The quest for Black’s civil rights was not like the quest for same sex marriages

Summary:  A follow-up to Another American judge weakens the Republic’s foundation, responding to comments that display serious amnesia about our history.

I’ve received dozens of comments saying that Judge Walker’s decision overturning California’s Proposition 8 (the opinion) was equivalent to one of the decisions overturning segregation, from Brown v. Board of Education (1954) through Loving v. Virginia (1967, overturning Virginia’s ban on interracial marriages).  This displays modern American’s remarkable amnesia.

The 14th amendment was not discovered by judges.  After the Civil War the South again suppressed African Americans.  Almost a century later, judges wrote a paper trail to liberty.  But only actions in the real world gave African Americans their rights:   Congressional legislation, Presidential actions (including use of armed force, civil and military), plus mass protests (including violence).

It’s bizarre to compare this bloody, century-long struggle to the discovery of a right to same-sex marriage.  They both represent progress, but in very different ways.  Dressing the latter in prestige borrowed from the former distorts our history and ignores the risks being taken.

Update:  As stated in the previous post, Judge Walker could have ruled that Proposition 8 violated the equal protection clause because he believes it does in fact violate it.  Most of us (including me) would have applauded and moved on.   His convoluted ruling not only fails to adequately settle this issue, it slides us down a potentially dark road.


  1. The role of force
  2. The role the Presidential orders and Congressional legislation
  3. The nature of progress in a Republic
  4. For more information and contact info

(1)  The role of force

The 14th and 15th amendments ended the legal basis for racial segregation (although commendably written in an open-ended fashion not limited to racial inequality).  That’s clear both in the text and original intent.  An insurgency by Southern whites prevented their implementation, in part due to the Depression of 1873.  This was perhaps the turning point:

In 1875  Democrats implemented the Mississippi Plan to recapture control of the State government, including violent suppression of Black voting by the Red Shirts and White League.  That September Governor Adelbert Ames requested Federal troops after 20 – 30 African Americans were killed in Clinton MS.  Attorney General Edwards Pierrepont refused, saying “The whole pubic is tired of these annual autumnal outbreaks in the South.”

The Compromise of 1877 finally ended Reconstruction.  Plessy v. Ferguson (1896) wrote its epitaph, “separate but equal”.  The long road back required intervention by both the military and law enforcement.  More evidence that counter-insurgency requires a long sustained effort.

  • In 1957, Arkansas Governor Orval Faubus called out the National Guard to block black students’ entry to Little Rock High School. President Dwight Eisenhower issued issued Executive Order 10730, deploying the 101st Airborne Division and bringing the Arkansas National Guard under Federal control.
  • In 1963, Alabama Governor George Wallace personally blocked the door to Foster Auditorium at the University of Alabama to prevent the enrollment of two black students, enforcing the “segregation now, segregation tomorrow, segregation forever” pledge in his 1963 inaugural address.  President Kennedy ordered the Alabama National Guard to break the blockade.
  • Intense pressure eventually (and slowly) pushed the FBI to act, as in its investigation of the 1964 lynching of 3 Mississippi civil rights workers (Wikipedia).  See here for details about the FBI’s campaign against the insurgents.

Also important was the counter-insurgency.  First a long series of non-violent efforts, from the Montgomery Bus Boycott (1955) to the Selma to Montgomery marches (1965).  Then violence — the race riots of 1964 – 1968.  These were a crude, costly, but successful form of open-source counter-insurgency by Black Americans.  Cities burned, with their core areas occupied by troops of the National Guard.  Rochester, NY, Philadelphia, Cleveland, Buffalo, Newark, Detroit, and others.  As a result, the government began large-scale action to mitigate the damage from centuries of oppression.  The 1968 Kerner Commission report was a milestone in this process — symbolic but indicating the direction of government policy.

(2)  The role the Presidential orders and Congressional legislation

Giving it greater legitimacy, the civil rights movement had a foundation of Presidential orders and Congressional legislation.  Unlike many of today’s new rights, instituted solely by Judges overturning legislation and referenda.

FDR signed Executive Order 8802 in June 1941, requiring all federal agencies involved with defense production to ensure that vocational and training programs were administered without discrimination as to “race, creed, color, or national origin.” All defense contracts were to include provisions that barred private contractors from discrimination as well.

Truman signed Executive Order 9980 and Executive Order 9981 (1948) ordering desegregation of the Federal government and ordering “equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin.”

President Kennedy introduced Civil Rights Act of 1964. President Johnson followed with the Voting Rights Act of 1965 and the Fair Housing Act of 1968.

(3)  The nature of progress in a Republic

Same sex marriages have gone from illegal to accepted, and I support this evolution.  But let’s not lie to ourselves, claiming that our wisdom makes evident what previous generations should have seen.  Instead we have changed our society’s rules.  It’s evolution — aka progress.

{Update:}  Much of the commentary about this ruling assumes that rights are Platonic objects, pre-existing in some real but intangible sense.  And Judge Walker discovered this right to same-sex marriage — proving his predecessors (those who ruled otherwise) to be wrong.  As scientists, like Einstein, do.  The psychological mechanisms for this conceit are fascinating, but largely an unwillingness to see that our society evolves — and our interpretation of the Constitution evolves along with it.  That’s disturbing to those who see the Constitution as an unchanging foundation — like God, King and currency were for earlier societies.

But the mechanism for change  in our society should be elections, not rulings from unelected judges.

This enshrinement of unrepresentative mechanisms by elites — the commonplace overturning by judges of laws and referenda — weakens the foundations of our regime.  Courts broken free of their moorings, with judges free to enact their own political opinions, should frighten any believer in a constitutional order.  We already see the consequences in the politicization of Senate confirmations of judges.

When the next tyrant threatens our regime, liberals will whine that the machinery they wrecked no longer works.  We’ll miss the Constitution when its gone.

(4a)  For more information

For an excellent account of the South’s reaction to the Civil War (including its succesful insurgency) and the long-term consequences, see The Culture of Defeat – On National Trauma, Mourning, and Recovery by Wolfgang Schivelbusch (2001).

Posts about the Constitution and our government

  1. Forecast: Death of the American Constitution, 4 July 2006
  2. The Constitution: wonderful, if we can keep it, 15 February 2008
  3. Congress shows us how our new government works, 14 April 2008
  4. See the last glimmers of the Constitution’s life…, 27 June 2008
  5. Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
  6. A report card for the Republic: are we still capable of self-government?, 3 July 2008
  7. Another step away from our Constitutional system, with applause, 19 September 2008
  8. What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
  9. Are Americans still willing to bear the burden of self-government?, 27 March 2009
  10. “Lights, Camera, Democracy” by Lewis Lapham, 24 May 2009
  11. “The Constitution that I interpret and apply is not living, but dead.” – Supreme Court Justice Scalia, 9 June 2009
  12. More about the tottering structure of the American political regime, 17 August 2009
  13. Listen to the crowds cheering Sarah Palin, hear the hammerblows of another nail in the Constitution’s coffin, 8 February 2010
  14. Another nail put in the Constitution’s coffin, but we don’t care, 9 February 2010
  15. Recommended reading about the Constitution, 17 March 2010
  16. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010

1 thought on “The quest for Black’s civil rights was not like the quest for same sex marriages”

  1. The easy way for gays to be accepted in the US military

    Allowing openly gay people in the armed forces has arroused massive, even frantic opposition among active duty and retired military personnel. There was an opportunity to avoid all this. The military community loves the 2007 film 300. If only it had shown this announcement at the beginning.


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