Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (25 page)

Laws permitting, and even requiring, their separation ... do not
necessarily imply the inferiority of either race to the other, and
have been generally... recognized as within the competency
of the state legislatures in the exercise of their police power.
The most common instance of this is connected with the establishment of separate schools for white and colored children,
which has been held to be a valid exercise of the legislative
power even by courts of States where the political rights of the
colored race have been longest and most earnestly enforced.

In plain English, the Court was saying that equality before the law,
which the Equal Protection Clause required states to respect, was not a generalized equality. It did not include social equality. Segregation of the
races by legislation was permissible, as was demonstrated by the fact that
even in Boston, Massachusetts-the most pro-black jurisdiction in the
country-public schools were segregated. The Fourteenth Amendment
must be understood as having a limited reach, in other words, because
everyone knows that public schools can be segregated without violating it.

Separate but Equal?

"All animals are equal, but some animals
are more equal than others."

George Orwell, Animal Farm

Having made this distinction, the Court then asserted its right to judge
the Louisiana segregation statute by a "reasonableness" standard. You
may wonder where in the Constitution the Court is given the power to
judge state statutes on the basis of "reasonableness." The answer is "nowhere." But the
Court claimed to find it in the Due Process
Clause of the Fourteenth Amendment.

The Court proclaimed that if it deemed a
state law "unreasonable," it would "strike it
down." In other words, the Court was
assuming a veto power over "unreasonable"
state laws. One might have thought that the
question of "reasonableness" belonged to
elected state legislatures and the people who
elected them. It was one of the ratifiers' fundamental principles that Americans should
resolve disputes about what is reasonable through elections. They did not
expect judges to take over the role of King George. But the Court assumed
that government by judiciary is preferable to government by legislators,
a breathtaking arrogation of power by an institution that owes its existence to a Constitution ratified by state ratification conventions.

In its "reasonableness" review in Plessy v. Ferguson, moreover, the
Court delivered itself of one of the great "constitutional" howlers of all
time. Louisiana's segregation law was reasonable, it concluded, because
the Louisiana legislature was free to consider "established usages, cus toms and traditions of the people, and ... the promotion of their comfort ... and the preservation of the public peace and good order." If blacks
believed segregation was an insult and an attempt to enforce white superiority, "it is not by reason of anything found in the act, but solely because
the coloured race chooses to put that construction upon it."

Doesn't Sound
Reasonable to Me

By the Court's "reasonableness" standard,
segregation is reasonable-and so is the
rule of judges rather than elected officials.

Elsewhere in its opinion, the majority noted that Congress had segregated the public schools in the District of Columbia without objection.
This policy shed light on the proper understanding of the Equal Protection Clause.

Once again in dissent, justice John Marshall Harlan issued a ringing
objection. "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 [civil rights, common to all citizens]," he insisted. He
decried the disjunction between the majority's statement that the stigma
associated with segregation was only in black people's minds and the
reality that laws like the Louisiana railroad segregation statute had been
adopted "not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by
or assigned to white persons." He then asked, perhaps rhetorically, why
a state entitled to segregate railroad cars might not as easily segregate various other areas of life.

Justice Harlan noted that everyone would agree that Chinese people
might properly be segregated, but they were different from blacks. This
offhand observation did not reflect a generalized Supreme Court hostility to Asians, however, as had been demonstrated by the Court's decision
in Yick Wo v. Hopkins (1886). In that case, the Court-taking an approach
very similar to the one it had taken in Strauder-vindicated the claim of
a Chinese resident of California.

Yick Wo involved San Francisco city ordinances regulating the laundry
business. San Francisco allowed city supervisors to determine (allegedly for
reasons of safety) what wooden buildings could be used as laundries. By the time Yick Wo took the matter to court, the supervisors had denied all of the
approximately two hundred applications by Chinese to run laundries, but
had granted all but one of approximately eighty applications by nonChinese. Yick Wo was already running a laundry business and refused to
pay a fine for not abiding by the city supervisors' regulations. So he was
thrown in jail, as were other Chinese laundry owners, and subsequently
petitioned for a writ of habeas corpus.

In its opinion, the Court said that the protection of the Fourteenth
Amendment was not confined to citizens of the United States (many of
the Chinese in San Francisco, including Yick Wo, were not citizens), that
enforcement of the ordinance was blatantly discriminatory, and that the
Court had the right to strike down such abuses of power by local authorities. The Court then ordered Yick Wo and his fellow laundry men
released from prison.

In that same year of 1886 the Court also heard arguments in Santa Clara
County v. Southern Pacific Railroad Co. The historic decision in this case
actually happened before the ruling. The chief justice announced that the
Court didn't need to hear an argument about whether a corporation was
a "person" entitled to the protection of the Equal Protection Clause. The
justices, he said, had already agreed that it was!

