RACISM IN THE COURT

 

In 1857 the Supreme Court handed down the Dred Scott opinion, an opinion that perverted, as Abe Lincoln said, the Constitution.  The most interesting statement in the Dred Scott opinion is quoted below:

They (African Americans) had for more than a century before (the birth of the Constitution) been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.
The justices pretended to believe that this one-sided view of history had been written into the Constitution.  A few years later their perverse action led to the Civil War [1].

After the war ended, our forefathers amended the Constitution to repudiate the Dred Scott decision and guarantee various rights to the African-American former slaves.  Since the Supreme Court had proved itself untrustworthy, the framers of the 14th Amendment wrote it to retain enforcement power for Congress, rather than the courts.  Section 5 of the Amendment says, "Congress shall have power to enforce, by appropriate legislation, the provisions of this article."  Such language was never used in constitutional amendments prior to the Dred Scott decision.  In accordance with this language, Congress passed four Acts to describe in detail and create enforcement machinery for the rights that it intended the Amendment to guarantee [2].

For a while, the Supreme Court laid low.  Our judicial employees knew that "We the People" had come dangerously close to taking serious punitive action against them.  However, before long they felt it safe to resume their mischief.  In a long series of new perversions, the Court thought up scams to nullify most of the enforcement legislation Congress had passed exactly as the 14th Amendment implicitely promised and explicitely authorized.  The Court said that the Amendment didn't provide for the sort of enforcement legislation that more or less the same congressmen that framed, adopted, and ratified it voted to enact just a few years later [3].
 

FULL AND EQUAL ENJOYMENT

The 14th Amendment said [4];

Section 1.   All persons born or naturalized in the United States and subject to the jurisdiction therof, are citizens of the United States, and of the State wherin they reside.  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 withion its jurisdiction the equal protection of the law.
and
Section 5.  The Congress shall have power to enforce, by appropriate legislation, the provisions of this Article.

In 1875, Congress undertook to enforce, by appropriate legislation, the provisions of this Article.  It passed an enforcement Act containing the following language:

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

Section 2 described penalties for those who violated Section 1.

You will probably be amazed to learn that the Supreme Court declared this enforcement Act unconstitutional.  In 1883 (The Civil Rights Cases) the Court majority (eight out of nine) said the 14th Amendment did not empower Congress to pass laws affecting "inns, public conveyences on land and water, theaters, and other places of public amusement."  The Amendment only restricted the actions of "States," not inns, theaters, railroads, and so forth.

A one justice minority (John Marshall Harlan) accused his colleagues of playing word games to avoid what all understood to be the intent of the 14th Amendment.

The substance and spirit of the recent amendments of the constitution have been sacrificed by a subtle and ingenious verbal criticism.  'It is not the words of the law but the internal sense of it that makes the law.  The letter of the law is the body; the sense and reason of the law is the soul.'  Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law . . . . the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted.

Harlan pointed out that inns, railroads, and other public accommodations operate under the umbrella of state law.  And he identified several earlier cases in which the Supreme Court had acknowledged that fact and ruled that they were therefore agents of the state.  That the majority chose to ignore those precedents as well as the obvious intent of the framers, seems to remove any doubt that the opinion flowed out of their own agenda, not the Constitution.  So what was the nature of that agenda? [5]

The answer requires an insight into what motivates a justice of the Supreme Court who has an opportunity to vote on a "constitutional" question.  He has little to fear in the way of consequences for a fraudulent opinion; a justice has never been impeached and removed for trashing the Constitution.  So when voting on questions concerning which he has a strong political, religious, or economic bias, he usually votes according to that bias.  His second priority is to defend and enhance the status and power of our judicial branch of government.  Honoring his oath to uphold the Constitution comes in a distant third [6].

Since they had all been appointed by Republican presidents, it's unlikely that the eight justices who voted to sacrifice the "substance and spirit" of the 14th Amendment were motivated by the poisonous anti-Negro bias common among Southern Democrats at the time.  It seems much more likely that they acted on their second priority concern.  Congress had passed a law that would require the federal courts to spend much of their time and energy on what the justices viewed as a lot of petty squabbles concerning the rights of former slaves to attend the opera and ride first class on trains and river boats.  They didn't want their exclusive club buried up to its neck in this kind of jurisprudence [7].

