Introduction
Malachi 4:6 “And he shall turn the heart of the fathers to the children, and the heart of the children to their fathers, lest I come and smite the earth with a curse.”
“Tell Omar you have to do it yourself, and unfortunately, he’s going to give you that same look… that arm-crossed sneer. The idea being, that because the cops don’t like black people, because of redlining, Jim Crow, and slavery… black responsibility is not a viable topic; it all has to come from the outside.” – John McWhorter.
The preceding quote was taken from a clip of the Glenn Loury show, which on occasion I frequent to hear the musings of two men whom I generally find agreement with, and whose ideas and conversations I find stimulating, amusing, and fascinating. The book-ends of the aforementioned quote were both the need to ensure that Omar, an abstract representation of the average Black man, takes responsibility for his circumstances, that he “pulls up his pants” and that maybe Omar needs governmental, policy help, in doing so; i.e., his “arm-crossed sneer” is rooted in the feeling that he’s fighting a Sisyphean battle; no matter what Omar does, he will not be able to push the boulder up the hill because of the iniquities of the past; thus, perhaps we shouldn’t treat Omar too harshly, we shouldn’t force him to take account of his circumstances and condition. Glenn, who is an eminently intelligent and wise man, took the position that, to improve Omar’s lot, Omar must take responsibility for his circumstances, regardless of past historical iniquities, but he can see how maybe a merciful hand could also play a role. John’s position was that, while there are definitely areas where Omar is capable of taking responsibility for his circumstances and condition, Omar must be helped; John prefers to focus on governmental policy capable of improving Omar’s lot, to right the inequities of the present.
I found this conversation serendipitous given the fact that my last blog post (Striegel, 2022 [2]) focused on the differences between Liberty and Equality, how the two were mutually exclusive goals, and how, at least, the best way to defeat the tyranny of the Syndicalist Prince and Anarchic Tyrant is to shine a light on the injustices they create. Proceeding from that paper, I would like to open a discussion on the history of inequality within this country or, at least, perceived inequality. To do so, I will begin by examining one of the most prolific cases in the history of the United States, Dred Scott v. John F.A. Sandford. Next, I will move to another controversial case, Plessy v. Ferguson. Lastly, I shall examine the case that overturned the principles established in Plessy v. Ferguson: Brown v. Board of Education. I will finish this blog post with some conclusions about the trajectory of the United States given the ruling and standards set by Brown v. BOE. I will try to do my best to offer a fair reading of the positions presented without bringing any of my biases to the cases.
Dred Scott, Plaintiff in Error v. John F.A. Sandford (1857)
“For me, Dred Scott is an example of what happens when the Judiciary exceeds its intended scope and uses the constitution to write new law.” – Justice Neil M. Gorsuch
For many, Dred Scott is a case that exemplifies the racist history of the United States. The very claim by Chief Justice Taney, who delivered the opinion of the court, “that [the Black man] had no rights which the white man was bound to respect” is regarded as a quintessential statement for America’s racist history. However, Taney’s position is also juxtaposed with qualifiers for Blacks such as “unfortunate. By this, we may infer some piteous sentiment presented by justice Taney, as if he looks upon the state of the Black man in America and also feels sad. They were, at that time, a conquered and enslaved people, living in a world alien to the one they’d been taken from. I would also find this condition piteous, unfortunate, and sad. It is obvious by such sentiments that, while it is possible Taney had his personal prejudices towards Blacks in the United States, he empathized with them. Yet the law, and the history of this nation, if it is to be studied as a piece of history, are not to be moralized; we are to ask why things were the way they were, not should they have been what they were; the law, if it is to be studied, should be considered according to its letter and the meaning given to those letters at the time of its writing, with respect to the principles of law, its purpose, established precedent, the history of its passing, and agency interpretation and practices if relevant (Eskridge, 2016; Scalia and Garner, 2012). First and foremost, at issue in the Dred Scott case was whether Black men were citizens of the United States.
It was the court's decision that Blacks were not citizens of the United States, and as such, the court did not have jurisdiction over the case; Scott’s demure to his lack of citizenship was abated. The grounds for this decision were not spurious and were logical, regardless of the sentiments any one of us, including myself, have about the opinion.
Taney opens the heart of the matter by saying this:
“Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the Citizen?
The ultimate question being asked in this case is whether it was possible, according to precedent and the law as it was written, to consider Blacks citizens of the United States. This problem rests on precedent but also on the construction of the term State and Citizen. I shall refer to Justice Daniel to answer this question for us and then return to Taney’s statements.
Justice Daniel stated:
“Upon a principle of etymology alone, the term citizen, as derived from civitas, conveys the ideas of connection or identification with the State or Government, and a participation of its functions. But beyond this, there is not, it is believed, to be found, in the theories of writers on Government, or in any actual experiment heretofore tried, an exposition of the term citizen, which has not been understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and its enjoyment, of an entire equality of privileges, civil and political. [italics added]”
He follows with a reference to Vattel to define for us the term State, Nation, and Citizen:
“Vattel, in the preliminary chapter to his Treatis on the Law of Nations says this: “Nations or States are bodies politic; societies of men united together for the purpose of promoting their mutual safety and advantage, by the joint efforts of their mutual strength. Such a society has her affairs and her interests; she deliberates and takes resolutions in common; thus becoming a moral person, who possesses an understanding and a will peculiar to herself.” … “from the very design that induces a number of men to form a society, which as its common interests and which is to act in concert, it is necessary that there should be established a public authority, to order and direct what is to be done by each, in relation to the end of his association. This political authority is the sovereignty.” … By this same writer it is also said: “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority; they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.” Again: “I say, to be of this country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country.” (Vattel, Book 1, cap. 19, p. 101).
