Wednesday, May 19, 2004

Missing the boat by so much, it's not even funny

I've seen some blatantly absurd statements in my time, but La Shawn Barber's editorial on a conservative website has to rank pretty high on that list. Apparently, the main invective impulse of the editorial is that an African-American woman is decrying the Brown decision, declaring:

Although its outcome may have been just, Brown was decided unconstitutional.

Now, let's begin by noting that her claim is incorrect: Brown was perhaps decided unconstitutionally, but it certainly was not decided unconstitutional. Grammatical flaws aside, her argument is clearly based on the most cursory of readings of the original decision. Again, she claims that:

By properly interpreting the 14th Amendment, however, the Court in both Plessy and Brown could have arrived at legally sound decisions.

However, if one reads even the summary of the original Brown decision, one can find that the justices made the following point:

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. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

Ms. Barber's reasons for claiming that this is an incorrect interpretation of the Fourteenth amendment is that apparently

For reasons difficult to determine, the Court chose not to base their ruling on these grounds, but on an analysis of "public education in light of the full development and its present place in American life..."

which is patently absurd, and a misquotation to boot. The actual statement, contained in the syllabus at the start of the decision, reads as follows:

(b) The question presented in these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the Nation.

They continue on to state that trying to determine the intent of the writers of the amendment--a popular conservative tactic for railing against so-called "liberal activism"--is impossible in the case of the Fourteenth Amendment, and that therefore they need to study the case more closely.

Where they decided the case "unconstitutionally" is an enigma to me. However, it should not be too surprising that Ms. Barber is a proud member of the Ward Connerly school of political thought. Its basic credo: I'm doing just fine, so all you need to do to succeed is work a little harder. Forget affirmative action--all you need is more spit and polish!


At June 18, 2004 at 3:31 PM, Blogger La Shawn said...

For some reason, GOPUSA was the only site that incorporated that typo into my column. The original rendering "Although its outcome may have been just, Brown was decided unconstitutionally." It's correct on the other 5 sites I post to.

My point in the piece is the original intent of the 14th amendment had nothing to do with public school education. Government-sanctioned segregation by race was and is unconstitutional, as is race discrimination, which is what us "Ward Connerly school of thought" folks believe. The court could have made a much more solid decision than the one made by relying on the signs of the times and a flawed "psychological study" (which you didn't address) and reading into the law what clearly was not there. Desegregation was the RIGHT decision, and you'll get no argument from me on that.

At July 2, 2004 at 5:04 PM, Blogger Ahmed said...

I thought that my post addressed the point--but in case it wasn't clear--what I believe the case the justices were trying to make is that while the Fourteenth Amendment bans "separate but equal" institutions, they have to first show that segregated schools caused harm to students in the system. [My understanding of the general principles of civil law in this country is that one must first demonstrate that one is harmed by a given practice before it can be found unconstitutional.] This would explain the need for a finding that takes into account the evolution of American schools.

The problem is that if segregated schools were created separate but equal, but it turns out that no one is harmed (funding is equal, test scores are equal, etc.), then I'm not sure how you go about using the Fourteenth Amendment to end the practice. [That is, even if it was done for the wrong--but not per se illegal--reasons, if everything works out OK, it's hard for courts to interfere.]

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