Incidently, long after the millions of people damaged by the Civil Rights Cases were dead, our judical employees decided to get a new act.  They blessed the Civil Rights Act of 1964, which affected "inns, public conveyences on land and water, theaters, and other places of public amusement" pretty much the same way the Acts they had earlier declared unconstitutional did.  The 14th Amendment hadn't changed in the interim; but the politics had.  And Congress took pains to save our judicial employees from having to revisit the fraud they perpetrated in the Civil Right Cases.  Congress wrote the Civil Rights Act to ban discrimination by inns, public accommodations, etc. under its power to regulate interstate commerce rather than its power to enforce the 14th Amendment [8].
 

PROTECTING THE SOUTHERN PACIFIC RAILROAD COMPANY

Three years after deciding the Civil rights Cases the same gang of renegade justices explained to Congress what it had intended the 14th Amendment to accomplish.  In 1886 they handed down a ruling in the case of Santa Clara County v. The Southern Pacific Railroad Company.  The railroad didn't like the way the County computed its property taxes on some fences along the roadway.  So its lawyers took the argument to their friends on the Supreme Court.

The Court said the taxes were computed by a method that was "too vague and indefinite to serve as a basis for estimating the aggregate valuation of the fences included in the assessment . . ."  Fair enough; but what made this a U. S. Constitutional issue?

The answer is hilarious.  The Court said that this sort of thing was exactly what the framers of the 14th Amendment wrote it to forbid.  Before the Court even listened to arguments Chief Justice Waite announced,

"The court does not wish to hear argument on the question whether the provision in the 14th Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

Don't take my word for it, look it up [9].
 

SEPARATE BUT EQUAL

A decade after that, the Supreme Court turned its attention to Plessy v. Ferguson (1896).  This time a state had passed and enforced a law which clearly violated the 14th Amendment.  A fellow named Homer Plessy, who had one-eighth Negro blood, got himself ejected from the train and tossed in jail for defying a Louisiana law that mandated racial segregation on railroad cars.  The Supreme Court had already declared the 1975 Civil Rights law unconstitutional because it prohibited racial discrimination by "private" businesses as well as states.  So nobody dared bring it up.  Instead Homer's lawyer claimed that Louisiana's outrageous treatment of his client was directly forbidden by the 14th Amendment itself.

The 1896 Court said that Mr. Plessey had been offered railroad accommodations that were "separate, but equal."  Since the "equal protection" clause of the 14th Amendment only demanded "equal" protection, Homer should have no complaint; and that was the end of the matter.  Justice Harlan, one of two holdovers from the 1883 Waite Court, again wrote a lonely dissent stating the obvious; his "brethren" were playing word games to obstruct the clearly expressed will of "We the People" when we ratified the 14th Amendment.

There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature.  Our institutions have the distinguishing characteristic that the three departments of government are co-ordinate and separate.  Each much keep within the limits defined by the constitution.  And the 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.

Unfortunately, Harlan had only one vote [10].

In 1865 the United States survived a civil war.  About half-a-million people died in that war which also ended slavery in America.  In 1868, we ratified the 14th Amendment to nullify the fraudulent Supreme Court ruling that caused the war and to guarantee equal rights to the African Americans we paid such a high price to free.  In 1883, and again in 1896, fraudulent actions by the Supreme Court put our 14th Amendment on ice.  It took three-quarters of a century before the Court quit blocking it.  For that entire period, African Americans suffered forced racial discrimination in much of America.  The U. S. Supreme Court deserves a major share of blame for that; don't let anybody convince you otherwise.
 

FREEDOM OF CHOICE IS UNCONSTITUTIONAL TOO

By 1954, our judicial branch of government had spread its protective black robes over racism for more than seventy years.  Then the justices decided it was time to get a new act.  Public opinion in America was turning strongly against racism, and the Court wanted to get on the right side of public opinion.  In 1954 it handed down Brown v. Topeka Board of Education, thereby erasing America's collective memory of its seven decade crime wave.  However, outside of gaining favorable public relations for the Court, Brown v. Topeka had no effect.  A decade later, only 1.2 percent of Southern Black children went to integrated schools [11].

Then Congress passed the Civil Rights Act of 1964.  This law included a public accommodations section (Title II) a lot tougher than the one the Court had killed off in 1883.  But the justices had no interest in blocking this one, so the lower courts cheerfully enforced it.

The 1964 law also included Title IV: Desegregation of Public Education.  This law had immediate and powerful effects on public school segregation: by 1968, 32 percent of southern Black children were attending integrated schools and by 1972, 90 percent were doing so.

The 1964 Civil Rights law defined desegregation as follows:

"Desegregation" means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but "desegregation" shall not mean the assignment of students to public schools in order to overcome racial imbalance.
It also contained the following language:
. . . nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards.
Congress realized the obvious; "equal protection" did not mean equal coercion.  The 14th Amendment did not mandate, or even allow, social engineering to make the desegregation numbers look good.  However, Congress wanted to wash its hands of responsibility for any perversions (to paraphrase Abe Lincoln) the Supreme court might perpetrate in this regard.  Congress, it turned out, had impressive foresight [12].

