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Thread: Justice Jackson’s ‘Race Conscious’ History

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    Justice Jackson’s ‘Race Conscious’ History

    Free reads used up, I can't read much of Justice Jackson’s ‘Race Conscious’ History. It's asks and answers "Is the Constitution colorblind? Her reading disagrees with Justice Harlan’s famous dissent in Plessy v. Ferguson." IOW, for Jackson, the Constitution is not colorblind.

    I agree with her that amendments like the 13th and 14th were written with color-conscious intent. Indeed, to correct a wrong and acknowledge equal rights before the law to all. But that in no way implies nor does the text of those amendments even suggest that future law must aim to produce equity. That flies in the face of Justice Harlan’s famous dissent in Plessy v. Ferguson.

    PLESSY v. FERGUSON

    ...Mr. Justice HARLAN dissenting.

    ...Thus, the state regulates the use of a public highway by citizens of the United States solely upon the basis of race.

    However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the constitution of the United States.

    ...In respect of civil r rights, common to all citizens, 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 such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.

    The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the fourteenth amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,' and that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the fifteenth amendment that 'the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.'

    ...The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution. It cannot be justified upon any legal grounds.

    ...I am of opinion that the state of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that state, and hostile to both the spirit and letter of the constitution of the United States. If laws of like character should be enacted in the several states of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law, would, it is true, have disappeared from our country; but there would remain a power in the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the 'People of the United States,' for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guaranty given by the constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.

    ...
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    Quote Originally Posted by Chris View Post
    Free reads used up, I can't read much of Justice Jackson’s ‘Race Conscious’ History. It's asks and answers "Is the Constitution colorblind? Her reading disagrees with Justice Harlan’s famous dissent in Plessy v. Ferguson." IOW, for Jackson, the Constitution is not colorblind.

    I agree with her that amendments like the 13th and 14th were written with color-conscious intent. Indeed, to correct a wrong and acknowledge equal rights before the law to all. But that in no way implies nor does the text of those amendments even suggest that future law must aim to produce equity. That flies in the face of Justice Harlan’s famous dissent in Plessy v. Ferguson.

    PLESSY v. FERGUSON
    Excellent point @Chris . That point of view must be what is behind government legislated racism. The Courts should not allow rules that allow companies, colleges and government offices to discriminate based upon race and gender . Much less force them to. I have never understood these practices.
    I've seen real world effects which include resentment, under qualification and serious resentment from multiple people who were not hired due to AA , one of which may be correct. Doubts cast upon the black students in college whom some feel "shouldn't be there.
    In fact if you wanted create policy to harm race relations..........

    I would love to see these laws brought up to this textualist court

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    Quote Originally Posted by donttread View Post
    Excellent point @Chris . That point of view must be what is behind government legislated racism. The Courts should not allow rules that allow companies, colleges and government offices to discriminate based upon race and gender . Much less force them to. I have never understood these practices.
    I've seen real world effects which include resentment, under qualification and serious resentment from multiple people who were not hired due to AA , one of which may be correct. Doubts cast upon the black students in college whom some feel "shouldn't be there.
    In fact if you wanted create policy to harm race relations..........

    I would love to see these laws brought up to this textualist court

    Exactly right, should not allow race-based discrimination, nor enforce it.

    (Edited, added "not". )
    Last edited by Chris; 10-08-2022 at 01:17 PM.
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    Quote Originally Posted by Chris View Post
    Exactly right, should allow race-based discrimination, nor enforce it.
    Do you think AA would hold up against this Court and it's textualist/literialist?

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    Quote Originally Posted by donttread View Post
    Do you think AA would hold up against this Court and it's textualist/literialist?
    No, AA should not hold up. I believe Oct. 31 is set for arguments for college affirmative action cases.
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    The 13th and 14th Amendments were about re-establishing Equal Protection under the Law that was lacking when Slavery and other unjust laws were tolerated. It has nothing to do with Equity or Government creating outcomes for any group defined by race or anything else.
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    Quote Originally Posted by Chris View Post
    No, AA should not hold up. I believe Oct. 31 is set for arguments for college affirmative action cases.
    Awesome

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    Quote Originally Posted by donttread View Post
    Do you think AA would hold up against this Court and it's textualist/literialist?
    A prior SCOTUS has already questioned AA and started to limit it. They also said that AA doesn't get to go on forever. That was before the conservative court.
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    The Supreme Court did say that affirmative action had a time limit, among other limits. I would think that the time is now it will be interesting to see what this court says, and what the dissent says.
    Any time you give a man something he doesn't earn, you cheapen him. Our kids earn what they get, and that includes respect. -- Woody Hayes​

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