by Dahlia A. Walker-Huntington
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. Amendment X, U.S. Constitution.
SOUTH FLORIDA – The United States has three branches of government, the Legislature – Congress; the Executive – the President and Cabinet; and the Federal Courts.
The United States Constitution was signed on September 17, 1787 and is the law of the land. In 1791 the Bill of Rights – the first ten amendments – was added to the Constitution.
It is the duty of the United States Supreme Court to determine the meaning of the Constitution and whether laws enacted are in compliance therewith.
When Congress or States pass bills that become laws, the legality of the legislation is left up to the Courts, and oftentimes ultimately, the US Supreme Court.
If the Supreme Court finds that an action is unconstitutional, that ruling can kill the law leaving it up to the legislature to go back to the drawing board; refer the case back down the chain in the Federal Court system; or indicate what must be done to make what was intended legal.
Conservatives/Republicans believe that the Constitution should be interpreted strictly and on its plain meaning; and Liberals/Democrats believe that it is a living document the interpretation of which was intended to evolve with the ever-changing times.
The United States government, also known as the Federal government and the States have had on-going conflicts and disagreements over the interpretation of the Constitution since its inception, and in particular the 10th Amendment quoted above. Most notably fighting the Civil War, 1861 to 1865 over the issue of slavery and the rights of the southern States.
Brown v. Board of Education of Topeka, Kansas
During the 1950s and 1960s America and the US Supreme Court struggled with the issue of the civil rights of black Americans. In the seminal case of Brown v. Board of Education of Topeka, Kansas, 347 US 483 (1954), the Court said separate school systems for Black and White children was anything but equal and was unconstitutional. The Court held that States should take “…all deliberate speed” to integrate schools across America and end legal segregation.
Plessy v. Ferguson
Prior to that ruling, the doctrine of segregation had been legalized thru Plessy v. Ferguson 163 U.S. 537 (1896), and it was legal to have separate schools for black and white children as long as they were “equal”.
Racist local school boards fought against the integration as ordered in Brown, as did racist Governors and other local elected officials and created “de facto” segregation. They drew boundaries that ensured that schools remained white or black; and in some instances, closed schools that included black children and rebuilt schools in areas that would ensure a white student body.
School districts also were segregated as a result of “de jure” segregation. That is neighborhoods were segregated because of other discriminatory acts, e.g. discrimination in the workplace, in higher education, and in particular, in access to housing thru the inability to obtain mortgages or the flat-out refusal to rent or sell to people of color.
The US Supreme Court in the 1971 case of Swann v. Charlotte-Mecklenburg Board of Education 402 U.S. 1 (1971) almost 20 years after Brown, ruled that busing could be used to integrate schools. Eventually, the US Department of Education (the Federal government) stepped in to use busing as a means of integrating schools throughout the United States because the local governments and school districts continued to resist the US Supreme Court’s rulings.
Loosely stated, one of the fundamental differences between a Democrat and a Republican is the issue of State’s Rights.
Conservative Republicans believe in the States being more powerful than the Federal government in areas not specifically designated to the Federal government in the Constitution – arguing the 10th Amendment.
Democrats look heavily to the Federal government to protect the rights of every citizen. Therefore, to hear a candidate who wants to be the Democratic Party’s nominee for President of the United States in the 2020 general election say that he opposed federally mandated busing because it was a, “State’s Rights” issue, is deeply disturbing to me as a Democrat.
Joe Biden opposed federally mandated busing in the 1970s and worked with avowed Segregationist, Democratic Senators to try to stop it.
I am not calling Joe Biden a racist, but whatever his motivations were back in the 1970s, we are now in 2019 with the assistance of hindsight over decisions made 40 years ago and opinions held. People evolve in their thinking and in their behaviors.
But, when with hindsight, you hold doggedly to an opinion that flies in the face of reality, your ability to lead in the present stands in doubt. Busing was not the perfect cure to fix the problem of segregated schools, but it was a remedy of the times to work towards integration.
The Federal government used other sections of the Constitution to ensure the civil rights of black and brown people in the 1960s including the Interstate Commerce Clause (Article 1, Section 8; U.S. Constitution). The government basically said if you engaged in business that “touches” interstate commerce, you could not discriminate. Among other usages, the “Commerce Clause” was used to prevent private discrimination in restaurants and hotels forcing these establishments to give service to everyone regardless of race.
This question that I ponder is: if as a Democrat believing in “States’ Rights” on busing, did this belief also extend to other areas of forced integration to preserve the civil rights of blacks in America?
Race has always been America’s Achilles Heel and the issue has been danced around in previous presidential elections. Even Barrack Obama did not dissect the issue of race during his candidacy and to a certain extent, for most of his presidency.
However, because of the current occupant of the White House, it is virtually impossible to have a 2020 Presidential primary race and a general election campaign without race being at the forefront.
Notwithstanding his claims as a defender of civil rights for decades, and his tenure as Barrack Obama’s Vice President, Joe Biden with his performance over the last two weeks on the issue, does not appear equipped to deal with the subject of race head-on.
Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practices Immigration law in the United States; and Family, Criminal & International law in Florida. She is a Mediator in Broward County, Florida. [email protected]
