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by
Elie Mystal
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July 18 - August 6, 2022
marked the last time white lawmakers would give a shit about Black people for nearly a hundred years.
By 1883, the Supreme Court overturned much of the 1875 Civil Rights Act, including all of the protections against discrimination in public accommodations and transportation.
the Jim Crow era was off and running.
It all came to a head in 1892. That’s when Homer Plessy bought a first-class ticket on the East Louisiana Railway
Plessy had been approached by civil rights advocates specifically to challenge Louisiana’s Separate Car Act of 1890. It was a classic Jim Crow law:
to argue that legislating different treatment based not on the “color” of one’s skin but on their racial classification was valid—would be to admit that the Fourteenth Amendment wasn’t worth the parchment it was written on. And the Supreme Court did just that.
The Court here interprets the Reconstruction Amendments to protect only political rights.
The core logic of Plessy is that laws that are facially race-neutral are constitutional, even if they have a discriminatory effect.
The “equality” bit was always just a legal fiction: when white people see actual equality, they turn angry or violent.
Twenty-first-century white people got so pissed of that a Black person got an equal employment opportunity as president that they turned to a vicious, bigoted, stupid person to save them, and stuck with him even as he helped get everybody sick.
Plessy was decided in 1896. Its logic of “separate but equal” was used as the legal justification for the entire Jim Crow era.
only the “separate but equal” logic of Plessy has been rejected by conservatives. But the part where racists think the Fourteenth Amendment does not protect social rights? Conservative assholes still believe that.
Clearly, the Fourteenth Amendment means more and does more than what the white people living at the time it was adopted thought it could mean and do.
A theory of constitutional interpretation and justice, supported by originalists, that requires them to look to and value the intents and purposes of unabashed, unrepentant white supremacists is obviously, irreparably racist.
the original intent of the Fourteenth Amendment by the white supremacists who passed it was to confer a bare minimum of political and civil rights to Black people, but none of the social rights.
social equality is what Loving is all about.
Despite the best efforts of the ruling whites, interracial unions continued in spite of the laws, and entire communities that were either comprised of or tolerant of mixed-race families developed.
Chief Justice Earl Warren
this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.”
The right to participate in society with equality and dignity is also protected by the Fourteenth Amendment, and that is what Loving stands for.
There is no originalist understanding of the Fourteenth Amendment that comports with the Supreme Court’s unanimous opinion in Loving.
Loving and Lawrence are functionally the same case; they are logical twins. The operative difference between Loving being decided 9–0 and Lawrence being decided 6–3 is that conservatives have successfully adopted a new language to couch their bigotry. That language is now called originalism.
The current Supreme Court has more in common with the court in Plessy than the court in Loving. The only real difference between conservatives in 1896 and the ones we have today is that the Federalist Society teaches them how to edit out their bigoted slurs.
One way to think about our equal protection laws are as a long-running argument about what kinds of discrimination our society will allow, and who we can discriminate against.
I’d like to give you a clean definition of what constitutes a suspect class, and, given the importance of that distinction in the law, you’d think there would be one. But there’s not. There’s no definition that everybody agrees to, and certainly no definition that survives whatever conservatives think to do to this area of the law next.
Lots of white people like to act like they are the “default” people in this country and, well, the law treats them as such.
I’d love to see a legal ruling that counts poor people as a suspect class.
the fact that the Supreme Court has any right at all to declare a legislative act unconstitutional is kinda made up.
Marbury v. Madison. In that case, Chief Justice John Marshall just announced that the Supreme Court could declare a law or order unconstitutional, even though that’s not technically written in the Constitution.
Courts are supposed to give what’s called “deference” to the elective bodies.
judges and courts are being subjectively outcome determinative all the time.
I can prove that.
Korematsu v. United States—
this jargon matters. It’s something that judges and justices can hide behind when issuing rulings that the public would otherwise recognize as facially bigoted.
Judges and justices can manipulate these terms to say, or not say, whatever they want, as their desired outcome requires.
a generation of sitcom dads has popularized the use of arbitrary power by beleaguered parents as a comedic art form, and I can play it that way for a laugh. But, I never want my kids to get comfortable acquiescing to arbitrary power from authority figures. That way lies middle management.
Arguably, substantive due process flows from the Fifth and Fourteenth Amendments, which both say that no person shall be deprived of “life, liberty, or property, without due process of law.”
substantive due process protects unenumerated rights.
Procedural due process concerns itself only with whether the process is fair according to its own rules.
Substantive due process demands actual fairness, not just technical fairness. Predictably, conservatives hate it.
In the future, I might claim an unenumerated right to have Geordi’s visor from Star Trek
“Where does it end?” asks the conservative jurist. What’s the point of winning the birth lottery if the government is just going to step in and level the playing field?
It’s a classic liberal mistake: conservatives used a tool for evil, so instead of using that same tool for good, let’s never use tools. Sometimes, I swear, it can seem like liberals spend all their time inventing ways to get their asses kicked.
conservatives, absolutely believe substantive due process exists; they just think the Fourteenth Amendment is hiding rights for businesses they think are people, instead of minorities they wish were not.
There’s no amendment saying “The right to privacy shall not be abridged.”
The white men who wrote the Constitution did not think women were people deserving of the same political, civil, and social rights as men.
Marital rape was an oxymoron until the 1970s, to give a sense of what is and is not textually protected in the Constitution.
despite hobbling the economic opportunities for women and mothers, the framers of the Constitution provided no social safety net whatsoever for widows and orphans.
The white men who founded this country were perfectly willing to let their own children, conceived in hate, be born into bondage.
white Americans were not demanding that their bastards join the clergy, as was common in Europe. Or the army, as was common in the ancient world. Or defend a seven-hundred-foot-tall ice wall from zombies, grumkins, and ice dragons.
