Desegregation vs. Integration

[cch5432]

It violated the 14th Amendment of the Constitution. This amendment came about in large part was to overturn the ruling in the Dred Scott case of circa 1857.

That is what I'm trying to illustrate- it did NOT violate the 14th amendment, and for three primary reasons:

 

1) (as noted earlier) If the creators of the 14th amendment were trying to desegregate, than why did Congress in 1874 (AFTER THE AMENDMENT) "enacted legislation which specifically provided for separation of the races in the schools of the District of Columbia." As noted by the Atlantic from above, "It is difficult to think that the Congressmen of that time proposed to require by constitutional amendment that the states do what Congress was unwilling to require of the District."

 

2) In fact, Supreme Court Justice Felix Frankfurter charged in law clerk to determine the intentions of the framers of the 14th Amendment, and he found, "It is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting." However, Justice Frankfurter merely took "impossible to conclude" as a reason for him to make his own choice of what they want.

 

3) As noted by Richard Kluger, “Could it be reasonably claimed that segregation had been outlawed by the Fourteenth when the yet more basic emblem of citizenship—the ballot—had been withheld from the Negro under that amendment?”

 

Putting all thoughts about the noble cause of desegregation aside, the fact of the matter is that the Supreme Court didn't make a legal decision, but a policy preference. The 14th Amendment's original intents were ignored by the SC. There should have been another Constitutional Amendment. I go to all these lengths to illustrate the mindset that SC operates at times, and it is dangerous for us to allow men who have been appointed for life to create laws for our country. Rather, we should rely on a primary value of republicanism, that elected officials make the laws.

[nWo]

You say the law should be on the books. That law was on the books from 1868 until the Brown v. Board of Education ruling. Read the amendment. To paraphrase it, no state shall make a law that infringes on the civil rights of any natural born or nationalized citizen. "Jim Crow" or seperate but equal denied blacks of this. To me that is why the Supreme Court ruled like it did. Albeit some almost 90 years later. So the Supreme Court didn't make any new law they struck down one that was unconstitutional. That is what they are supposed to do.

[cch5432]

You say the law should be on the books. That law was on the books from 1868 until the Brown v. Board of Education ruling. Read the amendment. To paraphrase it, no state shall make a law that infringes on the civil rights of any natural born or nationalized citizen. "Jim Crow" or seperate but equal denied blacks of this. To me that is why the Supreme Court ruled like it did. Albeit some almost 90 years later. So the Supreme Court didn't make any new law they struck down one that was unconstitutional. That is what they are supposed to do.

We'll just have to agree to disagree, I suppose. If the writers of the 14th Amendment, the 39th Congress, intended for it to end segregation, then I don't understand why that same Congress would segregate their own schools (in DC) AFTER passing the amendment.

[nWo]

We'll just have to agree to disagree, I suppose. If the writers of the 14th Amendment, the 39th Congress, intended for it to end segregation, then I don't understand why that same Congress would segregate their own schools (in DC) AFTER passing the amendment.

If you think in today's time I can see why you don't understand. Think of when this amendment was written. It was right after the Civil War. The times were very, very different.

[Bluegrasscard]

As we argue, keep in mind that I absolutely believe that "separate but equal" is bogus and absolutely should have been made illegal- just by the correct channels.

 

How was it unconstitutional?

 

 

Not being familiar with the actual legal arguements in the case I would say "seperate but equal" is definitely unconstitutional. "Seperate" would be definitely "different" and different treatment under the law is unconstitutional. And whether something is truely "equal" is likely an abitrary and capricious judgement. Typically things that are arbitrary and capricious are unconstitutional.

 

So both violate the key parts of constitutional laws or rulings.

 

As someone who went through Louisvilles forced bussing "experiment" I can say you could physically see the disparity in the inner-city schools and county schools.

[cch5432]

If you think in today's time I can see why you don't understand. Think of when this amendment was written. It was right after the Civil War. The times were very, very different.

True, but you are making it seem like the amendments' writers from the 1860's didn't want it to include segregation because it was a different time. If so, I agree with you- which is why there should have been a different amendment.

Not being familiar with the actual legal arguements in the case I would say "seperate but equal" is definitely unconstitutional. "Seperate" would be definitely "different" and different treatment under the law is unconstitutional. And whether something is truely "equal" is likely an abitrary and capricious judgement. Typically things that are arbitrary and capricious are unconstitutional.

 

So both violate the key parts of constitutional laws or rulings.

 

As someone who went through Louisvilles forced bussing "experiment" I can say you could physically see the disparity in the inner-city schools and county schools.

I think it goes against the spirit/mentality of the Constitution (and 14th Amendment) but it is not specifically addressed by any part of the Constitution, and it is clear from the 39th Congress's actions regarding segregation that the amendment was not meant to outlaw segregation.

[nWo]

True, but you are making it seem like the amendments' writers from the 1860's didn't want it to include segregation because it was a different time. If so, I agree with you- which is why there should have been a different amendment.

 

I think it goes against the spirit/mentality of the Constitution (and 14th Amendment) but it is not specifically addressed by any part of the Constitution, and it is clear from the 39th Congress's actions regarding segregation that the amendment was not meant to outlaw segregation.

Maybe we should do away with the Supreme Court. If we are not going to abide by their decisions why have it?

