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A newly minted law school graduate opines about the law, his existence, and existence at large. Hopefully the interplay will amuse you...it amuses me 24-7. Welcome to my thoughts, my feelings, and my chaotic mind.
Thursday, December 29, 2005
Justice Harlan's Dissent in Plessy v. Ferguson.
So I'm sitting here in Starbucks prepping for the coming semester, which includes Constitutional Law II. At my law school, Constitutional Law is separated between two semesters: the first semester involves federalism and national powers, and the second semester deals with individual liberties.
One of the cases we have to read in preparation for the first day of Constitutional Law II is Plessy v. Ferguson, 163 U.S. 537 (1896). Just a quick primer, the case dealt with the application of a Louisiana statute that provided for separate but equal railway carriages for white and "colored races."
The Supreme Court found in this case that the legislation was valid - and their reasoning suffers large loop holes. First and foremost, they draw the distinction that the Fourteenth Amendment was drafted to guarantee the equal protection of political rights but NOT social rights. Thus, the Louisiana statute was valid and permissibly - especially since "the most common instance of this is connected with the establishment of separate schools for white and colored children." 163 U.S. at 544.
Moreover, the Court proceeds to find that there is a "underlying fallacy" in the petitioner's argument. Id. at 551. That fallacy was "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 colored race chooses to put that construction upon it." Id. The argument assumes that if "the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby regulate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption." Id.
Oh how wrong I think the Court is. But what is most powerfully written is Justice Harlan's dissent. When writing legal briefs, law students learn to vary their tone and delivery. Once such mechanism is to use varying sentence structure - to bury in longer sentences unfavorable positions of law and to make short, succinct, and powerful the law that is favorable. Justice Harlan's dissent epitomizes this.
"In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.
The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the 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.’ These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. 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.'" Id. at 554-55.
"The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. 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." Id. at 559.
"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. What can more certianly arouse race hate, what more certinaly create and perpetuate a feeling of distruct between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens?"
There are other relevant portions to his dissent, but these last two paragraphs I have posted are most powerful, most amazing, and most promising. This is a man that was alive and on the bench in 1896, and yet forward thinking enough to understand the fact that the law is color-blind, and that the legislatures should not be allowed to draw distinctions with regard to the race. Moreover, from this view, we can understand also why anytime legislation enacts so "pernicious" a classification as race, it must be for a "government compelling interest" and must be "narrowly tailored" such as not to trammel the rights of those not brought under the statute.
Moreover, this particularly resounds deeply for me and shows that there is indeed hope for a great equality in this country, especially as a gay, Asian law student.
Posted by B-Funk Legalmnky at 6:01 PM
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