Again, nations are societies of men united together for the purpose of promoting their mutual safety and advantage, by the joint efforts of their mutual strength. Those men, once the society is established, are citizens of that sovereign state, and by citizen we mean they “are the members of the civil society; bound to this society by certain duties, and subject to its authority; they equally participate in its advantages.” They are also “those born in the country, of parents who are citizens.”
With our definitions out of the way, I believe it is worthwhile to proceed to one of the dissenting opinions on this matter before returning to Taney’s position. Justice Curtis, dissenting to the ruling of the court, wrote this about whether Blacks were citizens of the United States:
“To determine whether any free person, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such person were citizens of the States under the Confederation, at the time of the adoption of the Constitution… Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey and North Caroline, [five of the thirteen colonies] though descended from African slaves, were not only citizens of those states, but such of them as had the other necessary qualification qualifications possessed the franchise of electors, on equal terms with other citizens.”
Of the States who enfranchised free Black men, according to their sovereign will, were New Hampshire and Massachusetts at the time of the ruling. If Citizens of the United States, how could the right to vote be taken from them by a sovereign State? The answer rests in the flawed logic of Justice Curtis. Curtis makes an inference where there is none. He makes this argument: Some Black men have rights and some rights are afforded to Black men; if you’re a Citizen of the United States, you have rights. He makes the fallacious inference that, because some Blacks have rights, they are therefore Citizens of the United States. This simply does not follow logically. Anti-Semites make a very similar argument. They claim some Jews are in positions of power and some positions of power are controlled by Jews. Anyone who wants to control the world needs power; therefore, they claim, Jews (these are the ideas of an Anti-Semite and not my own) want to control the world. The structure of the argument is this: Some X are Y, some Y are X, and all Z are Y. The inferences made by the Anti-Semite and Justice Curtis are unreasonable.
Chief Justice Taney makes this point clear:
“[S]o far as mere rights of person are concerned, the provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State, as to voting or holding office, or in any other respect. For a citizen of one State has no right to participate in the government of another. But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the Constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the State. And if persons of the African race are citizens of a State, and of the United States, they would be entitled to all of these privileges and immunities in every State, and the State could not restrict them; for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the Constitution and laws of the State to the contrary notwithstanding. And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitution would be unmeaning, and could have no operation; and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him. This is evidently not the construction or meaning of the clause in question. It guaranties rights to the citizen, and the State cannot withhold them. And these rights are of a character and would lead to consequences which make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution when these privileges and immunities were provided for the protection of the citizen in other States.”
The passage of which this phrase is speaking is as follows:
“The third act to which we have alluded is even still more decisive; it was passed as late as 1813, (2 Stat., 809,) and it provides: "That from and after the termination of the war in which the United States are now engaged with Great Britain, it shall not be lawful to employ, on board of any public or private vessels of the United States, any person or persons except citizens of the United States, or persons of color, natives of the United States.”
Taney enumerates various laws of the States and the United States which clearly delineate Blacks from Whites, and which do not treat Blacks and Whites as equals. In other words, while it is perfectly true to claim some Blacks had rights in some States, and some States afforded rights to some Blacks, and if you are a citizen of the United States you have rights enumerated in the Constitution, it does not follow that Blacks were citizens of the United States, nor even that some Blacks were citizens of the United States. Thus, Dred Scott did not have standing. Therefore, when Justice Taney says “that [the Black man] had no rights which the white man was bound to respect,” he means that the White man, as the category of persons who united together for the purpose of promoting their mutual safety and advantage, by the joint efforts of their mutual strength, establishing the United States, they alone, as citizens, i.e., “members of the civil society […] bound to [said] society by certain duties, and subject to its authority... [who] equally participate in its advantages,” were to determine together whether Black men were to be considered Citizens of the United States.
But could congress pass a law granting citizenship to Blacks within the United States? Here too is another key issue, barring the Missouri Compromise of 1820 (which is not absolutely relevant to our discussion), brought forth through the Dred Scott case. To answer this question, I will first return to Justice Curtis for a time. Let us first begin with the clause from the Constitution that Curtis makes reference to:
"The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or any particular State."
Justice Curtis follows by saying this:
“I construe this clause… as if it had read, Congress shall have power to make all needful rules and regulations respecting those tracts of country, out of the limits of the several States, which the United States have acquired, or may hereafter acquire, by cessions, as well of the jurisdiction as of the soil, so far as the soil may be the property of the party making the cession, at the time of making it.”
In other words, Congress may write laws that define whether Blacks are seen as Citizens of the United States in territories of the United States. If upon becoming a State of the United States, that former territory may enshrine for Blacks, in their statutes, the rights and privileges of citizenship any White would have in the United States, they would be a citizen of that State and thus free. In so doing, as Illinois and Ohio did, they may also grant them liberty if they are to reside within that state. However, there is an often-overlooked paradox formed by the fact that, in essence, one State may deprive the Constitutionally protected rights of a citizen from another State if they are to sojourn or reside, at least, within said State, given the laws established by the State being sojourned or resided in violate said rights of the citizen from his previous State. Specifically, one State may violate the civil rights, i.e., property rights, of a citizen from another State. This creates a significant problem; one Justice Curtis only tacitly admits to:
“However fit such considerations are to control the action of Congress, and however reluctant a statesman may be to disturb what has been settled, every law made by Congress may be repealed, and, saving private rights, and public rights gained by States, its repeal is subject to the absolute will of the same power which enacted it. … If the Constitution prescribe one rule, and the law another and different rule, it is the duty of courts to declare that the Constitution, and not the law, governs the case before them for judgment. If the law include[s] no case save those for which the Constitution has furnished a different rule, or no case which the Legislature has the power to govern, then the law can have no operation. If it includes cases which the Legislature has power to govern, and concerning which the Constitution does not prescribe a different rule, the law governs those cases, though it may, in its terms, attempt to include others, on which it cannot operate.”