In reality, of course, the Fourteenth Amendment had nothing to do
with corporations. It was directed particularly at freed slaves, but the late
nineteenth-century Court favored corporations and used the Fourteenth
Amendment to create the outcome it wanted.

This predilection received one of its classic expressions in Allgeyer v.
Louisiana (1897). At issue in Allgeyer was a Louisiana statute that regulated insurance companies selling marine insurance in the state. In applying the Fourteenth Amendment's Due Process Clause ("nor shall any State deprive any person of life, liberty, or property, without due process
of law"), justice Rufus W. Peckham announced:

The liberty mentioned in [the Fourteenth Amendment] means
not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is
deemed to embrace the right of the citizen to be free in the
enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood
by any lawful calling; to pursue any livelihood or avocation,
and for that purpose to enter into all contracts which may be
proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.

As Supreme Court expert David P. Currie put it, "This, of course, is not
what was provided in Magna Charta, from which the due process clause
had been derived, but Peckham did not pause to justify his momentous
and latitudinous interpretation; and thus liberty of contract found its way
into the Constitution by bald fiat." Indeed, and apparently whatever "liberty" meant under the Fourteenth Amendment, it did not include the
right of a freely elected legislature to enact laws for the public benefit
under the terms of the state's constitution.

What practical effect did this "bald fiat" have in the case at hand? The
Fourteenth Amendment's Due Process Clause was meant to ensure that
defendants were guaranteed "due process of law." Now it was being misappropriated by the Court so the justices could sit in judgment on state statutes.

When President Bill Clinton said in his grand jury testimony, "It depends
on what the meaning of the word `is' is," he could have been trying out
for a seat on the Supreme Court. The Court has always had its own artful way with words, defining travel as commerce, charters as contracts, "necessary" as not really necessary, and so on. When it comes to "due
process," the Court created the idea of "types" of due process. There are
"procedural due process" and "substantive due process," which really
amounts to a distinction between due process as it is meant in the Fourteenth Amendment and due process as an excuse for judicial usurpation.
(The Court used the Fifth Amendment's Due Process Clause the same way
in Dred Scott v. Sandford when it ruled that the clause required Congress
to allow slavery in federal territories.)

For four decades, the Supreme Court used "due process" to create a
laissez-faire principle of "liberty of contract" in American "constitutional" law. One might contend that laissez-faire is a good principle, but
the goodness of laissez-faire is not the issue. The question is whether
Americans are to be governed by their elected officials or by unelected
judges who enforce whatever "principles" happen to appeal to them at
any given time.

Once the Court had undertaken to legislate in the name of "due
process," it could not be expected to forever confine itself to policing the
economy in the interests of laissez-faire. Power tends to corrupt, after all,
and Supreme Court justices love power as much as anyone and have no
lack of confidence in their own economic and moral insights.

Congress not only acquiesced in the Supreme Court's usurpation of
power, but also actively encouraged its expansion (as part of the general
campaign to expand the powers of the federal government). At the end of
the nineteenth century, Congress began creating administrative agencies
with legislative, executive, and judicial powers, and it practically begged
the courts to assume legislative functions.

In 1887 Congress created the Interstate Commerce Commission. This
agency, which would be responsible to no one, was to enforce an act
requiring that railroad rates be "reasonable and just." Members of the
five-man commission could hear complaints, audit railroads' accounts, and compel testimony. Its power to issue "cease and desist" orders to violators gave it what amounted to the power to set rates.

Did the Constitution give Congress the power to create such agencies?
Certainly not. But respect for-even understanding of-such basic constitutional principles as the separation of powers had virtually vanished
since the disputes over the Neutrality Proclamation of 1793 and the Alien
Friends Act of 1798.

In 1890 Congress adopted the Sherman Antitrust Act. It hardly
amounted to "law" at all; it was merely a license to federal courts to concoct anti-big business rules. In fact, the language of the act does not even
provide clear rules for avoiding violation of it. As Professor Thomas J.
DiLorenzo has pointed out, the act was pushed by farmers who didn't
want to have to compete with "giant wheat farms" (what they called
"land monopolies") and by other groups that wanted to regulate railroad
rates. The interests behind the act help to explain its incoherent and even
nonsensical nature. The real purpose of the act was to allow politicians
to claim they were fighting for the average Joe while they doled out benefits to organizations with political clout-small farmers' associations,
inefficient sugar producers, inefficient petroleum producers, and otherswho were failing to compete with successful businesses that were growing rapidly and lowering prices.