Still trying to organize my posting habits....
My most recent bus book was
The Color-Blind Constitution, by Andrew Kull (published 1992), a historical review of the concept of color-blindness as applied to the laws and Constitution of the United States. It begins with the efforts of women's anti-slavery groups in 1837-40, petitioning for the repeal of Northern-state laws which treated people differently on the basis of race. There were many such laws; Ohio is singled out as having an exceptional number of them, but even Massachusetts outlawed interracial marriage. (The efforts were coordinated between the states, and a more-or-less standard petition was drawn up. In Massachusetts, where the marriage ban was the only law obviously covered by the petitions, this opened the door to some rather crude mockery of the petitioners.) The petitions were unsuccessful, but did establish the color-blind principle as one possible abolitionist stance. (It was not universal among abolitionists, to be sure.)
The story proceeds to the heroic efforts of Charles Sumner and others to establish that school segregation was contrary to the Massachusetts constitution; Sumner's argument in
Roberts v. City of Boston, though it failed of its purpose, became a central one: the principle of equality before the law puts racial discrimination beyond the reach of government power. Chief Justice Shaw, ruling for the state supreme court, noted that the law dealt differently with adults as opposed to children and with men as opposed to women; since these were not exceptionable, neither was discrimination on racial grounds. Equal protection was not a strong enough argument; an outright constitutional ban on discrimination would be necessary.
During the Reconstruction period, there was an effort to write color-blindness into the Constitution; abolitionist leader Wendell Phillips pushed for the following amendment, which would have been the Fourteenth:
No State shall make any distinction in civil rights and privileges among the naturalized citizens of the United States dwelling within its limits, or among persons born on its soil of parents permanently resident there, on account of race, color, or descent.
Phillips gained the initial support of the formidable Thaddeus Stevens - unlike Phillips, a member of Congress - but, in committee discussions, Stevens eventually decided that three-fourths approval even of the Northern states (the Southern states being, at this point, disenfranchised) would be impossible, and instead agreed to a proposal by John Bingham, which eventually became the Fourteenth Amendment that we know today - establishing, as Massachusetts had, equal protection rather than nondiscrimination as a Constitutional principle.
From that point, the road to Jim Crow was clear. Though some judges interpreted the Fourteenth Amendment as banning discrimination, more did not - including, eventually, the majority of the Supreme Court in
Plessy v. Ferguson. Justice Harlan's dissent still pushed for nondiscrimination, but he was alone on the court: "separate but equal" became the legal mantra.
Interestingly, that phrase left the door open for continued attacks on segregation; over the next fifty years, there were numerous court cases ruling that this or that bit of segregation did not, in fact, provide equal facilities and therefore was unconstitutional. It was a piecemeal attack, but it accumulated force until, finally,
Brown v. Board of Education decreed that separate facilities were
inherently unequal.
Plessy was never fully repudiated; it was simply ruled that the standard it set for permissible segregation was unachievable. Harlan's dissent did not become the law of the land; instead, the argument of his opponents was pushed in an unexpected direction.
At that point, it seemed as though color-blindness was victorious (although the opinion in
Brown did not say so). Yet, only a decade later, those who fought for civil rights shifted their ground, calling for racial preferences in the other direction. Kull carefully explains how and why this happened, in a nuanced discussion which I won't attempt to reproduce. After the riots of 1964-65, the Kerner Commission offered a prescription for alleviating the problems of the black underclass, including among other things massive government employment programs, analogous to the New Deal's CCC. (Surely the plight of the underclass in the 1960s was as bad as that of the unemployed of the Great Depression!) But in the political and economic context of the '60s, the Kerner Commission's proposal was dead on arrival. All that was actually achievable lay in such methods as what we now know as affirmative action, forced busing, set-asides, and the protective clauses of the Voting Rights Act; Kull describes their emergence, and the reasons for their emergence, at considerable length.
Finishing the book, one feels dissatisfied. There were so many points where a "road not taken" might have led to better consequences; yet political and economic realities stood in the way. Wendell Phillips' amendment might have made a vast difference, but even the Radical Republicans were unwilling to go that far. The progressive judges of the last decades of the nineteenth century might have prevailed in the Supreme Court, stifling Jim Crow in the egg; but they were outnumbered by the conservatives who drafted the opinion in
Plessy. The Kerner Commission's proposals might have been acted on; but instead we chose to push for equality on the cheap, with results that are far from satisfactory.
This is, after all, a book on the history of constitutional law, and thus it is predictably dry in spots. Still, I learned a good deal from it, and would recommend it to anyone interested in the questions it discusses.
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