In other words, while Congress has the power to emancipate or free the slaves, they must remunerate the parties involved, as is their 5th amendment duty, “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The last clause may be construed in two ways: private property may not be taken for public use without just compensation or, more likely, private property may not be taken for public use and without just compensation. In other words, while Congress may be able to ameliorate the slaves or a State may create a law that grants freedom to a slave who resides or moves into their territory from a Slave State to a Free State, the State or Congress, whoever grants freedom to the slave, must justly compensate the slave owner for his loss of property; otherwise, the slave owner's rights would be violated. It should be clear to the keen reader how this would cause a significant legal, economic, logistical, and political quagmire. For example, if Congress did emancipate the slaves of the Slave States, i.e., they utterly outlawed slavery within the United States, yet they lacked the funds to remunerate the slave owners for the property they had taken from them, an economic burden so great may be placed on the Union as to cause its collapse. If Congress emancipated the slaves, yet had no intent to remunerate the slave owners, their property and civil rights would have been violated and their covenant with the Union nullified. If a State made freedom for slaves conditional upon their entry into their State, citizens who owned slaves could not bring them with them into the Free State, and thus their movements would be limited within the United States, effectively violating their civil rights. Again, a legal, economic, logistical, and political quagmire. Given the court’s role is to uphold the law to preserve Justice, and Justice is knowable by the stability and security, or tranquility or peace, it provides, by destabilizing or making the country less secure, it would be violating its duty to uphold Justice. This was not lost on the other Justices, especially on Justice Daniel.
Yet before we move to Justice Daniel, it must be remembered that the 10th amendment needed to be considered during the creation and application of the laws of Congress. Justice Campbell states:
“[T]he Federal Government may lawfully do whatever is not directly prohibited by the Constitution… [T]he final expression of the will of the people of the States, in the 10th amendment, is, that the powers of the Federal Government are limited to the grants of the Constitution.”
And
“Under the lead of Hancock and Samuel Adams, Patrick Henry and George Mason, they demanded an explicit declaration that no more power was to be exercised than they had delegated. And the ninth and tenth amendments to the Constitution were designed to include the reserved rights of the States, and the people, within all the sanctions of that instrument, and to bind the authorities, State and Federal, by the judicial oath it prescribes, to their recognition and observances… When the questions [about the Federal Governments’ authority over the newly acquired territory through the Louisiana Purchase], Jefferson… wrote: ‘I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies and delineates the operation permitted to the Federal Government, and gives the powers necessary to carry them into execution.’”
In other words, the 10th and 9th amendments protected the sovereignty and non-explicit rights of the States, and the Federal Government was limited in its power; it could not construe in the constitution a power not granted to it by the States: “I had rather ask an enlargement of power from the nation, where is found necessary, than to assume it by construction…” The only inference to make from this is that Jefferson, one of the Founding Fathers of this nation, a man who followed John Adams, a president who created a Constitutional Crisis by passing the Alien and Sedition Acts, regarded the powers of the Federal Government as contingent upon the will of the sovereign States. The States agreed to form a federation, the Union was not imposed on them; it is, or was, their will that preserves it, not the Union’s. By enforcing or violating the civil rights of the Slave States, their property rights, which were ensured by the 9th and 10th amendments, and without fairly remunerating the slave owners for their emancipated property, the 5th amendment, the Slave States would have a case to make that the Federal Government was abusing its powers, and thus any sovereign State, if it so chose, could declare their agreement with the Federal Government nullified; i.e., the Federal Government was, according to the Slave States, acting tyrannically. And, it may be construed, by preventing factiousness, by violating their rights and property without compensation, the Liberty of Americans was being threatened, and thus the tranquility, stability or security, were threatened. This is not lost on Justice Daniel:
“Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d, after collating the opinions of Grotius, Heineccius, Vattel, and Rutherford, enunciates the following positions as sanctioned by these and other learned publicists, viz: that "nations are equal in respect to each other, and entitled to claim equal consideration for their rights, whatever may be their relative dimensions or strength, or however greatly they may differ in government, religion, or manners. This perfect equality and entire independence of all distinct States is a fundamental principle of public law. It is a necessary consequence of this equality, that each nation had a right to govern itself as it may think proper, and no one nation is entitled to dictate a form of government or religion, or a course of internal policy, to another." This writer gives some instances of the violation of this great national immunity, and amongst them the constant interference by the ancient Romans, under the pretext of settling disputes between their neighbors, but with the real purpose of reducing those neighbors to bondage; the interference of Russia, Prussia, and Austria, for the dismemberment of Poland; the more recent invasion of Naples by Austria in 1821, and of Spain by the French Government in 1823, under the excuse of suppressing a dangerous spirit of internal revolution and reform.”
He then states:
“Sovereignty, independence, and a perfect right of self-government, can signify nothing less than a superiority to and an exemption from all claims by any extraneous power, however expressly they may be asserted, and render all attempts to enforce such claims merely attempts at usurpation. Again, could such claims from extraneous sources be regarded as legitimate, the effort to resist or evade them, by protest or denial, would be as irregular and unmeaning as it would be futile. It could in no wise affect the question of superior right. For the position here combatted, no respectable authority has been, and none it is thought can be adduced. It is certainly irreconcilable with the doctrines already cited from the writers upon public law.”
