Carl’s post below is, of course, on the money. Here’s CJ’s addition to it in the thread:

As someone else who argues for Founderism in academic circles, I agree with what you say here. The reality of the evil of segregation means three things for me, practically:
1) I try not to get to cute with constitutional arguments about Brown v. Board, since the ruling (though poorly argued) was absolutely necessary. Bussing is a whole different matter.
2) I will argue against Conservative who disagrees the 1964 Civil Rights act.
3) I stress how terrible it was for our history that the 14th Amendment was effectively read out of the Constitution by the Supreme Court in Plessy v. Ferguson and even more blatantly in the 1883 “Civil Rights Cases”

These are all good points, but it’s easy to add:

4. The Court’s argument in BROWN can be excused because on the very same day in BOLLING v. SHARPE it showed it knew better. The Court’s “substantive due process” argument there resonates with what Harlan said in his great dissents about the 13th Amendment—by declaring universal civil liberty—being sufficient alone to strike down the arbitary restriction of movement or liberty (which is undeniably a residual badge of slavery) commanded by any segregation law.

5. BROWN II is another matter. There “equity” is used to justify not giving the remedy to the particular individuals whose rights were violated but to members of their race at some indeterminate point in the future. Equity opposes itself to the proper rule of law. In so doing, BROWN II is racist.

6. The misuse of “equity” in the other direction in SWANN is the reason for the Court giving the courts the virtually unlimited power to impose bizarre remedies to achieve maximum feasible desegration—against both the rule of law and BROWN actually says. The evil of busing was that it was court-ordered. It too is racist in identifying the quality of education with the percentage of white kids in the classroom. Busing as a voluntary act of remediation by a local school board is less obviously unconstitutional and certainly less outrageous.

7. Conservatives should be all about affirming the Civil Rights Movement as a noble and necessary consequence of the Court not imposing a timetable in BROWN II. The goal of “direct action” was to arouse the constitutional conscience of those whom MLK called “white moderates”— those who knew what justice was but preferred to indefinitely delay its implementation in the name of order and security. The fact that consciences really were so aroused is a vindication of American color-blind American constitutionalism.

8. Segregation was worse than slavery in many ways (see Carl’s post). It was far less excused by necessity. The white moderates in the South abdicated their responsibility.

9. In the same vein, the Court’s opinion in PLESSY is far worse than the Court’s opinion in DRED SCOTT. In DRED SCOTT, the Court claimed merely to defer to the founding opinion about the status of those brought over from Africa as slaves. It said nothing about the nature of the black race or about the natural status of the relations between the races. In PLESSY, the Court spoke of nature and affirmed scientific racism. It said: “Legislation is powerless to eradicate racial instincts.” But the truth—the truth even affirmed by the Court in DRED SCOTT— is that the herding together of the races in America was caused by the law, by a basically arbitrary political decision.

10. Conservatives whine too much about AFFIRMATIVE ACTION. The truth is that the constitutionality of a race-conscious scheme chosen by a legilature narrowly tailored to remedy the effects of past discrimination is a close call. Reasonable people can disagree on whether any affirmative action scheme— or at least one that uses race as one factor among many to discriminate among individuals—is constitutional. My own view is that affirmative action is almost always bad public policy, but reasonable people disagree on that too. It’s tough and maybe impossible to tell well-intentioned people that they can’t notice race at all.

11. But conservatives should raise heck on using EDUCATIONAL DIVERSITY—as opposed to EQUALITY—as an argument for affirmative action.

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Articles by Peter Lawler

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