Sunday, April 19, 2015

Confederate "Heritage" Month, April 19: a sit-in case and fatuous but sadly durable arguments for segregation

In a column of 09/30/1963, "Judicial Sustenance for the Southern Racist," I.F. Stone commented on the landmark civil rights case Bell v. Maryland. His column is included in the collection In a Time of Torment (1967).

Kali Borkoski summarizes the case in Bell v. Maryland: Kenneth Mack challenges three common views SCOTUSblog 10/26/2013:

In 1960, when Bell was sixteen, he and eleven other African-American high school students participated in a sit-in at Hooper’s Restaurant in Baltimore. When they arrived, the hostess apologized that the establishment “hadn’t integrated yet,” and she asked them to leave. After they refused, the restaurant had them arrested for trespassing. Three years later, the case had made it way to the Supreme Court, which vacated the judgment against the students and remanded the case for further consideration in light of the “public accommodation laws” that Maryland had passed since the students’ arrest. Those laws made it illegal for privately owned establishments to discriminate on the basis of race. The state’s highest court, the Maryland Court of Appeals, eventually reversed the students’ convictions. After attending college and Harvard Law School (where his case was on on the syllabus), Bell went on to serve on that very same court alongside his defense lawyer, the prosecutor who tried him, and several judges who were involved in his case.
The title of Stone's column may seem incongruous for a comment on a case which now looks like it had a Happy Ending.

But what Stone particularly criticizes is the dissent written by Justice Hugo Black and joined by Justices John Harlan II and Byron White. Black had established a reputation as very liberal Justice, despite his one-time membership in the Alabama Ku Klux Klan before he was appointed to the Court. Stone worried about "the bigots who will now say, 'Why even Black....'." Or, in our present version, even-the-liberal-Hugo-Black ...

Stone writes, "The whole emotional coloration of the Black dissent is on the side of the aggrieved white Southerner, not his Negro victim."

The same observation could be made today about almost any commentary today on a race-related issue on FOX News or a Rush Limbaugh broadcast or any of its many cousins on Republican hate radio.

Stone explains that the Court sent the case back to the State of Maryland and declined to decide the constitutionality of the state statute that was involved. Stone agreed that the latter was appropriate judicial restraint in that particular moment "when Congress is in the final stage of passing the first public accommodations law since the Civil Rights Act of 1875." A constitutional ruling on the Maryland statute might have complicated the high-priority political decision in which Congress was involved at the moment.

After several paragraphs recognizing the reasons for restraint, Black proceeds in the dissent to comment on the constitutionality of the statute that allowed the police to arrest the black students for trespassing for refusing to leave a segregated public restaurant. Black was willing to accept the fatuous argument of the segregationists in this case that private property rights overruled the freedom of the black students to be served in a public restaurant:

... it is hard to take seriously a contention that petitioners were not fully aware, before they ever entered the restaurant, that it was the restaurant owner's firmly established policy and practice not to serve Negroes. The whole purpose of the "sit-in" was to protest that policy. (2) Be that as it may, the Court of Appeals of Maryland held that "the statutory references to 'entry upon or crossing over,' cover the case of remaining upon land after notice to leave," and the trial court found, with very strong evidentiary support, that after unequivocal notice to petitioners that they would not be seated or served they "persisted in their demands and, brushing by the hostess, took seats at various tables on the main floor and at the counter in the basement." We are unable to say that holding this conduct barred by the Maryland statute was an unreasonable interpretation of the statute or one which could have deceived or even surprised petitioners or others who wanted to understand and obey it. It would certainly be stretching the rule against ambiguous statutes very far indeed to hold that the statutory language misled these petitioners as to the Act's meaning, in the face of evidence showing a prior series of demonstrations by Negroes, including some of petitioners, and in view of the fact that the group which included petitioners came prepared to picket Hooper and actually courted arrest, the better to protest his refusal to serve colored people.
Short version: they knew the restaurant was segregated, so they should have just stayed out and not worried about this nonsense of equal rights and all!

Black's dissent also sidesteps the role of the State of Maryland in enforcing segregation in order to sidestep the 14th Amendment's requirement for equal protection of the laws:

The Amendment does not forbid a State to prosecute for crimes committed against a person or his property, however prejudiced or narrow the victim's views may be. Nor can whatever prejudice and bigotry the victim of a crime may have be automatically attributed to the State that prosecutes. Such a doctrine would not only be based on a fiction; it would also severely handicap a State's efforts to maintain a peaceful and orderly society. Our society has put its trust in a system of criminal laws to punish lawless conduct. To avert personal feuds and violent brawls it has led its people to believe and expect that wrongs against them will be vindicated in the courts. Instead of attempting to take the law into their own hands, people have been taught to call for police protection to protect their rights wherever possible. It would betray our whole plan for a tranquil and orderly society to say that a citizen, because of his personal prejudices, habits, attitudes, or beliefs, is cast outside the law's protection and cannot call for the aid of officers sworn to uphold the law and preserve the peace. The worst citizen no less than the best is entitled to equal protection of the laws of his State and of his Nation. None of our past cases justifies reading the Fourteenth Amendment in a way that might well penalize citizens who are law-abiding enough to call upon the law and its officers for protection instead of using their own physical strength or dangerous weapons to preserve their rights. [my emphasis]
This is a remarkably blunt defense of the segregationist view in which the world is seen exclusively from what Chauncey DeVega calls the White Gaze. This comment of his could have been directed against Black's dissent (The White Gaze Kills (Again) ... WARN 11/07/2013):

Full citizenship involves the presumption that one belongs to a political community. By virtue of that fact, citizenship also means that a person is entitled to safety and security in their person without qualification, exception, or justification. Full citizenship is not contingent or precarious.

African-Americans are not allowed such protections by the White Gaze. They are viewed as guilty until proven innocent, a criminal Other who is a priori categorized as “suspicious” and “dangerous”. While formal racism and Jim and Jane Crow were shattered and defeated by the Black Freedom Struggle, this ugly cloud continues to hover over the United States, some 400 years after the first black slaves were brought to the country.

Consequently, black Americans are not really allowed to seek help from white people; the Parable of the Good Samaritan does not apply to people of color as viewed through the twin lenses of Whiteness and the White Gaze. The black and brown Other is not allowed the luxury and privilege of knowing that if they seek help when in distress—either from the police, or white folks, more generally—that such pleadings and requests will be met with a “How can I help you? Are you in trouble?” [my emphasis]

The white authorities in segregated states could be counted on to enforced the unconstitutional segregation laws and practices. Black citizens could not count on the law to enforce their equal rights as citizens even on something as simple as restaurant service. Black, Harlan and White knew this, of course. But the White Gaze discounted it all to insignificance in this dissent.

Stone in 1964 also observed:

The 13th, 14th and 15th Amendments were intended to free the Negro from slavery and give him first class citizenship. The Southern states sought to circumvent them first by the Black Codes and then by Jim Crowism. In this they were aided by Supreme Court decisions which read the 14th amendment so narrowly as to take the heart out of the first Civil Rights Act. Their spirit lives on in the Black-Harlan-White dissent. But the records of these cases is full of testimony that restaurant and hotel owners refuse service to Negroes not because of their own prejudices but because they fear those "local customs" the Southern states foster. [my emphasis]
Black also states in the dissent, "But the Fourteenth Amendment of itself does not compel either a black man or a white man running his own private business to trade with anyone else against his will." Stone rightly notes of that comment:

It is the standard Southern answer to say, as the dissenters do, that "the 14th Amendment of itself does not compel either a black man or a white man running his own private business to trade with anyone against his will." This is a tissue of invidious misstatement. The 14th Amendment can and should be read as part of the public policy of this country, which is against racial discrimination. What a man does in his "private business" may be his own affair. But where he has a business which opens its doors to all comers then he cannot deny entrance or service to some solely because of their race. When he does so, he cannot under the 14th Amendment have state support in the shape of police and judicial action to enforce the discrimination via "criminal trespass." Nor can states which have done all they could to maintain the Negro in subjection then come into court and claim that they are merely enforcing property rights. This was the argument of the Solicitor General and of counsel for the sit-in demonstrators. [my emphasis]
The segregationist subculture never gave up some ideas and arguments and excuses. And it seems now with every day that passes they become more deeply ingrained as the positions of today's Republican Party.

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