In comments to djw’s post about law and social change, Russell Arben Fox argues:
I just wanted to get across the idea that the process of democratic deliberation regarding same-sex marriage is at a highly fluid point right now; has been for 15 years, at least, and probably will continue to be (I think rightly should continue to be) for years to come. As such, it’s not as though our polity, I think, is currently at a point where the harms (which I think exist, just not quite on a constitutionally valid level!) of exclusively recognizing heterosexual marriages are part and parcel of an entrenched, debilitating, hate-filled social life, which of course is what Plessy v. Ferguson had given us.
T. Paine responds:
I suspect you’re confusing cause and effect when you say that Plessy “gave” the US an “entrenched, debilitating, hate-filled social life.” I’d argue that the apartheid-like laws and judicial decisions creating de jure racist separation and domination grew out of that “hate-filled social life,” and not the other way around. There are very few times that the Court leads public opinion (Brown and Loving being inspiring counter-examples, AFAIK).
T. Paine is, I think, clearly correct here. Plessy was essentially a symbolic decision that reflected and already-entrenched consensus; it did almost nothing to cause it. I urge anyone interested in the question to read Klarman’s book on the subject, but to summarize:
- Segregation was already very well-entrenched by 1896. Reconstruction had been ended by the Tilden/Hayes deal, and African-Americans had already been disenfranchised everywhere in the confederate states by 1895.
- Not only did the Supreme Court’s decision merely reflect well-established norms, the segregation laws themselves largely reflected already-existing practice and were largely symbolic. Segregation was established and enforced primary by (effectively state-sanctioned) private violence and economic coercion; segregation would have persisted even had it not been required by law.
- To get a sense of how little the Supreme Court would have accomplished by deciding Plessy correctly, one need only look at the areas — jury selection and voting — where the Court even in its worst periods struck down explicitly racist state practices. These decisions were entirely ineffectual because states were able to accomplish the same ends under laws that were formally race-neutral.
- And, of course, there was no chance in 1896 that the Court would decide Plessy correctly; the outcome was overdetermined. The Supreme Court reflects the views of national political elites, and national political elites in the Gilded Age had absolutely no interest in enforcing the Civil War Amendments for any purpose other than nullifying economic regulations. (Even Harlan’s dissent was explicitly committed to white supremacy.) Consider, for example, that Congress was not merely authorized but required under Section 2 of the Fourteenth Amendment to respond to disenfranchisement by reducing the representation of the disenfranchising states. Needless to say, this didn’t happen. The Supreme Court in Plessy was reflecting the views of national political elites, not creating them.
- Another potentially bad effect of Plessy could have been creating a bad precedent that made the Supreme Court slower to respond to increasing support for civil rights. The problem is that the opposite was true; the Supreme Court was well ahead of the curve compared to the rest of the national government in terms of requiring the formal desegregation of both higher and lower levels of education.
Plessy didn’t create a climate of hate; it reflected one.
And as I’ve argued before, the same is true of the other great symbol of 19th Century Supreme Court evil: Dred Scott. Taney’s views were those of an utterly mainstream Jacksonian Democrat; it didn’t prevent Congress from passing any law there was any chance Congress was going to pass, as the fact that both Buchanan and the Democratic leadership in Congress urged the Supreme Court to rule the way they did reflects; and when Lincoln took office he just ignored the decision, which was overruled by two constitutional amendments less than a decade after he took office. Had the Supreme Court refused the urging of elected political elites to take and decide the case broadly the Democratic coalition would have fractured over Lecompton anyway, and had the Supreme Court decided the case in a morally just manner the result would have been secession, only with a Doughface numbnuts in the White House instead of Lincoln. Just as the positive effects of Brown tend to be overstated, the Supreme Court tends to get blamed for causing deep-rooted political trends it merely reflects. And I would say Brown mattered substantially more than Plessy or Dred Scott.
…rea in comments:
I’d be curious to see an example of Lincoln ignoring the decision. I’d argue that, on the contrary, he carefully complied with it, although he disagreed with it. The Emancipation Proclamation in particualr was carefully crafted to use the president’s war powers to get around Dred Scott.
Not only did Lincoln’s attorney general grant citizenship status to an African-American, in 1862 he signed legislation banning slavery in the federal territories; I’m not sure how you can repudiate Dred Scott more directly than that. Nor do I understand how the Emancipation Proclamation was altered to accommodate Dred Scott. The EP certainly reflected Lincoln’s view that the federal government could not interfere with slavery in the states that were still in the union, but this has nothing to do with Dred Scott, which was about the federal power to limit slavery in the territories. Moderate Republicans like Lincoln didn’t dispute that the federal government lacked the authority to ban slavery in the states.