that equal rights cannot be secured to the negro except
by an enforced commingling of the two races. We cannot accept this
proposition. If the two races are to meet upon terms of social
equality, it must be the result of natural affinities, a mutual
appreciation of each other's merits, and a voluntary consent of
Again, it is questionable if being able to intermingle without being separation by race on a streetcar is merely "social" equality. In practice, generally speaking, the argument here is unsound. Yes, social prejudices might be furthered by legislation and be combated by them. "Overcome" is a strawman in that respect. And, equality of citizens and persons in general overall in public places is furthered by not artificially limiting commingling. The argument here is one-sided. A group very well might want to commingle, including in a single car, but they are not allowed.
In his dissent, Justice Harlan returned to his Civil Rights Cases argument that "public highways" bring in state action that bar race based restrictions of this sort. The anti-black nature of the rule is something "everybody knows" and "no one would be so wanting in candor a to assert the contrary." Discriminations among whites isn't the rule though logically it very well might be [the resurgence of the KKK, which the second time around expanded to anti-Catholic and Jew].** The likely negative results, including a "feeling of distrust," from such a policy to Harlan was clear. And, such a badge of slavery, of inequality, unconstitutionally treated a certain class of citizens who under true guarantee of republican government (Article IV) are equal.
The white race deems itself to be the dominant race
in this country. And so it is in prestige, in achievements, in
education, in wealth and in power. So, I doubt not, it will continue to
be for all time if it remains true to its great heritage and holds fast
to the principles of constitutional liberty. But in view of the
Constitution, in the eye of the law, there is in this country no
superior, dominant, ruling class of citizens. There is no caste here.
Our Constitution is color-blind, and neither knows nor tolerates classes
among citizens. In respect of civil rights, all citizens are equal
before the law. The humblest is the peer of the most powerful. The law
regards man as man, and takes no account of his surroundings or of his
color when his civil rights as guaranteed by the supreme law of the land
are involved. It is therefore to be regretted that this high tribunal,
the final expositor of the fundamental law of the land, has reached the
conclusion that it is competent for a State to regulate the enjoyment
by citizens of their civil rights solely upon the basis of race.
Both opinions here have interesting assumptions and reasoning that provides insights into the times and thought processors of the era. The words here of a border state former slave owner in the 1890s regarding the white race is far from surprising. More so that he was able to look past it to support legal equality ... up to a point. And, the rhetoric here is nice, but Harlan did accept color distinctions. Note the proviso regarding "civil rights," but in time, e.g., marriage was such a right in this context. The "no account of his surroundings" language probably does not hold up to extreme scrutiny either. OTOH, it is best to read these things as a whole though it remains on some level a thing to quote maxims.
Justice Harlan, as he did in other cases, spoke of the need for judicial restraint when "reasonable" regulations were involved. But, he argued that this one was not constitutionally so. The majority, however, was not putting forth a novel argument going the other way -- by the 1890s, segregation and other race-based policies were readily seen as acceptable. This puts this opinion in better stead than Dred Scott v. Sandford, which struck down a major piece of congressional legislation using a strong form of pro-slavery constitutionalism. A narrow loss might be seen as unjust, but the case is a leader in the "anti-canon" because of its unnecessary breadth. This one is because the law moved based the limited, not holding up to long term scrutiny, view of equality of the day. The challenge showing some knew that at the time.
The opinion was in this respect a final peg of sorts in the acceptance of segregation, which was by then well established. It can be seen as a window of the times. The slow fight to true equality was yet to come and continues to this day. The lessons of both opinions can help us there.
* And, even Harlan agreed to some degree. The majority argued:
The object of the amendment was undoubtedly to enforce the absolute
equality of the two races before the law, but, in the nature of things,
it could not have been intended to abolish distinctions based upon
color, or to enforce social, as distinguished from political, equality,
or a commingling of the two races upon terms unsatisfactory to either.
The reader today might be confused -- "absolute equality" would seem to "abolish distinctions based upon color." If you want to say that the text is not to be interpreted absolutely, fine, that's standard stuff. But, this seems a bit like doublespeak. And, blacks probably said: "unsatisfactory" to whom?
** Harlan notes that the law only applies to whites and blacks, so ironically a race "so different from our own" -- the Chinese -- could intermingle with whites without risk of arrest.
Harlan's prejudice is noted here, but he is also responding to then current policy. And, one can refute him here by saying there simply weren't enough Chinese in Louisiana for it to be deemed problematic. That only takes us so far though and the net result in practice is fairly arbitrary behavior such as line drawing where someone 1/8 black could be banned, depending on the choices of train conductors.