If Congress were to emancipate the slaves, and if it did not remunerate the slave owners, if it lacked the financial power to do so, it would have violated the 5th, 9th, and 10th amendment rights afforded to the Citizens of the United States and the sovereign States. The States had the authority to govern themselves; by violating their rights, the Federal Government would have been usurping this power, which would have threatened their Liberty, stability or security, and thus would be an injustice; chaos would surely follow, and it did. Judges had the power of both loose and strict construction; their end, the goal of all the branches of government, was Justice; the preservation of stability, security, and peace in the nation. The Missouri Compromise and the inferences that followed from it, the SCOTUS logically recognized, would violate some of the rights of the other sovereign States, violating the constitution, making the Missouri Compromise and the laws that followed from it Unconstitutional. A violation of the Constitution would violate or threaten either the stability or security of the Nation, threatening Justice, the stated goal of the U.S. government. Ergo, the Missouri Compromise could not stand. By giving power back to the States, Chief Justice Taney’s SCOTUS decision was intended to quell the problems between the Slave and Free States; in the words of Thomas Jefferson, they had to “agree” that Blacks could be citizens; it could not be inferred and forced upon them. Obviously, this did not happen, it was forced upon them by Abraham Lincoln, and it sparked a Civil War, killing hundreds of thousands.
Justice Curtis, who most championed the position taken up by Abraham Lincoln in my opinion, wanted equality. He used the Declaration of Independence as the document defining the telos of who should or shouldn’t have rights within the United States. If the Declaration of Independence, drafted by Thomas Jefferson, said that “all men were created equal,” it meant that “all men were created equal.” To the claims that our Founders meant that, literally, “all men” were created equal, Taney responds:
“The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.
Yet the men who framed this declaration were great men — high in literary acquirements — high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.”
In all sincerity, though I have sought to refrain from biased commentary on these matters, I cannot, for the time being, keep from doing so. The appeals made by Curtis to the equality of all men are ideological in nature. I do not hold to them, nor do I think by today’s standards they are scientifically accurate (Striegel, 2022 [1]). Curtis’s ideological precepts even contradict themselves. In making the appeal that the decision made by the majority of the court was of a political rather than judicial nature (which I feel I have shown was not actually the case – the decision clearly had judicial merits), very closely after he makes the appeal to the equality between all men, claims:
“Political reasons have not the requisite certainty to afford rules of judicial interpretation. They are different in different men. They are different in the same men at different times.”
When Curtis appeals to the phrase “all men are created equal,” he is appealing to an initial condition or set of circumstances that are simply not true. The political reasoning of men is contingent upon their desires and circumstances. If the desires or circumstances of various men differ, so too will their reasoning. If the circumstances or desires of a man change from one moment to the next capriciously, the political reasoning of that man may change. It is impossible to ever show men are equal, from birth to gestation, consummation, to the consummatory materials of a man, and the members who provided those consummatory materials to produce that man, he never has nor will he be equal; all are subject to various conditions and circumstances that generate inequality and variation; which, far from being something that should be derided or seen as ugly, should be seen as a thing of beauty; there genuinely is something to be celebrated about diversity; specifically, the diversity of Life. To yearn for equality is to desire that the circumstances and conditions that generate inequality be annihilated or obliterated; this is a value claim, an ideological claim, one that I will absolutely not assent to because it requires a kind of conformity that necessitates and produces tyranny and instability; how are you to level the world so that all differences be made null without destroying the world itself? The desire for equality is a kind of hatred for Creation itself. Yet, in the name of equality, in the name of conformity, with the seemingly beneficent desire to bring dissenting parties in line and to emancipate slaves (which I am sincerely happy has occurred, though not by these means whatsoever), Abraham Lincoln thrust our nation into a war, killing hundreds of thousands.
Plessy v. Ferguson (1896)
Plessy v. Ferguson is clearly another defining case in the history of the United States. In question was a law passed in the State of Louisiana, passed in 1890, that “provide[ed] for separate railway carriages for the white and colored races.” The first section of the statute reads, “all railway companies carrying passengers in their coaches in this State, shall provide equal but separate accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: provided, that this section shall not be construed to apply to street railroads. No person or persons, shall be admitted to occupy seats in coaches, other than, the ones, assigned, to them on account of the race they belong to.”
The second section reads: “the officers of such passenger trains shall have power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which the passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this state.”
Lastly, “nothing in this act shall be construed as applying to nurses attending children of the other race.” According to the ruling, the fourth section of this statute is immaterial.
The plaintiff argued that the statute violated the 13th and 14th amendments of the Constitution. Mr. Justice Brown makes clear the statute very clearly does not violate the 13th amendment. I concur with this opinion. It genuinely does not make sense how this statute violates the 13th amendment. Justice Brown argues “That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as punishment for crime, is too clear for argument. Slavery implies involuntary servitude – a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of legal right to the disposal of his own person, property and services.” He then goes on to say that” it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicate but only as involving an ordinary civil injury, properly cognizable, by the laws of the State, and presumably subject to redress by those laws until the contrary appears.” In other words, the plaintiff was arguing that twenty-five dollars or twenty days in the parish prison were a form of slavery. Justice Brown continues: “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 establish a state of involuntary servitude… [W]e do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.” In other words, Justice Brown, and I, thinks it would be stretching the construction of the 13th amendment; he shows that the Unconstitutionality of the Louisianan statute did not rest on whether it violated the 13th amendment.
