Wednesday, January 4, 2012

The Constitution can take it

Two very interesting obituaries today, both about people who respected the Constitution enough to challenge the law.

The first is for Robert L. Carter who fought school segregation as part of the team arguing the case of Brown v. Board of Education before the Supreme Court.

“We have one fundamental contention,” Mr. Carter told the court. “No state has any authority under the equal protection clause of the 14th Amendment to use race as a factor in affording educational opportunities among its citizens.”
Thurgood Marshall is the familiar name in the case, but according to this account, Mr. Carter is the radical "always urging his colleagues to push legal and constitutional positions to the limits." He was appointed a federal judge by Nixon.

Very interesting man, Judge Carter.  And I appreciate that he didn't merely argue school desegregation on its own terms ("separate but equal") but argued for a much more expansive understanding of personhood and equality.

The other obituary is for Gordon Hirabayashi "who was imprisoned for defying the federal government’s internment of Japanese-Americans during World War II." I admire the heck out of this: he was sure the law was unconstitutional so he disobeyed it, despite the cost to himself. He was convicted, imprisoned, and when he contested the law, the Supreme Court upheld it.

The Hirabayashi, Yasui and Korematsu cases were revisited in the 1980s after Peter Irons, a professor of political science at the University of California, San Diego, found documents indicating that the federal government, in coming before the Supreme Court, had suppressed its own finding that Japanese-Americans on the West Coast were not, in fact, threats to national security...

“I want vindication not only for myself,” Mr. Hirabayashi told The New York Times in 1985 as he was fighting to have his conviction vacated. “I also want the cloud removed from over the heads of 120,000 others. My citizenship didn’t protect me one bit. Our Constitution was reduced to a scrap of paper.”

And how quickly it can become simply a scrap of paper when we feel threatened. That's the thing that gets me about our post-9/11 world: the moment the Constitution became hard, it seemed to become negotiable.  What this Hirabayashi story says to me is that we've learned before that this leads us down the wrong path. Why do we need to learn it again? Why do we seem to feel the Constitution is some dainty thing that needs to be coddled when the going gets rough?

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