I just listened to a recent Diane Rehm show, Two Views On The Jim Crow South And Its Legacy, this morning. She interviews Charles Dew and Isabel Wilkerson. From Professor Dew, I got some answers to questions I ask myself every time I see an old picture of a lynching. From Professor Wilkerson, I got angry. Not about what she said, but how her discussion recalled for me our 14th Amendment doctrine and its modern colorblind interpretation. The moral equivalence of, say, Blacks growing up under Jim Crow and whites applying to college, escapes me. If that's what the 14th Amendment really means, I am fully prepared to give it back.
Professor Dew acknowledges that he was a product of his society, a society where "[w]hite supremacy reigned." He grew up with these norms and ideologies of white superiority and black inferiority all around him, and acquired them himself, by "osmosis. A lot of it, you didn't have to be told. You just looked as a child growing up." One story in particular is quite powerful. He describes a conversation with Illinois Browning Culver, to whom he dedicates the book, and who served his family for decades. She asks him, "Charles, why do the grownups put so much hate in the children." This was the crux of white supremacy; "racism, that white supremacy, was passed from one generation to the next among white Southerners with all the certainty of a genetic trait."
This interview, and particularly this osmosis that Professor Dew so poignantly describes, brought to mind those horrible pictures of lynching we have all seen. They always make me wonder: how did the descendants of the people in the picture feel about what their ancestors did? How could a person witness such raw violence and brutality while at the same time smile for the camera? How does a society socialize such a person? And more pertinently, can we overcome such raw prejudice?
Professor Dew overcame this prejudice. And he did it only after he went to college and began to question his upbringing. It wasn't easy, I am sure, but it happened. And that of itself is remarkable. Facts, history, even reason, can be powerful things.
Unless you are on the US Supreme Court writing and thinking about race, unfortunately.
This is where something that Professor Wilkerson said angered me. Here's the full quote:
Well, what [Professor Dew is] describing is the other side of what was ultimately a caste system. You know, we don't think of caste in our country. We think of, perhaps, India or Victorian England. But a caste system is really an artificial hierarchy in which, in this case in the South, everything that you could and could not do was based upon what you looked like. And in order to justify the inequality that was built into the system, it meant that there had to be a reinforcement of the presumed superiority of one group over the other.
Think about that for a second. The constitutional problem of Jim Crow only makes sense when viewed as a caste system, as an "artificial hierarchy." The first Justice Harlan well understood this. His famous passage in his Plessy dissent reads in full:
The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. (emphasis mine)
To quote Harlan's colorblind sentence is almost dishonest without the rest of the passage. If you have time, go read through the Court's modern 14th Amendment jurisprudence. Or take my word for it: you will not find the full passage. Harlan's argument gets in the way of their story.
Think of Shelby County, where the Court eviscerated the Voting Rights Act on a newfound theory of state equality. Facts did not matter there either, nor did history or long-standing doctrine. The conservative justices were not about to let such idle things get in the way of the result they so desperately wanted. Same with City of Richmond v. Croson, or Bakke, or Ricci, or ...
This is what makes the recent Fisher case so refreshing. Same with the spate of voter suppression cases across the Circuits. Facts, reason, and history won out.
I am almost speechless.