Justice Brown Continues:
“By the Fourteenth Amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the State wherein they reside; and the States are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.”
The claim of whether the 14th amendment is violated by the Louisianan statute is much more complicated than that presented by the 13th amendment. Justice Brown makes the claim that “[t]he proper construction of this amendment was first called to the attention of this court in the Slaughter-house cases, 16 Wall. 36, which involved, however, not a question of race, but one of the exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said to generally that its main purpose was to establish the citizenship of the negro; to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of the states.” Justice Brown claims, “the object of the amendment was… to enforce absolute equality of the two races… 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. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. [italics added]”
All of this is established upon the principle afforded to Justice Brown through Chief Justice Shaw, known as the Shaw Principle. On this principle, Justice Brown writes:
“’The great principle,’ said Chief Justice Shaw, p 206, ‘advanced by the learned and eloquent advocate for the plaintiff,’ (Mr. Charles Sumner,) ‘is, that by the Constitution and laws of Massachusetts, all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law… But, when this great principle comes to be applied to the actual and various conditions of a person in society, it will not warrant the assertion, that men and women are legally clothed with same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment, but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.’ (italics added)”
In other words, while all persons may be equal before the law, the law or policy cannot change the conditions of a person. As the rights are established by the law, those must be applied equally to each group. Again, the law cannot make equal that which is inherently unequal due to the conditional nature of its or their origin or circumstances. Only in their rights and legal duties may they be equalized. The greatest critique of this principle I can see is the appeal to the paternalism of the considerations made about whether the law is providing for Men’s, Women’s, children’s, Black’s, White’s, a group’s, as long as they are citizens of the United States, maintenance and security. This term denotes that the decision is to be made by a fatherly or masculine figure. While this may be construed to limit this power to men, the quality need not only apply to men. There’s no reason to believe a woman may not have the paternal quality necessary to provide for a group’s maintenance and security.
Importantly, Justice Brown notes the limitations of the 14th amendment:
“It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide for modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment, but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws, or state proceedings, and be directed to the operation of their effect.”
In other words, the rights established by the laws of a State must apply equally to any group within the state, as established in a State’s laws. When they do not, the plaintiff may justly claim his 14th amendment rights have been violated. Congress does not have any power, according to this construction of the 14th amendment, to create municipal laws or codes that regulate the private rights of a State’s citizens. The plaintiff then makes the claim that the Louisianan statute in question has violated his property rights, specifically “in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property, in the same sense that a right of action, or of inheritance, is property.” However, Justice Brown is unclear on how the statute in question has violated this property right while averring to the fact that the reputation belonging to the dominant race may be seen as property. He says, “we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so called property… [I]f he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.”
Justice Brown then proceeds to consider whether “separate but equal” creates the potential for laws to be applied arbitrarily and thus unjustly.
“It is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class.”
The argument presented by Justice Brown hinges on whether the law is reasonable. But what does he mean by reasonable? With respect to whether a law creating conditions that fall under the Shaw Principle and create “separate but equal” conditions is reasonable, Justice Brown states: “In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.” I think it makes the most sense to construe this standard as a syndeton. The contrapositive of this whole standard cannot be construed to suggest that any single violation of the stipulated conditions of the standard must mean that the law is unjust, but rather a majority. I.e., if the law doesn’t act with reference to the established usages, customs or traditions of the people, or with a view to the promotion of their comfort, or the preservation of the public peace or good order, then it is unreasonable, yet the law is reasonable if it acts with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Some of these even may be broken apart. For example, if the law doesn’t act with reference to the established usages, customs, or traditions of the people, it is partly unreasonable. However, given this construction, I think it makes the most sense to construe this standard as a syndeton and thus a majority of its qualities must be violated for the law to be considered unreasonable; any single violation doesn’t seem sufficient; we should not obstruct the document’s purpose, but seek to carry it to effect (Scalia and Garner, 2012).
Importantly, the plaintiff argues the law makes him feel as if he’s inferior. Justice Brown responds:
“If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. … 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.”
This may be the argument most open to critique. He roughly says what I think is quite reasonable. He states that if a group feels a law implies they’re inferior, that is because they have construed that into the law, or projected it into the law. If they had not construed that into the law, or did not project it into the law, they would not feel as if the law implies the group is inferior. Jeffery Kaplan creates another argument from this section in a video he presents on this case, but I do not think his argument is as qualitatively sound as he makes it; i.e., I do not think it follows from this section of the case by Justice Brown. For example, Men and Women have separate bathrooms. By creating a law or statute that provides for separate but equal facilities for Men and Women, is the law implying or explicitly saying one group is inferior to the other? There is a history of treating Women as the “fairer sex” and Men are often, and justly so, considered more violent than Women; but does the law imply one sex, i.e., gender, is inferior to the other? I simply do not see it. It is a perception, which cannot be falsified, projected into the law or statute. We also see hints of the spirit that is penetrating all the cases we will be reviewing: inequality may be resolved through policy; law may resolve that which nature, circumstance, or essential conditions have produced; the police power of the state may correct, through enforcing conformity, the inequalities of the present. This, as I have written about previously, will lead to tyranny and the instability or insecurity of the State or Nation that tries to impose it upon its populace. This does not mean equality between the races is impossible, but they must achieve such equality on their own. Justice Brown does not seem unaware of this, he also does not think it impossible for equality to exist between the races in the future:
“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 individuals. As was said by the Court of Appeals of New York in People v. Gallagher, 93 N.Y. 438, 448, "this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized and performed all of the functions respecting social advantages with which it is endowed." Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.”
