SEPARATE BUT EQUAL? A REVIEW

The 18^th May 1896 and 17^th May 1954, fifty-eight years later, are landmarks in the ‘civilising’ of the United States. Both days concern the decisions of the United States Supreme Court. The later being the overturning of a decision that the only dissenting judge in 1896 said would “become as infamous as that of Dred Scott –v Sandford (1857)”

Why bother going over it? At a time when the whole concept of the rule of law is being severely tested, I think the attitudes of those Justices (who are the final arbiters on the laws of their country) are, what Martin Heidegger would call, fragwürdig (worthy of being questioned).

Dred Scott v. Sandford, 60 U.S. 393 (1857), was a ruling by the United States Supreme Court that people of African descent imported into the United States and held as slaves (or their descendants, whether or not they were slaves) were not protected by the Constitution and could never be U.S. citizens. The court also held that the United States Congress had no authority to prohibit slavery in federal territories and that, because slaves were not citizens, they could not sue in court. Furthermore, the Court ruled that slaves, as chattels or private property, could not be taken away from their owners without due process. The Court actually ruled that the Fifth Amendment of the Constitution of the United States prohibited the federal government from freeing slaves brought into federal territories.

The Fifth Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It’s that final clause that reveals the attitudes of those 19^th century gentlemen Justices of the Supreme Court. “...nor shall private property be taken for public use, without just compensation.”  "They're slaves, not citizens but chattels, they have no standing before this court, so what's the problem? Go away"

Roger Taney

The Supreme Court ruling was handed down on March 6, 1857. Chief Justice Roger Brooke Taney delivered the opinion of the Court, with each of the concurring and dissenting Justices filing separate opinions. In total, six Justices agreed with the ruling; Samuel Nelson concurred with the ruling but not its reasoning, and Benjamin R. Curtis and John McLean dissented. The court misspelled Sanford's name in the decision.

And so we move on the the wonders of the 18th May 1896, only 39 years later and 31 years after a brutal civil war was fought in order to preserve a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. On that day the Supreme Court handed down its decision in the matter of Plessy v. Ferguson, 163 U.S. 537 (1896) holding that the separate but equal provisions of private services mandated by state government is constitutional under the equal protection clause of the 14th Amendment of the Constitution of the United States. In other words they upheld the validity of state laws requiring racial segregation in private business (particularly railroads) under the doctrine of "separate but equal".

The 14th Amendment reads:

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. 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.

This is precisely the part of the Constitution that Plessy was arguing supported the claim that segregation was unconstitutional and therefore against the law; yet, in a 7 to 1 decision handed down on 18th May, 1896  the Court rejected Plessy's arguments based on the Fourteenth Amendment, seeing no way in which the Louisiana statute violated it. In addition, the majority of the Court rejected the view that the Louisiana law implied any inferiority of blacks, in violation of the Fourteenth Amendment. Instead, it contended that the law separated the two races as a matter of public policy. Justice Henry Billings Brown the author of the opinion for the Court that upheld the legality of racial segregation in public transportation and the doctrine of separate but equal.

Henry Billings Brown

When summarizing, Justice Brown declared, "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the coloured race chooses to put that construction upon it."

John Harlan

How can any thinking being come to the conclusion that enforced separation is perfectly OK after reading the 14th Amendment? How can one interpret "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" as statement supporting the concept of segregation? Seven Justices of the Supreme Court did. It was only the lone voice of Justice John Marshall Harlan, a former slave owner who decried the excesses of the Ku Klux Klan, wrote a scathing dissent in which he predicted the court's decision would become as infamous as that of Dred Scott v. Sandford.

Earl Warren

This decision stood for 58 years until the matter of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) that declared state laws establishing separate public schools for black and white students unconstitutional. The decision finally overturned Plessy v, Fergusson Handed down on the 17^th May, 1954, the Court’s unanimous (9–0) decision stated that "separate educational facilities are inherently unequal." As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the 14^th Amendment of the United States Constitution. This ruling paved the way for integration and the civil rights movement. The presiding Justice was Earl Warren who was the 14^th Chief Justice of the United States Supreme Court. He is best known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending school prayer, and requiring "one-man-one vote" rules of apportionment. He made the Court a power center on a more even base with Congress and the presidency. Warren’s Court stated, inter alia:

"Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does... Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system... We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

Finally a decision that used common sense as opposed to prejudice. Warren, who served three terms as Governor of California, was nominated to the Supreme Court by a Republican President, Dwight D. Eisenhower, the man who said 'we go' on the 6th June 1944. California now has Arnold Schwarzenegger. 

It would not be inappropriate, in my view, to return to Warren's common sense approach, and a greater respect for individual human dignity than is being shown at present. Even dare I say, a more christian approach, of not being so quick on the draw towards even the most heinous evil doer. In any event, this video worth a look.