 

Is it the Civil Rights act of 1964 what you are looking for? That was the act that ended racial segregation.

Edited September 13, 2009 by nWo

[cch5432]

Maybe we should do away with the Supreme Court. If we are not going to abide by their decisions why have it?

 

Is it the Civil Rights act of 1964 what you are looking for? That was the act that ended racial segregation.

No, I'm just criticizing the Court's practice of making decisions based on policy preference rather than a legal/constitutionalist perspective.

 

As for the Civils Rights Act of 1964, I think that was the proper channel for segregation to send (although it came 10 years after the SC's decision to end segregation in Brown v BOE). And (on a different topic, the original one that I wanted to discuss) as noted in the first post, the SC overstepped the boundaries there as well.

[nWo]

No, I'm just criticizing the Court's practice of making decisions based on policy preference rather than a legal/constitutionalist perspective.

 

As for the Civils Rights Act of 1964, I think that was the proper channel for segregation to send (although it came 10 years after the SC's decision to end segregation in Brown v BOE). And (on a different topic, the original one that I wanted to discuss) as noted in the first post, the SC overstepped the boundaries there as well.

If the government had enforced the principles of the constitution that concerned civil rights as vehemently as they did when the constitution called for counting blacks as only 3/5th of a person and slavery the Supreme Court would not have had to step in.

[Covercorner]

Here, let me help out.

 

We always seem to look at Brown v. Board (1954) as the landmark case that ended segregation in schools, but ignore the multiple cases heard by the Supreme Court connected to Brown, later on. In fact, Brown was a two decision case on two seperate legal points. All the cases decided by the Supreme Court dealt with the 14th Amendments Equal Protection clause. cch, while the purpose of the laws passed after the 14th Amendment may not have violated it, the effects of those laws did violate the 14th.

[Covercorner]

No, I'm just criticizing the Court's practice of making decisions based on policy preference rather than a legal/constitutionalist perspective.

 

There is no mention in the Constitution of how the Court should come to a decision. This is to me, the most important aspect of our Constitution. Because the Courts have no formal instruction from the founding document, the Judiciary has a measure of Independence that the other branches don't. Thier independence allows those on the Court to use thier wisdom, thought, and prior precedent to judge acts and laws against the Constitution. In Federalist No. 78, Alexander Hamilto writes: "...the complete independence of the courts of justice is peculiarly essential.." We have had some Justices of the Supreme Court be considered Liberal, some Conservative. Ideas of Strict Constructionalism or Originalism(Textualism to Scalia) is allowed in a way that Loose Constructionist or ideas about a Living Document are. And that's not even getting into the idea of being an Judicial Activist(Liberal or Conservative). Basically, because the Supreme Court gets to decide the finer points of what is Constitutional or not, they can decide how they decide it as well.

As for the Civils Rights Act of 1964, I think that was the proper channel for segregation to send (although it came 10 years after the SC's decision to end segregation in Brown v BOE). And (on a different topic, the original one that I wanted to discuss) as noted in the first post, the SC overstepped the boundaries there as well.

 

I guess my whole point is they can. But if they do, they really didn't. Blame it on John Marshall.

[Getslow]

cch, what about the argument I frequently hear that the court eventually did exactly what the Congress wanted it to? That is to say, Congress often passes things it either doesn't want enforced or doesn't pass things it really wants to see because it would be politically disastrous to do so. Therefore, they depend on an independent judiciary to do the things they don't have the political will to do.

 

An example I always liked is the flag burning case. Congress passed a ban on flag burning, even though most members thought it was a bad idea, because it was politically beneficial to many of them. The court overturned the ban as a violation of free speech. Some have suggested that Congress did not hesitate a great deal on passing the ban because they knew the court would overturn the law. My own cynicism tells me that a few members probably then used the decision, which they personally agreed with, to attack "an out of control judiciary" to gain some political capital with their constituents.

[Covercorner]

cch, what about the argument I frequently hear that the court eventually did exactly what the Congress wanted it to? That is to say, Congress often passes things it either doesn't want enforced or doesn't pass things it really wants to see because it would be politically disastrous to do so. Therefore, they depend on an independent judiciary to do the things they don't have the political will to do.

 

An example I always liked is the flag burning case. Congress passed a ban on flag burning, even though most members thought it was a bad idea, because it was politically beneficial to many of them. The court overturned the ban as a violation of free speech. Some have suggested that Congress did not hesitate a great deal on passing the ban because they knew the court would overturn the law. My own cynicism tells me that a few members probably then used the decision, which they personally agreed with, to attack "an out of control judiciary" to gain some political capital with their constituents.

I've been told by a former Supreme Court clerk that it is a thought that goes around somewhat in the Court.

[cch5432]

Good points, and I appreciate the discussion. I guess I just view the Constitution from a very literal, textualist viewpoint, and would prefer if each branch of the federal government performed the duties specifically assigned to them.

[Covercorner]

Good points, and I appreciate the discussion. I guess I just view the Constitution from a very literal, textualist viewpoint, and would prefer if each branch of the federal government performed the duties specifically assigned to them.

I congratulate you for standing up for what you belive. The fact that we may disagree just means that we can have good debates later. Hopefully I can get around here some more. I do enjoy what you post and your passion for issues.