How Thurgood Marshall Beat David Allan Coe

“We consider the underlying fallacy of the plaintiff’s argument to consist in 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.”

Plessy v. Ferguson, 163 U.S. 537 (1896)

“To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

Brown v. Board of Education, 347 U.S. 483 (1953)

Humans are strange creatures.  We’re brilliant problem-solvers, capable of extraordinarily high levels of reasoning.  But that reasoning is not all that makes us human; our humanity is characterized as well by the fact that we are each motivated by a complex range of emotions, feelings, and values.  Some of these feelings and values we seem to have collectively agreed are “good” motives, whilst others are indisputably “bad.” Indeed, where an act is motivated some of these “bad” values, we’ll even go so far as to conclude that the action is irrational.  An act out of anger, or hate, or just visceral discomfort is generally an act of which one is to be ashamed. An act of benevolence, or love, or pure joy is generally an act of which one is to be proud.

Unfortunately, that high capacity for reasoning means we’re also really good at rationalizing, to the point that it’s remarkably easy to deceive ourselves as to our own actual motives.  We may suddenly, for instance, place concerns about process over concerns about effects – or, as the case may be, vice versa, telling ourselves all the while that these concerns are wholly consistent with views on other matters in which we’ve taken the opposite position.  We may also give ourselves insufficient credit, claiming to be at the mercy of our culture rather than active participants therein.

The difference between the two quotes I refer to above, indeed the source of the difference between Plessy and Brown more generally is an emotional difference, not to mention a cultural difference.  It is a difference borne out of actually giving a crap about how another group is affected by something.  It is not a difference of disproving notions of racial superiority, nor even one of consciously rejecting racism.

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In 1982, country legend David Allan Coe made an underground release of an album appropriately titled “Underground Album,” featuring a litany of purportedly comedic songs feeding on racist and misogynistic prejudices, including the unambiguously titled “Nigger Fucker.”  Twenty years later, Coe prickled defensively when a newspaper article accused the album of being racist, with Coe suggesting it was merely comedic, and saying “My drummer, Kerry Brown, is black.” No doubt Coe actually believed this, and no doubt he really was offended by the accusation of racism.

Senior year of college, a friend of mine found some of the tracks from the Underground Album.  He found the album to indeed be quite comedic, though surely he thought he was being ironic in thinking so.  I’m ashamed to admit that I did as well, as did several other friends of mine, ranging from die-hard conservatives to raging left-wing liberals.  None of us thought we were racist, nor that there was anything racist about our enjoyment of the Underground Album.  Had anyone suggested as much, we would have muttered something about political correctness and responded much as Coe would do when the accusation was laid at him a little while later.

Another friend of mine at the time was bi-racial, as well as an unabashed liberal.  Despite the fact that many of us, including me at the time, were proudly conservative, we had all come to hold this friend in extremely high regard, both on a personal level, but also on a political level – never did he shout at us or caricature our positions or throw out any accusations of ulterior motives.  I can’t say that the reverse was true.  I’m quite certain that at the time, I at least also made an effort to avoid discussions about race with him.

Shortly after graduation, we all got together for a cookout.  Someone (not me) decided it would be a good time to play some tracks from the Underground Album.  This friend, who I do not believe had heard these tracks before, upon hearing them, proceeded to do something remarkable for its simplicity.  He turned to us, said merely “I’m not comfortable listening to this,” and walked over to the stereo and changed the music.  He said nothing else about it – his message was sent, and I’m quite certain none of us pushed back on what he did.

It took a few more years before my views on racial politics would really start to evolve, and I still surely hold at least some of the same views as I did then, though by no means close to all.  But that style of racial “humor” stopped being funny almost immediately.  In retrospect, the manner in which I discussed racial issues also started to change fairly quickly, as did my willingness to discuss them and to listen carefully to people taking different positions than my own on racial issues.

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Remarkably, Plessy in some respect claims to reject the notion that one race is inherently superior to another, claiming that any interpretation to that effect is “solely because the colored race chooses to put that construction upon it,” and that segregation laws did nothing other than acknowledge a cultural reality (that the majority of the politically dominant white race viewed blacks as inferior).  Insofar as the Plessy court claimed that its decisions lacked the power to change the cultural view that blacks were inferior, it was even correct; the problem is that it willfully and blindly chose to ignore that the very laws it refused to overturn were an attempt to make the social inferiority of blacks permanent, an attempt to prevent the type of social change necessary for blacks to achieve social equality.*

In Brown, the Court in part distinguishes itself from Plessy by writing that “Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences, as well as in the business and professional world.”  In his opening speech to the other justices, Chief Justice Warren also purportedly emphasized the intellect and talent of the NAACP lawyer, Thurgood Marshall, at oral argument, suggesting that this proved the acknowledged premise underlying segregation laws was a load of hooey.   The Brown decision of course goes on to place great emphasis on studies showing the harm segregation caused to black Americans, specifically overruling Plessy to the extent that Plessy found segregation did no harm to black Americans.