The Supreme Court was still a racist institution.  In 1968 it asserted that equal coercion was exactly what the Constitution required.  That year, in Green v. County School Board of New Kent County, (1968). it ordered the lower federal courts "to assess the effectiveness of (desegregation plans) in light of the facts at hand and any alternatives which may be feasible and more promising, and to retain jurisdiction until it is clear that state-imposed segregation has been completely removed."  "Any alternatives" turned out to mean massive forced busing programs.  And the removal of "state-imposed segregation" turned out to mean forcing what Congress had called "racial balance," regardless of the causes of the imbalance.

In 1968 our judicial employees ordered "We the People" to undertake a two-decade experiment in equal coercion.  The "constitutional" basis of that experiment was at best speculative and at worst fraudulent.  The experiment resulted in millions of ruined educations, countless billions in wasted tax dollars, and the destruction of our urban public school systems; for that, you can and should blame the Supreme Court.

It's quite unlikely the experiment was an honest mistake.  The justices were probably serving their second priority agenda; advancing the power and status of the Supreme Court.  During those same years they ran their own institution like a plantation.  You can learn the whole disgraceful story in The Temple of Karnak, Chapters 15-19.  Or you can read an updated version on the Internet.

 

NOTES AND CITATIONS

1.  The Dred Scott opinion can be found on the Internet at http://www.tourolaw.edu/patch/Scott/.   In a speech at Cincinnati, Ohio , in September of 1859, Abe Lincoln suggested what he thought should be done about a renegade Supreme Court.  "The people of these United States are the rightful masters of both congresses and courts, not to overthrow the Constitution, but to overthrow the men who would pervert the Constitution."  Lincoln was quoted by Senator Jenner during the August 20, 1958 debates on the ill fated Jenner-Butler Bill.  See the 1958 Congressional Record, Senate, page 18645.

2.  The four enforcement laws can be found in Appendix 1 of Carr.  They can also be found on the Internet at http://ttokarnak.home.att.net/14AEActs.html.  It should probably be noted that none of the four Acts protected abortion, pornography, flag burning, gender equity, or gay rights.  And none mandated public school integration.

3.  The framers of the 14th Amendment had a great hostility toward the Supreme Court, blaming the Dred Scott opinion for causing the Civil War and the Court for several other usurpations.  See the online essay, Unnatural Selection.  The 39th Congress which framed the 14th Amendment had a lopsided Republican vs. Democrat majority; 42-10 in the Senate and 149-42 in the House (the Republicans called themselves "Unionists" during that session of Congress).  The 43rd Congress which passed the 1875 enforcement law still had a lopsided Republican majority; 194 to 92 in the House and 49 to 19 in the Senate.  The nation had Republican presidents both years.  See the web site, http://www.congressol.com/history.html.

For other examples of the Court's fraudulent treatment of Congress's 14th Amendment enforcement legislation, see the online essay, Congress Shall Not Have the Power.  See also Carr, pages pages 35 - 47 and Appendix 1, Lusky (1993), pages 112ff, and Lusky (1975) pages 184 - 210.

4.  Sections 2, 3, and 4 of the 14th Amendment have no relevance to the subject matter of this article.

5.  The Court's opinion (and Harlan's dissenting opinion) in The Civil Rights Cases can be found on the Internet at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=109&invol=3

6.  In 1804-05, Congress attempted, and failed, to impeach and remove a Supreme Court justice named Samuel Chase for trashing the Constitution.  Ever since, our judicial employees had little fear of being held accountable for that sort of crime.

7.  Two members of the 1883 court were appointed by Lincoln, two by Grant, two by Hayes, one by Garfield, and two by Arthur.

8.  See the language in Title II, Section 201 of The Civil rights Act of 1964.

9.  Santa Clara County v. The Southern Pacific Railroad can be found on the Internet at, http://www.tourolaw.edu/patch/Santa/.

10.  The Plessey opinion can be found at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=163&invol=537.

11. See Graglia, pp 67-75.  See also The Temple of Karnak, Chapter 15.

12. A transcript of the 1964 law can be found at http://usinfo.state.gov/usa/infousa/laws/majorlaw/civilr19.htm.

 

For publication data on works cited above, check the Bibliography.

 

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This essay extends ideas presented in The Temple of Karnak: How Rogue Judges Have Been Strangling Your Democracy..

 

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D. J. Connolly