Podcast: The 3WHH on Our (Non)-Colorblind Constitution

All it took was a NY Times op-ed article on the (misunderstood) legacy of Justice John Marshall Harlan’s famous dissent in the 1896 Plessy (“separate but equal”) case to set off a classic “Lucretia” rant in an email this week:

I find the NYT piece more damaging to the cause of equality before the law even than critical race theory.  I think [the author] perpetuates that subterfuge that makes it possible for milquetoast lefties to ignore the radicalism of the militant left. . .   In other words, Canellos pretending that any of the principled rationale from Harlan’s Plessy dissent actually found its way into the Brown decision—or subsequent civil rights cases—is positively ludicrous.  Brown, as well as most everything up to and including the modern DIE industry, is a complete embrace of Plessy’s central rationale—that the only important consideration is the stigma caused by separateness.

So naturally we decided to unpack the ambiguity (and that’s being charitable) of the Brown decision’s treatment of the 14th Amendment’s equal protection clause. Even though the Court decided correctly in striking down segregated schools, it did lasting damage to our jurisprudence with its obfuscation of the 14th Amendment.

For example, take in the fourth paragraph of Chief Justice Earl Warren’s opinion in Brown:

Reargument [of the case] 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. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

Translation: We have no idea what the equal protection clause should mean (though that didn’t stop the Court from deploying it recklessly in the 1960s when it suited them), so we’re going to make it up as we go along, and decide the Brown case on a different basis: modern psychology rather than fundamental law.

This was made explicit in two short subsequent passages in the opinion:

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. [Emphasis added.]

Why limit the reach of this opinion just to public education? The real reason is to keep open the possibility of using racial classifications in the law to enable redistribution schemes like racial reparations, etc.

Let’s recall, then Harlan’s clear language:

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.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case. . . . The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.

By contrast, the majority opinion in Plessy held:

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 point is: today’s race-conscious civil rights jurisprudence of the left is identical to Plessy‘s majority opinion that distinctions based upon color are permissible. Almost no one perceives this, and the left has an interest in concealing this.

Bonus: At the end, we talk a bit about the current fascination with UFOs, which make more sense than the legal reasoning of the Warren Court.

You know what to do now—listen here, or wander over to the Ricochet saloon.

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