In other words, he thinks that if there is to be equality between the races, it will be the result of their natural affinities, or what they essentially or inherently agree upon, a mutual appreciation for each other’s merits and a voluntary consent of individuals. The contrapositive of this statement reads as: if there are no natural affinities between the races, a mutual appreciation for each other’s merits, or voluntary consent of individuals, then there will not be equality between the races. I do not think he thought, nor do I think, this kind of equality is impossible to achieve, yet I am in certain agreement with him when he and I state that this kind of equality will not be achieved through policy. People must ultimately reach this position on their own. To force the matter by making the populace conform will be an injustice that causes instability or insecurity in the Nation, i.e., it will threaten the tranquility or peace of the nation, and thus will be antithetical to the goal of the United States, which is to ensure Justice.
I will state that, by contemporary standards, the States’ appeals to the admixture of Black and White blood seems highly unreliable and unscientific. Though it is clearly the case that there are qualitative and quantifiable differences between the races, and I am very confident in saying that race is a genuine scientific category, I do not think the States’ standards listed in the ruling can be considered just. By contemporary standards, their measures seem absurd and arbitrary, but they were established by the States at that time and they were observing a legitimate and tangible phenomenon. Anyone who says race is not a legitimate scientific category simply does not understand Darwinian or Evolutionary Biology, Environmental and Sexual Selection, Group Selection, or Cultural Evolution, at least. Race is real (Dutton, 2020); it is an inalienable part of a person, their property, and it is to be respected.
The judgment on appeal was ultimately affirmed.
Justice Harlan dissented to the court’s opinion on the matter. He begins by making some, quite honestly, just and constructive critiques of the Louisianan statute. For example, he says, “No exception is made of colored attendants traveling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant, personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while travelling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.” Ultimately though, there is only the need to assess whether the law violates the constitution.
Harlan begins his attack by trying to force the law to apply to railroads through the commerce clause. In other words, he wants Congress to regulate the coaches through the commerce clause by claiming the coaches the law applies to count as a train. However, the law explicitly states the coaches are not to be construed as being a part of street railroads. I know this may seem like a pedantic technicality, but I think it may apply to the statute the State of Louisiana passed. If I am wrong, I would appreciate being shown why. Regardless, he proceeds:
“[T]he Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,’ and that ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’ … Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the Fifteenth Amendment that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.’”
I am not sure how that last clause applies to the case at hand. However, he continues, “[The 13th and 14th amendments] removed the race line from our governmental systems.” Given what he says in the next several lines, I do not see how this is coherent. He goes on to say, “They declared, in legal effect, this court has further said, ‘that the law in the States shall be the same for the blacks as for the white; that all persons whether colored or white, shall stand equal before the laws of the States, and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.” “Separate but equal laws”, do not necessarily violate this standard: the law may be the same for Blacks as for Whites, the rights of Blacks and Whites must be upheld if they stand before the law, and the law shall not explicitly target people of color, i.e., it shall not be unreasonable; it must apply to Blacks and Whites equally. I do not see how “Separate but equal laws” cannot fit this standard.
More importantly though, he says:
“We also said: "The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race — the right to exemption from unfriendly legislation against them distinctively as colored — exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race."
This argument hinges on, as it does in Brown v. Board of Education, the implication of inferiority. But, as I have already stated, how would you show this unless it was explicitly the case? This seems to me to be the crux of the problem with Justice Harlon’s argument. He claims, the goal of the Louisianan statute was “under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches.” I genuinely have no idea how he can construe this from the law. He then states, “No one would be so wanting in candor as to assert the contrary.” As you can see, Justice Harlon’s argument is so strong that, if you disagree with him or do not see how the statute implies the inferiority of the Black race, you must not be truly honest. In other words, he’s attacking anyone who disagrees with him by calling them dishonest. It’s nothing more than ad hominem. He then goes on to say, “The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens. ‘Personal Liberty,’ it has been said, ‘consists of the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.’” He makes the claim that if a White and Black choose to occupy the same public conveyance… “it is their right to do so… and no government… can prevent it without infringing the personal liberty of each.” What he forgets to add is the last clause: “unless by due course of law.”
To put it simply, as a citizen of a sovereign State or Nation, you are subject to the laws of that sovereign State or Nation (we do live in a society!). While Justice is the aim of the government in question here, and Justice is ensured by Liberty, it is the Liberty and thus the factiousness of the people, and thus different groups of people, not individuals, of a sovereign Nation who establish the law of said Nation. If that liberty of the people has moved them to restrict some liberties to ensure others for the sake of the stability and security, or tranquility or peace of that people, and thus are moving towards the end goal of Justice, by seeking peace, stability and security, how has that sovereign Nation erred in preserving liberties? Telling someone they may not bring a vehicle into a park is not a violation of one’s liberties; it is simply the law (Eskridge, 2016). I genuinely find Justice Harlon’s argument to be incoherent, and I do not appreciate being told I am dishonest if I have genuine questions about how he’s concluded that the law is implying the inferiority of the Black race. I genuinely do not see how that’s the case or how that can be construed through the law. In other words, it’s very challenging to construe Justice Harlon’s claims to mean anything other than, ‘you will not let me do what I want, therefore you are violating my liberties.’ This is neither reasonable nor in line with how the Founding Fathers, men who probably read the King James Bible, understood and construed the concept of Liberty. “Do what thou will” is not what Liberty means, yet that, seems to me, is what Justice Harlon is implying it means.
