Monday, July 5

On Thurgood Marshall and Judicial Activism

Cenk responds to the GOP attack on Thurgood Marshall.

In the original Constitution black persons were considered and counted as "3/5ths of a person" for purposes of Congressional Representation and Taxes, so Slave States received lesser numbers in congress, but also lower taxes based on the number of slaves. The deal brokered between the North and South States helped establish the Union, but it did so with in an inherent poison pill in the mix.

There was also the Fugitive Slave Clause which required the Free States to enforce Slave Laws and recover and extradite escaped slaves back to their home states - which actually they refused to do until Congress passed the Fugitive Slave Act (1850) which in an attempt to stave off the Civil War made this recovery the duty of Federal Marshals.

In 1850 Congress passed the Fugitive Slave Law. Only John P. Hale, Charles Sumner, Salmon Chase and Benjamin Wade voted against the measure. The law stated that in future any federal marshal who did not arrest an alleged runaway slave could be fined $1,000. People suspected of being a runaway slave could be arrested without warrant and turned over to a claimant on nothing more than his sworn testimony of ownership. A suspected black slave could not ask for a jury trial nor testify on his or her behalf.

Any person aiding a runaway slave by providing shelter, food or any other form of assistance was liable to six months' imprisonment and a $1,000 fine. Those officers capturing a fugitive slave were entitled to a fee and this encouraged some officers to kidnap free Negroes and sell them to slave-owners.

Suspected Slave - not proven Slaves - SUSPECTED Slaves were not allowed a trial, which created a cottage industry of Kidnappers who could target free person for a bounty. Although the original Slave importation had been banned by the Congress in 1808, thanks to this law it could still continue between within the Free States and as a result No Black Person in America was truly safe from being potentially enslaved, even if they were outside of a slave state and were legally free.

Yes, the original Constitution was "Flawed" - deeply so.

These clauses are what gave us the Dred Scott Decision (1857) where it was said that even a former slave, who had lived for over 12 years as a FREE BLACK MAN didn't have rights, as black people weren't even considered *citizens* in the original Constitution.

Just for the record the Civil was not fought to "End Slavery" because it didn't. It was fought by the North to preserve the Union and by the South to protect "States Rights" - (even though they were under no threat as this legacy of Laws and Court Cases shows) - the real tragedy is that the 13th Amendment only shifted Slavery and Indentured Servitude from being focused on people based on Race, to people based on Criminal/Civil Convictions.

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Any judge or jury can even now inflict slavery or involuntary servitude on someone as punishment for a crime, which may in it's own way explain why so many criminal laws and law enforcement efforts seem to continue to focus on young black men, including torturing them into false confessions to near the exclusion of so many others who commit equal or even greater crimes - but I digress.

Much of these views were technically erased by the 14th Amendment (Ratified 1868) which (supposedly) guaranteed equal protection of the laws to all persons born in the United States and within it's Jurisdiction. Plessy v Furgeson (1896) which established "Separate but equal" including this lovely piece of skip logic.

It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property in the same sense that a right of action or of inheritance is property. Conceding this to be so for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

This decision seriously - seriously - argues that if a White Person was forced to sit in the Black section of the Train, he would have a right to sue the railroad for being deprived of his rightful "Property", but that a non-white would not! This is what the court called "Separate but Equal".

Brown v Board of Education (1954) Reversed this (teacherken points out in the comments that Brown's Scope was limited to School Segregation Only and still didn't reverse the Core of Plessy - ht), and abolished the "Separate but (Clearly Unequal)" doctrine and finally, (partially) undid the Scott ruling of almost 100 years prior.

Sen. Franken to Elena Kagan on the "Judicial Activism" of Brown v Board of Education and Justice Thurgood Marshall

The fact is that the Activist Judges were those who wrongly decided Plessy, and that in Brown the court Corrected that wrongful decision and finally began to undo a near Century of wrongful decisions which had helped enshrine and protect not just discriminatory treatment but rampant murder and terrorism that was enforced by the racial majorities in this country for centuries.

That's exactly the kind of thing that RNC and especially Rand Paul who clearly would agree with the judicial overturning of the Civil Rights Act of 1875 which protected people from private discrimination - provisions which were eventually reinstated by the Civil Rights Act of 1963 under the Interstate Commerce clause.

That would be the same clause the Tea Party is attacking in the Health Care Law as "Unconstitutional".


No comments: