Why Charles L. Black thought Wechsler, Bickel, and company were mendacious morons: Charles L. Black (1960): The Lawfulness of the Segregation Decisions: "IF the cases outlawing segregation 1 were wrongly decided, then they ought to be overruled... [and] will be overruled, slowly or all at once, openly or silently.... The hugely consequential error cannot stand and does not stand.... There is call for action in the suggestion that the segregation cases cannot be justified... practical and not merely intellectual significance in the question whether these cases were rightly decided. I think they were rightly decided, by overwhelming weight of reason, and I intend here to say why I hold this belief. My liminal difficulty is rhetorical-or, perhaps more accurately, one of fashion. Simplicity is out of fashion, and the basic scheme of reasoning on which these cases can be justified is awkwardly simple.... The equal protection clause of the fourteenth amendment... the Negro race... is not to be significantly disadvantaged by the laws of the states.... Segregation is a massive intentional disadvantaging of the Negro race.... That is really all there is to the segregation cases. If both these propositions can be supported by the preponderance of argument, the cases were rightly decided...
...The first of these propositions has so far as I know never been controverted in a holding of the Supreme Court.... The lurking difficulty [is that]... "reasonable" necessarily finds its way into "equal protection".... "Equal" thereby comes to mean not really "equal," but "equal unless a fairly tenable reason exists for inequality." But the whole tragic background of the fourteenth amendment forbids the feedback infection of its central purpose with the necessary qualifications that have attached themselves to its broader and so largely accidental radiations.... The fourteenth amendment... must be read to say is that the Negro is to enjoy equal protection of the laws, and... being a Negro is not... reason for denying him this... however "reasonable" that might seem to some people....
Does segregation offend against equality?... If a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is then solemnly propounded whether such a race is being treated "equally," I think we ought to exercise one of the sovereign prerogatives of philosophers-that of laughter. The only question remaining (after we get our laughter under control) is whether the segregation system answers to this description. Here I must confess to a tendency to start laughing all over again.... It is actionable defamation in the South to call a white man a Negro.... These points... are matters of common notoriety.... A court may advise itself of them as it advises itself of the facts that we are a "religious people," that the country is more industrialized than in Jefferson's day, that children are the natural objects of fathers' bounty, that criminal sanctions are commonly thought to deter, that steel is a basic commodity.... It would be the most unneutral of principles, improvised ad hoc, to require that a court faced -with the present problem refuse to note a plain fact about the society of the United States-the fact that the social meaning of segregation is the putting of the Negro in a position of walled-off inferiority-or the other equally plain fact that such treatment is hurtful to human beings. Southern courts, on the basis of just such a judgment, have held that the placing of a white person in a Negro railroad car is an actionable humiliation;1s must a court pretend not to know that the Negro's situation there is humiliating?...
#noted
