How Thurgood Marshall Beat David Allan Coe

“We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

–Plessy v. Ferguson, 163 U.S. 537 (1896)

“To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

–Brown v. Board of Education, 347 U.S. 483 (1953)

Humans are strange creatures.  We’re brilliant problem-solvers, capable of extraordinarily high levels of reasoning.  But that reasoning is not all that makes us human; our humanity is characterized as well by the fact that we are each motivated by a complex range of emotions, feelings, and values.  Some of these feelings and values we seem to have collectively agreed are “good” motives, whilst others are indisputably “bad.” Indeed, where an act is motivated some of these “bad” values, we’ll even go so far as to conclude that the action is irrational.  An act out of anger, or hate, or just visceral discomfort is generally an act of which one is to be ashamed. An act of benevolence, or love, or pure joy is generally an act of which one is to be proud.

Unfortunately, that high capacity for reasoning means we’re also really good at rationalizing, to the point that it’s remarkably easy to deceive ourselves as to our own actual motives.  We may suddenly, for instance, place concerns about process over concerns about effects – or, as the case may be, vice versa, telling ourselves all the while that these concerns are wholly consistent with views on other matters in which we’ve taken the opposite position.  We may also give ourselves insufficient credit, claiming to be at the mercy of our culture rather than active participants therein.

The difference between the two quotes I refer to above, indeed the source of the difference between Plessy and Brown more generally is an emotional difference, not to mention a cultural difference.  It is a difference borne out of actually giving a crap about how another group is affected by something.  It is not a difference of disproving notions of racial superiority, nor even one of consciously rejecting racism.

————————————–

In 1982, country legend David Allan Coe made an underground release of an album appropriately titled “Underground Album,” featuring a litany of purportedly comedic songs feeding on racist and misogynistic prejudices, including the unambiguously titled “Nigger Fucker.”  Twenty years later, Coe prickled defensively when a newspaper article accused the album of being racist, with Coe suggesting it was merely comedic, and saying “My drummer, Kerry Brown, is black.” No doubt Coe actually believed this, and no doubt he really was offended by the accusation of racism.

Senior year of college, a friend of mine found some of the tracks from the Underground Album.  He found the album to indeed be quite comedic, though surely he thought he was being ironic in thinking so.  I’m ashamed to admit that I did as well, as did several other friends of mine, ranging from die-hard conservatives to raging left-wing liberals.  None of us thought we were racist, nor that there was anything racist about our enjoyment of the Underground Album.  Had anyone suggested as much, we would have muttered something about political correctness and responded much as Coe would do when the accusation was laid at him a little while later.

Another friend of mine at the time was bi-racial, as well as an unabashed liberal.  Despite the fact that many of us, including me at the time, were proudly conservative, we had all come to hold this friend in extremely high regard, both on a personal level, but also on a political level – never did he shout at us or caricature our positions or throw out any accusations of ulterior motives.  I can’t say that the reverse was true.  I’m quite certain that at the time, I at least also made an effort to avoid discussions about race with him.

Shortly after graduation, we all got together for a cookout.  Someone (not me) decided it would be a good time to play some tracks from the Underground Album.  This friend, who I do not believe had heard these tracks before, upon hearing them, proceeded to do something remarkable for its simplicity.  He turned to us, said merely “I’m not comfortable listening to this,” and walked over to the stereo and changed the music.  He said nothing else about it – his message was sent, and I’m quite certain none of us pushed back on what he did.

It took a few more years before my views on racial politics would really start to evolve, and I still surely hold at least some of the same views as I did then, though by no means close to all.  But that style of racial “humor” stopped being funny almost immediately.  In retrospect, the manner in which I discussed racial issues also started to change fairly quickly, as did my willingness to discuss them and to listen carefully to people taking different positions than my own on racial issues.

———–

Remarkably, Plessy in some respect claims to reject the notion that one race is inherently superior to another, claiming that any interpretation to that effect is “solely because the colored race chooses to put that construction upon it,” and that segregation laws did nothing other than acknowledge a cultural reality (that the majority of the politically dominant white race viewed blacks as inferior).  Insofar as the Plessy court claimed that its decisions lacked the power to change the cultural view that blacks were inferior, it was even correct; the problem is that it willfully and blindly chose to ignore that the very laws it refused to overturn were an attempt to make the social inferiority of blacks permanent, an attempt to prevent the type of social change necessary for blacks to achieve social equality.*

In Brown, the Court in part distinguishes itself from Plessy by writing that “Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences, as well as in the business and professional world.”  In his opening speech to the other justices, Chief Justice Warren also purportedly emphasized the intellect and talent of the NAACP lawyer, Thurgood Marshall, at oral argument, suggesting that this proved the acknowledged premise underlying segregation laws was a load of hooey.   The Brown decision of course goes on to place great emphasis on studies showing the harm segregation caused to black Americans, specifically overruling Plessy to the extent that Plessy found segregation did no harm to black Americans.

The same conflicting principles were at issue in both cases, and to the same extent: states’ rights versus equal protection.  The same groups of people benefitted from, and were hurt by, preferring one principle over the other in each case.

Nowhere in Brown does the Court disown or even really address one of Plessy’s core and- to the modern eye- most appalling claims: that legal distinctions between the races are entirely inherently rational, and just an acknowledgement of social realities.   Nowhere does Brown attack the bigotry of segregation, nor the outrageousness thereof.  Indeed, it does not even purport to say that segregation is premised on hatred or any other ill motive, nor does it even decry the virtues of color-blindness.

To the extent Brown has been criticized over the years, that criticism has primarily focused on its purported basis in social science rather than law and precedent to overrule Plessy.  In this criticism, Brown is “results-oriented judicial activism.”

What is ignored in this criticism is that Plessy‘s 14th Amendment analysis was based on even less law.   Plessy acknowledges that the 14th Amendment requires that “every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class,” yet asserts, without any apparent basis, that any conclusion that segregation was “for the annoyance or oppression of a particular class” is “solely because the colored race chooses to put that construction upon it.”  By Brown, enough people gave enough of a crap about black people to validate that segregation actually caused black people harm, even if they were still been unwilling to give enough of a crap to validate the harm to black people caused by private activities.  The harm to black people mattered, even if only enough to win this particular case.

All of the excuses and obfuscations, the attempts to make the legal debate over segregation about deepseated -and otherwise legitimate- differences in views on Constitutional interpretation fell by the wayside.  If Brown is criticized for failing to attempt to address disputes over Constitutional interpretation, its unanimity should demonstrate that this purported “failure” is because disputes over Constitutional interpretation were indisputably irrelevant, or at least unnecessary, to resolution of the question once one gave a modicum of a crap about harm to black people.

———————-

Social change leads to political change far more readily than political change leads to social change.  Social change comes from making sure others care just a little bit more about how things affect you, and then making sure others know when and how things affect you.  It comes from participating as fully in society as possible, not by trying to create separate societies of those who are and are not approved.  Stigma is useful when you’ve already won the battle, a great way of mopping up the last remnants of resistance; it is not terribly useful when those you seek to stigmatize are as or more numerous than you, no matter how deserving of stigma they may be.

*In this regard, segregation laws were unusually effective at putting the brakes on social change, deeply restricting the ability of blacks to interact with whites in a manner that would allow the formation of even superficial relationships capable of leading to white people giving a modicum of a crap about black people.