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The Time To Repudiate Brown v Board of Education is Overdue

A VIEW FROM HERE - Although the country’s history with slavery is not the core problem facing the nation, there is the need to root out a strong anti-Black legal tradition. 

For the welfare of the nation as a whole and for the Blacks in particular, the Supreme Court needs to repudiate Brown vs Board of Education, 347 U.S. 483 (1954). 

Virtually no one will admit the huge conflict between ending segregation and the atrocious reasoning on which the Warren Court based its decision.  Rather than reject the legal reasoning in Plessy vs Ferguson 163 U.S. 537 (1896), which had approved the racist Separate But Equal Doctrine, The Warren Court adopted the same approach of Plessy, i.e. denying that Black individuals were entitled to the inalienable and constitutional right of Liberty.  The basis for the Brown conclusion that segregation was unconstitutional was a handful sociological studies which found that segregation had an adverse impact on Black achievement. The Warren Court framed the issue: 

"Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities?" 

The Warren Court’s formulation of the issue precluded any discussion of Liberty (freedom) of Blacks or of Whites, making it a set up for its conclusion: “Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.”  The entire case rested on recent psychological and sociological studies about the low achievement in Black students in racially segregated schools. 

The Warren Court should have written:

“Any law that forbids a child from attending the school to which he would go but for his race, deprives that child of Liberty. No deprivation of liberty [or life or property] based upon a person's race can ever be "with due process." Therefore, we hold that racial segregation is per se unconstitutional as an impermissible deprivation of Liberty under the 14th Amendment.” 

Like Plessy, Brown refused to acknowledge that the individual inalienable and constitutional right of Liberty applied to Blacks.  Instead, the nation had to manipulate social factors so that Black achievement would be the same as White achievement.  This philosophy launched quotas in education and employment and was the basis the Victimization Philosophy that all Black problems stemmed from their being victims and all responsibility to rectify the situation rested with Whites. (This perniciously racist approach was 100% contrary to everything on which Martin Luther King based the entire civil rights movement, i.e. individual Liberty.) 

 

 Lawrence vs. Texas, 539 U.S. 558 (2003) Highlights the Inherent Racism in Brown 

Although Gays are everywhere, the public perception of Gays is White male. When the Supreme Court had to decide its landmark Gay Rights case, it chose a Texas sodomy statute, which by its nature excluded women.  All the plaintiffs were White males.  Justice Anthony Kennedy based Gay Rights 100% on Liberty.  Kennedy’s opening paragraph stated: 

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence.  Freedom extends beyond spatial bounds.  Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.” 

Just as Blacks were beset by poverty pimps whose made their fortunes by measuring Black representation in everything, Gays suffered from their own Gay Pimps with their hands out stretched for government dollars.  The bulk of the Gay community rejected Equality, despite the widespread use of that word.  An important distinction is that most Gays can hide in plain sight and had no intention of outing themselves.  All Gay legal challenges included a claim based on Liberty even when the Dems tried to impose the Black Equity Formula on Gays. 

When Push Comes to Shove, Most Americans Dislike Equality 

While Americans love freedom, they consistently reject equality, but the proponent of Identity Politics refuse to acknowledge this fact.  To this date, the Equal Rights Amendment has not been ratified.  Its first version was written in 1923. The final version was approved by Congress in 1972 and set 1979 as it date for state ratification.  Had the amendment been based on women’s individual inalienable right to Liberty, the amendment would have most likely passed in record time. We will never know.  Congress ratified the Thirteen Amendment, which was based 100% on Liberty, in January 1865 and it received state approval in December 1865.  

Equality Leads to Divisiveness Which Leads To Civil War 

Despite the recent anniversary of the January 6 insurrection, the Dems refuse to acknowledge that the civil war has begun.  The main thing which fuels the civil war is the Dems racist Identity Politics.  Whenever a nation is divided into factions, it will devolve into civil war.  That is the reason the founding fathers excluded religion from government.  They knew that as soon as one religion controls the government, it targets other religious groups.  The inevitable result of Pelosi’s Identity Politics is explained in the recent New Yorker article, How Politics Got So Polarized, by Elizabeth Kolbert.  People with the same interests and values can be reduced to warring factions by assigning each person to a different group and making each individual’s welfare rest on how well his group is doing.  The present political division is great for demagogues like Trump and Pelosi, but disastrous for the nation. 

The GOP Perversion of Liberty

Division creates hideous distortions. When the Dems abandoned individual Liberty in favor of Identity Politics, the Alt Right claimed Liberty.  Although White Supremacists are less than 1% of White Americans, the Woker Dem attack on generic White Americans provoked an unAmerican type of freedom, i.e. the anti-masker anti-vaxer freedom to harm others.  Kolbert probably would not find this development out of line with what happens when demagogues slice and divide a nation into warring camps.  In a perversion which seems truly insane, millions of Americans claim the freedom to deny reality and like lemmings follow obvious fake news over the cliff to needless deaths for themselves and others. The insanity which division breeds is unfathomable unless one is caught up in it like deranged fanatics at a European soccer match. 

A good step towards sanity would be for the Supreme Court to repudiate the reasoning in Brown and state that “each individual has the inalienable right of liberty, making segregation unconstitutional.”  I really don’t care if they just throw it in as a footnote in the next case. Just Do it!

(Richard Lee Abrams has been an attorney, a Realtor and community relations consultant as well as a CityWatch contributor. The views expressed herein are his own and do not necessarily reflect the views of CityWatch. You may email him at [email protected])