In the immediately preceding post I suggested that the Washington Post‘s editorial this morning on the Michigan affirmative action cases, in which it urged the Supremes to avoid “a heavy-handed imposition” of their own views and defer to “the political arena” to deal with the propriety of racial discrimination, was reminiscent of the Richmond and Montgomery papers opposing Brown v. Board of Education.
In that regard, consider the following well known historical document, slightly edited and amended to reflect the current controversy. It is the Southern Manifesto of 1956, signed by 19 Senators and 77 Representatives criticizing the “unwarranted” Brown decision as “a clear abuse of judicial power.” I have indicated my changes — substituting “racial preferences” or “diversity” for “segregation” or related terms — by underlining and omissions by ellipses.
DECLARATION OF CONSTITUTIONAL PRINCIPLES
The unwarranted decision of the Supreme Court in the public school cases is now bearing the fruit always produced when men substitute naked power for established law.
The Founding Fathers gave us a Constitution of checks and balances because they realized the inescapable lesson of history that no man or group of men can be safely entrusted with unlimited power. They framed this Constitution with its provisions for change by amendment in order to secure the fundamentals of government against the dangers of temporary popular passion or the personal predilections of public officeholders.
We regard the decisions of the Supreme Court in the school cases as a clear abuse of judicial power. It climaxes a trend in the Federal Judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.
The original Constitution does not mention education. Neither does the 14th Amendment nor any other amendment. The debates preceding the submission of the 14th Amendment clearly show that there was no intent that it should affect the system of education maintained by the States.
The very Congress which proposed the amendment subsequently provided for racial preferences in the District of Columbia.
When the amendment was adopted in 1868, there were 37 States of the Union. . . .
Every one of the 26 States that had any substantial racial differences among its people, either approved racial preferences or subsequently established racial preferences by action of the same law-making body which considered the 14th Amendment.
As admitted by the Supreme Court in the public school case (Brown v. Board of Education), the doctrine allowing race conscious admissions “apparently originated in Roberts v. City of Boston (1849), upholding racial preferences against attack as being violative of a State constitutional guarantee of equality.” This constitutional doctrine began in the North, not in the South, and it was followed not only in Massachusetts, but in Connecticut, New York, Illinois, Indiana, Michigan, Minnesota, New Jersey, Ohio, Pennsylvania and other northern states until they, exercising their rights as states through the constitutional processes of local self-government, changed their school systems.
In the case of Plessy v. Ferguson in 1896 the Supreme Court expressly declared that under the 14th Amendment no person was denied any of his rights if the States took race into account. This decision has been followed in many other cases. It is notable that the Supreme Court, speaking through Chief Justice Taft, a former President of the United States, unanimously declared in 1927 in Lum v. Rice that the diversity principle is “within the discretion of the State in regulating its public schools and does not conflict with the 14th Amendment.”
This interpretation, restated time and again, became a part of the life of the people of many of the States and confirmed their habits, traditions, and way of life….
Though there has been no constitutional amendment or act of Congress changing this established legal principle almost a century old, the Supreme Court of the United States, with no legal basis for such action, undertook to exercise their naked judicial power and substituted their personal political and social ideas for the established law of the land.
This unwarranted exercise of power by the courts, contrary to the Constitution, is creating chaos and confusion….
We reaffirm our reliance on the Constitution as the fundamental law of the land.
We decry the Supreme Court’s encroachment on the rights reserved to the States and to the people, contrary to established law, and to the Constitution.
We commend the motives of those States which have declared the intention to defend diversity by any lawful means.
We appeal to the States and people who are not directly affected by these decisions to consider the constitutional principles involved against the time when they too, on issues vital to them may be the victims of judicial encroachment.
Even though we constitute a minority in the present Congress, we have full faith that a majority of the American people believe in the dual system of government which has enabled us to achieve our greatness and will in time demand that the reserved rights of the States and of the people be made secure against judicial usurpation.
We pledge ourselves to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation….
Signed by:
MEMBERS OF THE UNITED STATES SENATE
Walter F. George, Richard B. Russell, John Stennis, Sam J. Ervin, Jr., Strom Thurmond, Harry F. Byrd, A. Willis Robertson, John L. McClellan, Allen J. Ellender, Russell B. Long, Lister Hill, James O. Eastland, W. Kerr Scott, John Sparkman, Olin D. Johnston, Price Daniel, J.W. Fulbright, George A. Smathers, Spessard L. Holland.
