Wednesday, August 15, 2012

Balkinization: "Scholars’ Brief in Fisher v. University of Texas Urges New Look at Text and History of the Fourteenth Amendment"
My comments, slightly rearranged here.
An argument could be made that the original intent of the reconstruction amendments was "unconstitutional", inconsistent with previous understandings, or that the framers wrote amendments in race neutral terms but then while they could promoted discrimination based on race. A brilliant decision, to set their own policies on auto-destruct, only after they'd begun to do their work.

Constitutional consistency and Biblical inerrancy are related. Reading is interpretation, and saying with Scalia, "the constitution as I interpret it is a dead constitution" is oxymoronic [also hypocritical, see Jack Balkin here].
To quote a figure in the last administration, "we invent our own reality".
It's our job to make lemonade of lemons, something palatable with what we have before us, and to argue with each other over whether to add sugar or salt. The argument over a common text is more important than the text itself. [the rule of law as due process not result] As to liberal pretensions: Wickard v. Filburn helped secure US domination of the post-war world. Democracy might have been stronger if the decision had gone the other way. And then there's Derrick Bell on Brown.

From "A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th Amendments", written by J.J. Gass and Nathan Newman for the Brennan Center:
[I]n 1867 Congress passed a law providing relief for “freedmen or destitute colored people in the District of Columbia,” to be distributed under the auspices of the Freedmen’s Bureau. Of particular importance in the late 1860s was the Bureau’s operation of schools for blacks, to the point that black children in the South were often better educated than their white counterparts. Opponents, including Johnson, raised the same arguments that would be marshaled against affirmative action programs a century later, but well more than the necessary two-thirds of Congress concluded that the 13th and 14th Amendments authorized race-conscious legislation to ameliorate the social condition of blacks.
"to the point that black children in the South were often better educated than their white counterparts."  How's that for a brilliant way to sow anger and mistrust among the poor white trash?  Divide the poor, and conquer.

When Harold Washington won his first term as mayor of Chicago, after a divisive election in which the white vote was split, one of the first things he did was tour white working class neighborhoods on the north side. In the words of someone who was there, he walked around and in his theatrical tone said "Hey, These streets are a mess! These garbage cans haven't been emptied for weeks! We'll have to do something about that!" And he did. The locals were shocked. They never thought a black mayor would give a damn about them. Washington won his second term running against only one significant opponent,"Fast Eddie" Vrdolyak.

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