Given what Justice Harlon is implying about the power of locomotion and Liberty, it is surprising what he says next:
“[T]he courts best discharge their duty by executing the will of the law-making power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes, liberally, in order to carry out the legislative will. But however construed, the intent of the legislature is to be respected, if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void, because unreasonable, are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent.”
Justice Harlon makes the claim that “the adjudged cases in which statutes have been held to be void, because unreasonable, are those in which the means employed by the legislature were not at all germane to the ends to which the legislature was competent.” He doesn’t make any reference to the cases that establish this precedent. Justice Brown establishes his standard for reasonability, and he references a case: Yick Wo v. Hopkins, 118 U.S. 356. Justice Harlon does this often through his attack on the Louisianan statute. He also says, “State enactments, regulating the enjoyment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretence of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned.” Again, he is simply stating this, he constantly psychologizes the laws passed by the States and their municipalities and projects the belief that the laws are intended to make Blacks feel inferior or effect inferiority in them, without demonstrating this.
Justice Harlon’s most effective argument rests on whether the “separate but equal” laws promote Liberty, which allows for Justice. This would require the people to freely associate with each other; this is something our governmental institutions should promote or ensure. However, he also relies on the commerce clause, which allows the government to regulate commerce between the states, or if it affects commerce between states. This opens significant jurisprudential questions: where do the government end and the private sector begin; where does the administrative state end and private sector begin; when are goods and services public and when are they private, and vice versa? When can the legal system force you to associate with others? Can the legal system force you to associate with someone you do not want to associate with if it is in the business of promoting the free association of peoples? Does this not abridge the liberties of the person who is being forced to associate with someone they do not want to? When is it appropriate for the Judiciary to construe that a private business has a duty to the public based on whether it is engaging in interstate commerce; how exactly is interstate commerce being construed, how loosely, how strictly; what is the extent of the government’s ability to regulate; what do they mean by regulate? This problem, as we can infer from Justice Brown’s decision, is best left to the municipalities of the States; they are at liberty to create laws that best meet the needs of the people, even if businesses, like the rail companies, feel they cause inefficiencies and generate unnecessary costs. What is to be inferred from Justice Harlon’s position is that the Federal Government has the right, not necessarily to ensure free association (which is to be lauded, but which is also best worked out within States by the citizens of those states – an argument we can infer from Justice Brown’s position). Otherwise, the Federal Government would have the power to force citizens of various states to conform by denying free association, which may be enshrined in the law in various forms, and instead require association. The usages, customs, and traditions of the people, their comfort, and the preservation of public peace and good order be damned! You must associate with each other or make no qualms about it. The liberty of the citizens of the States of the United States means they may make laws that conform to the rights every citizen of the United States has. I do not think Justice Harlon presented a sufficient argument demonstrating that the State of Louisiana violated the 14th amendment.
While I am in full agreement with Justice Harlon that freedom of association should be a goal the government helps to facilitate to ensure Justice and Peace, this liberty, or right, is also constrained by the law. Again, I am not to bring a vehicle into Layfette Park. What exactly is meant by vehicle is a separate question and requires a much lengthier answer than the question may suggest (Eskridge, 2016), yet regardless, my ability to move about as I so choose, and my ability to associate with whomever I wish, is limited by the due process of the law, though it must be applied equally. Because we do not live in a society of mere individuals, we are not free to “do what we will.”
Lastly, Justice Harlon’s argument sets the stage for some very poor logic, which shall be explored as I examine Brown v. Board of Education. Justice Harlon’s argument rests upon whether Plessy perceives the law to mean he’s inferior. Justice Brown recognizes this, as well. But the root of the issue is not whether the "separate but equal" laws explicitly state the Black race’s inferiority (the one in question doesn’t; if they did, they'd be found Unconstitutional), or is even carried out to effect inferiority in the Black race (we shall see that they do not), but rather that it is merely perceived as making some of them feel inferior. While this may make some members of the Black race feel uncomfortable or inferior, and this would affect whether, by Justice Brown’s standard, the law is reasonable, it does not mean the law is wholly unreasonable, for his standard is best construed as a syndeton. Again, we shall use our formalized logic: X<-S->Y<-Z; Some Blacks feel as if they are inferior because of “separate but equal” laws, some “separate but equal laws” make Blacks feel as if they are inferior, if the State legislature so chooses, they may pass “separate but equal laws”; therefore, the State chooses to make some Blacks feel as if they are inferior (?) – this is not a valid inference, in fact, there is no valid inference to be made by the kind of argument Justice Harlon is presenting, as shall be made clear through an examination of Brown v. Board of Education.
Brown v. Board of Education (1954)
Unlike Plessy v. Ferguson, and definitely unlike Dred Scott v. Sandford, Brown v. Board of Education, for all the influence it has, is an extremely short decision.
“[In cases from the States of Kansas, South Carolina, and Delaware], minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment.”
The contention was “that segregated public schools are not "equal" and cannot be made "equal," and that hence they are deprived of the equal protection of the laws”, according to the plaintiffs. At issue, as is clear to see, is the construction or interpretation of the word equal. Of great significance is the construction of the 14th amendment, as well. The court argued that “Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive.” They go on to state that, in regards to the construction of the 14th amendment, “What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.” In other words, the court was literally unable to form an interpretation of the 14th amendment. Then why have it?
As to the question of material equalization, the court was absolutely clear:
“In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other "tangible" factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases.”