The same conflicting principles were at issue in both cases, and to the same extent: states’ rights versus equal protection.  The same groups of people benefitted from, and were hurt by, preferring one principle over the other in each case.

Nowhere in Brown does the Court disown or even really address one of Plessy’s core and- to the modern eye- most appalling claims: that legal distinctions between the races are entirely inherently rational, and just an acknowledgement of social realities.   Nowhere does Brown attack the bigotry of segregation, nor the outrageousness thereof.  Indeed, it does not even purport to say that segregation is premised on hatred or any other ill motive, nor does it even decry the virtues of color-blindness.

To the extent Brown has been criticized over the years, that criticism has primarily focused on its purported basis in social science rather than law and precedent to overrule Plessy.  In this criticism, Brown is “results-oriented judicial activism.”

What is ignored in this criticism is that Plessy‘s 14th Amendment analysis was based on even less law.   Plessy acknowledges that the 14th Amendment requires that “every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class,” yet asserts, without any apparent basis, that any conclusion that segregation was “for the annoyance or oppression of a particular class” is “solely because the colored race chooses to put that construction upon it.”  By Brown, enough people gave enough of a crap about black people to validate that segregation actually caused black people harm, even if they were still been unwilling to give enough of a crap to validate the harm to black people caused by private activities.  The harm to black people mattered, even if only enough to win this particular case.

All of the excuses and obfuscations, the attempts to make the legal debate over segregation about deepseated -and otherwise legitimate- differences in views on Constitutional interpretation fell by the wayside.  If Brown is criticized for failing to attempt to address disputes over Constitutional interpretation, its unanimity should demonstrate that this purported “failure” is because disputes over Constitutional interpretation were indisputably irrelevant, or at least unnecessary, to resolution of the question once one gave a modicum of a crap about harm to black people.

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Social change leads to political change far more readily than political change leads to social change.  Social change comes from making sure others care just a little bit more about how things affect you, and then making sure others know when and how things affect you.  It comes from participating as fully in society as possible, not by trying to create separate societies of those who are and are not approved.  Stigma is useful when you’ve already won the battle, a great way of mopping up the last remnants of resistance; it is not terribly useful when those you seek to stigmatize are as or more numerous than you, no matter how deserving of stigma they may be.

 

 

*In this regard, segregation laws were unusually effective at putting the brakes on social change, deeply restricting the ability of blacks to interact with whites in a manner that would allow the formation of even superficial relationships capable of leading to white people giving a modicum of a crap about black people.

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33 thoughts on “How Thurgood Marshall Beat David Allan Coe

  1. I loved this entire essay but went I came across this sentence, I knitted my brow. Something didn’t sit right.

    Nowhere in Brown does the Court disown or even really address one of Plessy’s core and- to the modern eye- most appalling claims: that legal distinctions between the races are entirely rational, and just an acknowledgement of social realities.

    Of course, I started thinking about all kinds of weird things like AA, sub-sections of the census, so on and so forth and then the question of laws that fail to acknowledge social realities bubbled up and I really started knitting…

    While it certainly seems that the legal distinctions being made are being made “for good” (unlike, of course, in the past), that makes the legal distinctions that *WE* are making the good kind… but there seems to be a part of me that is very much torn between the importance of acknowledging social realities and the importance of creating new social realities… and the impossibility (? Maybe it’s just difficulty) of doing that without some legal distinctions being made that seriously take social realities into account.

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    • Figure you could do a damn decent job of getting AA, if you just worked by wealth and not race. After all, that correlates so strongly with the types of discrimination blacks/hispanics have experienced…

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    • In retrospect, that is a line that could have been much better phrased. It is also the part of the post I most struggled to write. Does your eyebrow become a little less furrowed if I change “entirely” to “inherently”? I’m still not certain doing so gets my point across, but maybe it does a better job.

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  2. A swimmingly good post. Particularly challenging is the notion that a retreat into formalism is the preferred maneuver of a decision maker who finds grappling with the merits of a dispute uncomfortable.

    I think a lot more of us are guilty of that, a lot more often than we would prefer to believe.

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        • as I said, we’re not good at telling the difference. But an example of where I think formalism is just about always necessary is when it comes to application of the exclusionary rule of evidence. i view it as essential that this rule be applied rigidly even if it means the guilty “get off on a technicality.”