MEMBERS OF THE UNITED STATES HOUSE OF REPRESENTATIVES
Alabama: Frank W. Boykin, George M. Grant, George W. Andrews, Kenneth A. Roberts, Albert Rains, Armistead I. Selden, Jr., Carl Elliott, Robert E. Jones, George Huddleston, Jr.
Arkansas: E.C. Gathings, Wilbur D. Mills, James W. Trimble, Oren Harris, Brooks Hays, W.F. Norrell.
Florida: Charles E. Bennett, Robert L.F. Sikes, A.S. Herlong, Jr., Paul G. Rogers, James A. Haley, D.R. Matthews.
Georgia: Prince H. Preston, John L. Pilcher, E.L. Forrester, John James Flynt, Jr., James C. Davis, Carl Vinson, Henderson Lanham, Iris F. Blitch, Phil M. Landrum, Paul Brown.
Louisiana: F. Edward Hebert, Hale Boggs, Edwin E. Willis, Overton Brooks, Otto E. Passman, James H. Morrison, T. Ashton Thompson, George S. Long.
Mississippi: Thomas G. Abernathy, Jamie L. Whitten, Frank E. Smith, John Bell Williams, Arthur Winstead, William M. Colmer.
North Carolina: Herbert C. Bonner, L.H. Fountain, Graham A. Barden, Carl T. Durham, F. Ertel Carlyle, Hugh Q. Alexander, Woodrow W. Jones, George A. Shuford.
South Carolina: L. Mendel Rivers, John J. Riley, W.J. Bryan Dorn, Robert T. Ashmore, James P. Richards, John L. McMillan.
Tennessee: James B. Frazier, Jr., Tom Murray, Jere Cooper, Clifford Davis.
Well put. If anything, the analogy is too generous to U. Mich. For all of its faults, at least the dreaded “separate but equal” doctrine required that the disfavored group be given something in exchange for the benefit that was denied to it on account of race. In Plessy, that meant that states could carve up trains into black and white cars, but only if the court was satisfied that the cars were of substantially equal value. Affirmative action is not like that. To someone who is denied admission on account of his race, it’s worse than being asked to ride in a separate car; it’s more like being kicked off the train completely.
Let’s be honest here.
When I was a child and another civil rights bill had just been enacted, I asked my dad, “What exactly was wrong with separate but equal?” He replied, quite correctly, that the whole point of so-called “separate but equal” was separate but not equal, and we had 70 years’ evidence that the people who wanted separate didn’t care at all about equal. (Yeah, right at the end they tried equalizing black schools, but only in the hope it would prevent Brown, entirely out of expedience. Similarly, a few weeks before the Confereracy collapsed they agreed to draft slaves as soldiers and manumit them afterwards.)
The gap between segregated Southern schools was larger, much larger, than today’s gap between the University of Michigan and (say) Western Michigan or Michigan State. Anyone who compares the damages suffered by whites under affirmative action to the damages suffered by blacks under Jim Crow is either very young or very foolish. I’m sorry I can’t put that more politely.
Andrew – I certainly agree that the impact of race preferences on whites is as nothing compared to the impact of segregation on blacks. But I don’t thinking creating a hierarchy of historical evils is relevant to whether discriminating on the basis of race passes legal muster. A number of evils weren’t as bad as segregation — keeping Jews our of country clubs and medical schools comes to mind — but that doesn’t mean they weren’t wrong. Segregation, for that matter, wasn’t as bad as the holocaust. So what? The question here is whether discriminating on the basis of race is an allowable — and if allowable, advisable — method of promoting the kind of society we want. I don’t think it is, but I have no trouble accepting the fact that a number of reasonable and decent people disagree.
Oh, I’m not arguing for affirmative action here. I’m no longer so sure I even want to make that argument, at least with respect to graduate school and law school admissions.
I was arguing against the previous comment, esp “To someone who is denied admission on account of his race, it’s worse than being asked to ride in a separate car; it’s more like being kicked off the train completely.”
That’s just not so. (Reading this, you would think that the University of Michigan not only rejected some white applicants who were “on the bubble” but prohibited their going anywhere else, too.)