In their footnotes they clarify just how tangibly equal the factors were, as well:
“In the Kansas case, the court below found substantial equality as to all such factors. 98 F. Supp. 797, 798. In the South Carolina case, the court below found that the defendants were proceeding "promptly and in good faith to comply with the court's decree." 103 F. Supp. 920, 921. In the Virginia case, the court below noted that the equalization program was already "afoot and progressing" (103 F. Supp. 337, 341); since then, we have been advised, in the Virginia Attorney General's brief on reargument, that the program has now been completed. In the Delaware case, the court below similarly noted that the state's equalization program was well under way. 91 A. 2d 137, 149.”
In other words, there were no tangible, measurable, or quantifiable differences between the facilities and if there were, those tangible differences were in the process of being corrected. For all intents and purposes, the facilities, by the early 1950s were materially equal.
Yet the court doesn’t think this is enough.
“In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on ‘those qualities which are incapable of objective measurement but which make for greatness in a law school.’”
The question at issue is what exactly do they mean by “qualities which are incapable of objective measurement but which make for greatness in a law school”? These qualities are not measurable, these qualities are not physical, these qualities are essentially subjective and, being subjective, they are arbitrary. The court, in this case, gave itself and congress an arbitrary power. If power is applied arbitrarily and without sound reason, it is unjust and tyrannical. The court continues:
“To separate [Blacks from Whites] of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
This “feeling of inferiority” is intangible; it is unfalsifiable; it is a matter of mere perception. The court concludes with at least this line: “We have now announced that such segregation is a denial of the equal protection of the laws.” This was the death knell of the “separate but equal” laws.
To briefly review the arguments of the case: They could not establish a meaning inherent to the 14th amendment. This case calls into question the constitutionality of the 14th amendment. How can a law stand if it is meaningless or no meaning can be found in it? Secondly, the court clearly states the schools are tangibly equal or in the process of becoming materially, i.e., tangibly, equal. However, they are separate schools. Separate schools are felt or sensed or perceived as being unequal, even though they are, for all intents and purposes, tangibly equal. Therefore, because they are felt or sensed or perceived as being unequal, they are unequal. Because the facilities are defined as unequal, the civil rights of the students were violated. The problem with this argument is that it is unfalsifiable and tautological. This case opened a Pandora’s box that deprived the nation of all objective thought and led to the cultural revolution and violence of the 1960s and 70s, a sign that an injustice had occurred.
Conclusions:
I began the paper with this quote:
“Tell Omar you have to do it yourself, and unfortunately, he’s going to give you that same look… that arm-crossed sneer. The idea being, that because the cops don’t like black people, because of redlining, Jim Crow, and slavery… black responsibility is not a viable topic; it all has to come from the outside.” – John McWhorter
The issue in question is whether Omar should take responsibility for himself or if the government should, once again, come to his aid. In the three cases reviewed, three values were established in the two dissenting opinions and the one unanimous opinion. The first two values were Equality and a kind of Liberty free from constraint. The last value presented was: regardless of whether it is objectively true or not, the perceptions of others are to be acquiesced to; if a person feels, perceives, or senses they are being treated as if they are inferior, they are, as a matter of fact, being treated as an inferior class; it is “good” to acquiesce or submit to the mere perceptions of others.
The first value, Equality, as I have previously written about, leads to a need to impose conformity. It is, as I wrote in my previous blog, the value of the Anarchic Tyrant and Syndicalist Prince; it is rebellion from creation itself; it emanates from the mind of one who says: “the Cosmos is not arrayed to my liking, thus I shall force it into a position more complementary to my desires.” The second value posited in Plessy v. Ferguson requires a notion of liberty that, though one may be free to hold it, is not consistent with how the Founding Fathers would have understood the term at the time the country was founded, or at least they would have been aware of the interpretation of the Liberty I’m referencing, which is Biblical in its nature. Liberty, without reason and self-constraint, is not Liberty. Liberty not tempered by reason and self-constraint produces a will that is enslaved to the passions, desires, and sins of Man; it is the enslavement of Man. This kind of Liberty would not have preserved the States nor Union; it would have led to an all-against-all scenario; it would have been anarchy; this is completely antithetical to the desires of the Founding Fathers. Lastly, the final value requires a denial of Reality itself. It forces Whites into the position that, merely because a minority perceives they are being treated unfairly by a White, the White must be treating them unfairly. The White’s defense against this claim? They have none, for he nor she can have one; the accusation, what he or she is being accused of, is unfalsifiable; they are simply to submit to the accusation.
If these are the values of the Civil War, the values that emerged from America’s resistance to the principles established by Plessy v. Ferguson, America can be seen as a kind of tyranny whose emphasis is on a form of Liberty that produces anarchy and which is swept up in a maelstrom of unfalsifiable accusations. America has murdered the truth, raised up unbridled anarchy and hedonism, and become a tyranny, all for Omar. By relying on government policy to resolve the conditions Omar continues to find himself in, America shall simply become more tyrannical, more conformist, more unjust, and thus the security and stability of the Nation will be further undermined if not outright obliterated. Responsibility is the solution. Omar needs to “pull up his pants.”
Bibliography
Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).
Dred Scott v. Sandford, 60 U.S. 393, 15 L. Ed. 691, 15 L. Ed. 2d 691 (1857).
Dutton, E., 2020. Making sense of race. Washington Summit Publishers.
Eskridge, W.N., 2016. Interpreting law: A primer on how to read statutes and the constitution. Foundation Press.
Farnsworth, 2009 (Farnsworth, W., 2008. The legal analyst: a toolkit for thinking about the law. University of Chicago Press.)
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