The liberal state has always been as strong as the political and social situation and the interests of society demanded.
– Franz Neumann
Legalism can sanction lawlessness.
– Daniel Kato
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?”
Daniel Kato’s book Liberalizing Lynching: Building a New Radicalized State 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 main 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, either because the time was not ripe or because the Federal government was not empowered to encroach on the powers of the states, the Fourteenth Amedment could not be enforced. This consensus that only began to be seriously challenged toward the end of WWII, and before that time the Supreme Court honored it, as shown by a series of decisions consistently pointing in the same direction, but without and common rationale. In this way the Court refused to rule against the southern states’ sanctioning of murder by mob violence, but without definitively relinquishing the option of addressing the question in the future.
One evasion was the weak state principle, which held that the federal government did not have the power to intervene in matters which were exclusively the concerns of the several states. A second was that it might intervene with regard to the official governmental actions of the states, but was powerless to address private non-state violations of the Fourteenth Amendment. Following Neumann, Kato denies that this principle was to be found the Constitution or the body of Court decisions merely an informal arrangement and a political deal producing an explicit policy choice and a decision 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 achieved as “constitutional anarchy” – an active policy of nonenforcement of law within a a certain part of the state. This is a development of Fraenkel’s concept of the “dual state”, which (in the words of Young and Meisner) consists of
a contractual state, premised on the rule of law, that promoted the growth of a prosperous liberal democratic society of Anglo-Americans, and a predatory state that financed white liberal society in its ruthless exploitation of Indian lands and Afro-American labor.
The white supremacy state described by Kato was not directly predatory, but by deliberate governmental inaction sanctioned predatory behavior, allowing locally organized non-governmental mobs take on the state’s enforcement functions, with great injustices rising from that.
Federal inaction was thus only a customary procedure, and 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 blocked a federal lynch law were not made on the substance of the case but on the basis of a series of secondary technical issues. The civil rights decisions of the 1950s reactivated laws which had been suspended by a tacit agreement, but because of the decades-long sway of the extralegal agreement, it seemed that they were writing 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.
The changes in the Supreme Court’s responses during the 1950s and 1960s were done in response to changes in the political climate. 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, 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, and the court’s role in the fight against slavery was, if anything, even less honorable. The law seems to be little more than a ratification and codification of the political consensus at any given time, and a sort of governor that keeps things from ever changing too fast, but without much in the way of core principles. The Constitution itself is a mess, with all kinds of pitfalls and booby traps and a strong bias toward property rights, and I think that while we should always remember that the law is a powerful reality 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 very 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 Liberalizing Lynching.