Andrew, what is the phrase a lot of well educated people like to use? Intellectual dishonesty? I think this applies to your rejection of the analogy of being kicked off the train. John’s analogy is correct and apt. Segregation didn’t preclude you from taking the journey as affirmative action does.
First, as I pointed out already, it is much more apt to see “law school” as the train and “Michigan” as the first-class car. Rejectees from Michigan are free to attend other, less competitive law schools within Michigan, or highly competitive law schools that don’t practice AA, like U. Texas, just as blacks who wanted to ride in the same train car as whites could move North. It is much less accurate to see “Michigan” as the entire train, ignoring the back-up schools, which these plaintiffs might have had to attend anyway.
However, this only equates AA with Plessy, whereas I hold that Plessy was really much worse. In the interests of intellectual honesty, let’s note significant differences:
1. Plessy applied to all blacks, whereas Michigan’s system injures only a small number of whites who were marginal non-AA admits;
2. The system of “separate-but-equal” ushered in by Plessy resulted, in practice, in discrepancies in quality much greater than anything caused by AA;
3. Historically, Plessy sanctioned a systemic disregard for all sorts of rights of blacks (e.g., the right to vote, the right to be tried and not lynched, even the right to the “equal” in “separate-but-equal”), not comparable (thank God!) to anything on the American horizon, with or without AA.
You (and Mr Bishop) really seem to think, or at least to pretend, that Plessy and its sequelae were all about forced segregation into two truly-identical train cars, and nothing else. Is this ahistorical naivete, or that dread intellectual dishonesty?
Well, this all remains very interesting. First, I think Jeff Bishop’s (not my) point about the trains in Plessy was provocative, as I suspect he meant it to be. I seriously doubt that he thinks AA worse than segregation.
Re Andrew’s other points: his observation that the white victims of racial preferences remain free to attend other, lesser law schools in Michigan or other, better law schools out of state would apply as well (some, like me, think better) to the minority applicants who would not be admitted in the absence of preferences. One thing that makes that “fit” better is that, at least among undergraduates (I can’t recall having seen figures for law students at Michigan, but I have for Boalt, which confirms the pattern) a higher percentage of preferentially admitted students fail to graduate than of non-preferentially admitted students. (See my recent post on Yale, which mentions this.)
Now, back (or should that be Bakke?) to Plessy: I completely agree with Andrew about the horrors, and horrible effects, of that opinion. But I would like to note what I think is an under-appreciated irony (this is the road-show appearance of what may be a full-fledged post in the future): without realizing it preferentialists like Andrew actually agree in substantial part with the majority in Plessy, and that majority in turn was actually correct about the original intent of the 14th Amendment.
The old abolitionist radicals — Wendell Phillips in the Senate, Thaddeus Stevens in the House, and their allies — tried but failed to include a strict colorblind standard in the 14th. They were defeated by the moderate and conservative Republicans who insisted on the vague an amorphous “equal protection” language precisely because it allowed discrimination that was thought to be reasonable.
History, like politics, makes strange bedfellows, and today’s conservatives who insist on colorblindness are echoing the arguments of dead, failed radicals, while today’s liberals reject colorblindness and endorse what they regard as reasonable racial distinctions — echoing the Plessy majority who were in turn faithful to the original intent of the moderate/conservative Republicans who dictated the language of the 14th. (Much, but not all, of the above based on one of the very best books on all this, THE COLORBLIND CONSTITUTION, by Andrew Kull.)
Finally, a footnote that is not really relevant to any debate going on here but is nevertheless interesting: as I’ve said, I think Andrew is right about Plessy, but, for whatever this factoid may be worth, the railroad cars actually at issue in that case not only were in fact equal but were identical: certain cars would be restricted either to whites or blacks when the train went in one direction, and the restrictions were reversed when it turned around and came back. That may well be the only time in Southern history when separate but equal really was equal.
[…] going on only once — the famous Southern Manifesto of 1956, which I “revised” at length here. That Manifesto, signed by 19 Senators and 81 Representatives from the South, with only minor […]
[…] going on only once — the famous Southern Manifesto of 1956, which I “revised” at length here. That Manifesto, signed by 19 Senators and 81 Representatives from the South, with only minor […]