The liberal state has always been as strong as the political and social situation and the interests of society demanded.
Legalism can sanction lawlessness.
Kato, p. 2.
But this subtlety of accommodating something that was anything but subtle reveals the dark side of constitutional flexibility. If it is the case that “Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes of emphasis and arrangement without loss of essential form”, then what exactly is the point of having a Constitution?”
Kato, p. 158
Daniel Kato’s book Liberalizing Lynching describes the way the Supreme Court allowed the Fourteenth Amendment (1866) to be suspended in the Southern states for the greater part of a century (1877-1965). Lynch-mob justice came to be accepted as normal in about a third of the US, and black Americans in the old Confederacy lost their voting rights, their right to the protection of the laws, their right to a fair trial, and their access to education. I am not a legal scholar, and a thorough critique of this book would require a mastery of American political and legal history 1865-1965 which I do not have. I will only outline a few of the main points of this book as I see them.
The most important point I see is this: the Court’s various pretexts for not acting to end lynching were mostly ad hoc evasions. They were never solidly grounded in law, and were motivated only by a silent political consensus of both political parties, the Court, Congress , the President, and public opinion. It was felt that in the South, because the time was not ripe and too much trouble would ensue, the Fourteenth Amendment should not be enforced. This consensus only began to be seriously challenged toward the end of WWII, and before that time the Supreme Court honored it in a series of decisions consistently pointing in the same direction, but without addressing the main point. The Court refused to rule against the southern states’ tacit approval of murder by mob violence, but they did this without definitively relinquishing the option of addressing the question in the future.
Perhaps the most important evasion was the weak state principle, which held that the federal government does not have the power to intervene in matters which were exclusively the concerns of the states. A second evasion was the **** which held that the federal government might intervene with regard to the official actions of the states, but was powerless to address private non-state violations of the Fourteenth Amendment.But following Neumann, Kato denies that this principle was to be found the Constitution or in the body of Court decisions, but was merely an informal arrangement and a political deal according to which the Court made “an explicit policy choice” and a “decided not to act”. In Neumann’s words, “the liberal state has always been as strong as the political and social situation and the interests of society demanded”; but with regard to these cases, the Court chose not to exercise its power.
Kato describes the situation thus attained as “constitutional anarchy” – an active policy of nonenforcement of law within a considerable part of the United States . Kato’s idea of “constitutional anarchy” is a development of Fraenkel’s concept of an American “dual state”, which comprises (in the words of Young and Meisner) “a contractual state, premised on the rule of law, that promoted the growth of a prosperous liberal democratic society of Anglo-Americans”, together with “a predatory state that financed white liberal society with its ruthless exploitation of Indian lands and Afro-American labor“. The white supremacy state described by Kato was not directly predatory, but by deliberate federal inaction allowed predatory behavior, whereby locally organized non-governmental mobs took on the state’s enforcement functions, something which led to great injustices.
When Thurgood Marshall’s Court finally intervened in civil rights cases, no new law had to be written and no precedent had to be overturned.; all that had to be done was to reinterpret old statutes. The decisions which had made a federal lynch law impossible were not decided on the substance of the issue but on the basis of a series of secondary technical issues. What the civil rights decisions of the 1950s did was just to reactivate laws which had been informally suspended, but what it seemed they were doing was to write new law: Federal non- intervention had attained such a degree of consistency, stability and rigidity that it had attained a lawlike status [making] reactivating the law seem like usurping the law. These changes in the Supreme Court’s responses during the 1950s and 1960s were done in response to changes in the political climate and not based on any legal principle. In particular, the 1964 Civil Rights bill was pushed through by Johnson in response to a powerful political movement, and the Supreme Court court which upheld the law was led by Thurgood Marshall, who had been appointed by Johnson to do just that.
I did not come out of the reading of this book with an enhanced respect for the law or for the Supreme Court, and to me Kato’s question is on the money:
If it is possible always to meet extraordinary needs by changes of emphasis and arrangement without loss of essential form [as Franklin Delano Roosevelt had said in a different context] , then what exactly is the point of having a Constitution?
For the greater part of a century, the Supreme Court was useless if not harmful in the fight to gain for black Americans in the South the basic rights they had been granted by the Fourteenth Amendment in 1866. The court’s role in the fight against slavery was, if anything, even less honorable. Looked at from the point of view of the fights against slavery and white supremacy, law seems to be little more than a ratification and codification of the political consensus at any given time, a sort of governor that keeps things from ever changing too fast, but which does not have much in the way of core principles — and it might be added that the Constitution itself is a mess, full of pitfalls and booby traps and with a strong bias toward property right. In my opinion, while we should always remember that the law is a powerful reality which we will always have to take into account, we should also always be aware that the law is not our friend.
This is a very sketchy summary of a dense book, and I have mostly left out the decisions between the 1870s and the 1950s which make up a large part of the story. Perhaps my review will motivate others more qualified and diligent than I am to take a closer look at Kato’s remarkable book.