Part 14 of the series, "The Structure of Lies in Conservative Jurisprudence"
In my last diary, I looked at the lie at the heart of one of the worst conservative Supreme Court decisions of the 19th Century——the lie that blacks at the time the Constitution was written were considered “ so far inferior that they had no rights which the white man was bound to respect”. And I promised that I wanted to “take note of two staggering classic examples of conservative lies in 19th Century jurisprudence”. [Emphasis added.] Those of you who can count (sorry trolls!) know what's coming next: Plessy v. Ferguson.
The lie involved in Plessy was not a lie about history, it was more of a modern, multi-faceted Rush/O'Reilly/Fox News-style lie. First, there this:
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.
So, segregation only hurts blacks because they think it does! (Which, I suppose, proves once again what inferior intellects they have, right?)
Followed immediately by this classic example of Scalia-think:
The argument necessarily assumes that if, as has been more than once the case and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption.
Ah, yes, because, of course, a black legislative majority, representing a nearly propertyless black electorate is the precise mirror image of a white legislative majority representing the white propertied class! Why are the rest of us not brilliant enough to see this?
This is, of course, an inevitable consequence of “textualism”—a studied disregard of the actual realworld meaning, purpose and consequence of laws.
These are hardly the only lies in Plessy v. Ferguson. But my point here is not to flood the zone. However, I can't ignore this final one:
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
The lie in the first sentence here is the exact opposite of the first lie cited above. Not only is the inferiority not in black's heads after all—a matter of mere whimsy—it is so substantial and deep-rooted that nothing can be done about it (although, conveniently enough, it can be made worse!) The last two sentences are examples of mind-boggling mendacity, cloaked in formalist language. Rather than address the world as it actually was before them, these two sentences wander off into an ethereal imaginary realm, in which the justices pretend to be profound philosophers, pronouncing Platonic truths.
But, of course, it's all just balderdash. Neither civil nor political rights of the races were equal. That was rather the whole point of passing the 13th, 14th and 15th Amendments in the first place. The question at hand was whether those Amendments would be enforced, and the only ones deciding that were—Surprise! Surprise!—members of one race, not both.
The neat philosophical division into civil, political and social realms (with rights associated only with the first two) is intended to convey a sense of utmost intellectual seriousness. Instead, with the hindsight of history, what it actually represents is nothing more than a mindgame version of three card monte.