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          • If the resort to formalism wrt the exclusionary rule is necessary, then how would the limits of the exclusionary rule ever be revised? That is, how could a dispute over those limits ever be resolved?

            Of course, you might have the principle itself in mind (and not what the specific exclusions that fall under it), but the rule itself could never be disputed or revised, right? It’s a necessary condition for a system of law.

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            • It would be my position that the rule should not have any limits. In my view, once there’s been a 4th Amendment violation found, even if it is a mere “technical” violation, any evidence even remotely attributable to that violation should be automatically excluded, no matter how guilty the accused or serious the crime.

              Thought I’m not sure if that gets at your point.

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              • But what would resolve a dispute about a fourth amendment violation? Retreat to the exclusionary rule? Doesn’t that beg the question regarding the limits of the fourth amendment of the fourth amendment in some sense?

                I don’t want to push too hard on this issue because you’re probably right (you know more about this stuff than I do :). But it seems to me that retreat to the exclusionary rule doesn’t resolve a dispute about the limits, or scope, of fourth amendment protections. Think of it this way: a term has a meaning as well as a set of things that fall under it. I’m wondering how a dispute about the types of activities that fall under the exclusionary rule can be resolved by retreat to the (definition of the) exclusionary rule.

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                • I don’t know how possible it is to take a broad yet formalistic view of whether a Fourth Amendment violation has occurred in the first place. I’m more assuming for my purposes here that a violation has been indisputably shown, but that it’s a fairly technical violation (eg, there is some sort of defect in the warrant’s language). To me, that procedural flaw should always prevent moving forward on the merits. Though this might not be quite what Burt had in mind when he referred to formalism.

                  Then again, it’s more or less in line with how Justice Scalia seems to define formalism. Since Scalia is about as high profile an advocate of formalism as you can find, it’s probably a useful definition:http://en.wikipedia.org/wiki/Legal_formalism

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                  • I was thinking of formalism as having a wider meaning than perhaps Burt intended, but I don’t think a narrower reading would make sense of what I’m arguing here. No, it don’t think that can be done, since I’m confused.

                    Your claim, and Burt’s down below, is that there are instances where a retreat to the formal is not only justified, but necessary. Taking your initial example, the claim is that if a violation of a fourth amendment protection has been shown to have occurred, retreating to the exclusionary rule to resolve the dispute (which isn’t about the scope of fourth amendment protections!) is appropriate. My argument was that there is a case where retreat to the exclusionary rule is question begging, for example, if the dispute is over the limits or scope of fourth amendment protections. But that’s a different dispute than you’re talking about, and would require (or not) a different type of retreat.

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        • Perhaps another example would be the Confrontation Clause. Maybe the Fifth and Sixth Amendments in their guarantee of jury trials. Or the mechanics of a bill passing out of Congress or the limits of the Supreme Court’s original jurisdiction.

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  3. the problem is that it willfully and blindly chose to ignore that the very laws it refused to overturn were an attempt to make the social inferiority of blacks permanent, an attempt to prevent the type of social change necessary for blacks to achieve social equality.*

    This, and your footnote, are very precise and correct, I think.

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  4. Very, very good stuff.

    If I may add just a little bit: One of the reasons we had to go through the national shame of Plessy was the failure of the Supreme Court to do its job the first time around, in the immediate aftermath of the Civil War. Much more than the Equal Protection Clause, the Privileges or Immunities Clause was the line in of the Fourteenth Amendment that was intended to prevent discrimination in public life and the emergence of a second-class citizenship for the former slaves and their descendants.

    The Supreme Court shirked its responsibilities on that one starting with the Slaughterhouse Cases in 1873. Although the facts of that (combined) case didn’t have anything to do with race, the Court knew very well that ruling the other way would mean that future race-based claims under P&I would be even stronger in their justifications than just some stupid city meatpacking monopoly thing. So they decided in a way that left P&I more or less a dead letter. And we had to wait decades for a court bold enough both to go after segregation in a practical way and to craft a legal justification for doing it under Equal Protection, which historically wasn’t quite intended to work this way.

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  5. Social change leads to political change far more readily than political change leads to social change. Social change comes from making sure others care just a little bit more about how things affect you, and then making sure others know when and how things affect you. It comes from participating as fully in society as possible, not by trying to create separate societies of those who are and are not approved.

    This strikes me as three extremely meaningful sentences.

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    • I thought so as well. Like, the best part of the essay. But they strike me as closely aligned with a liberal view, so I didn’t want to make a big deal out them by writing something like you wrote. I wonder: how would a conservative respond to these sentences?

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