Historian Lawrence Goldstone

Originally aired on February 8, 2011

Historian discusses his book, Inherently Unequal, and challenges the theory that the U.S. Supreme Court is an apolitical body.

Lawrence Goldstone is the author of 12 books of both fiction and non-fiction, six of them co-authored with his wife. His debut novel, Rights, won a new American Writing award, and he's written several highly praised works of narrative history. His work has also appeared in a number of magazines and several newspapers, such as the Boston Globe, Los Angeles Times and Miami Herald. Goldstone holds a Ph.D. in American constitutional studies, and in his latest text, Inherently Unequal, examines how the Supreme Court empowered the Jim Crow era.


Tavis: Lawrence Goldstone is a noted historian and constitutional scholar who previously appeared on this program for his terrific book on slavery called “Dark Bargain.”
His latest is “Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903.” Lawrence Goldstone, good to have you back on this program.
Lawrence Goldstone: Well, thank you for having me.
Tavis: We all, of course, I suspect most of us did, saw the president’s State of the Union speech just a few weeks ago.
Goldstone: Yes.
Tavis: Relative to this book, though, my mind went back, Lawrence, to his first State of the Union speech where he made a particular comment about a decision the Supreme Court had made, and Samuel Alito went apoplectic, you’ll recall.
Goldstone: (Laughs) I do.
Tavis: Justice Alito sat there and just couldn’t take the president criticizing, with the Supreme Court sitting on the front row, a Supreme Court decision. I start with that because I’m curious how it is you think that people respond these days to a book so harshly criticizing the U.S. Supreme Court.
Goldstone: Well, I think it depends on whether you agree with the thesis or not.
Tavis: Okay.
Goldstone: People who view the court as being largely political, which I do, think I did a very good job of taking a period and making it clear in a narrative way. People who think that the court is not political but is a group of people who just sit and deliberate and come down on the side of a question regardless of their own views think I’m taking an unfair shot. So a lot of it depends on how it’s read.
Tavis: Speaking of your comment about the Supreme Court being political in the minds of some, there’s a great quote – there are there great quotes, one from Bob Dylan, one from Oliver Wendell Holmes and one from Thomas Reed Powell, speaking of politics, and the quote reads, “Many lawyers complain that constitutional law is not law but politics. Perhaps, however, all law is more politics than some may be willing to confess.” Do you agree with that?
Goldstone: Oh, yes, yes. I stumbled on that quote and knew that I had to put it in the front of the book, because what you had in the period I’m talking about, there were – we had three constitutional amendments at the end of the Civil War. One abolished slavery, one guaranteed the right to vote, another one guaranteed everyone equal justice under law.
For a period of 30 years, the court came down with decision after decision which narrowed the – they didn’t say you can’t say an amendment is unconstitutional, it’s in the Constitution, but they rewrote it little by little by little, that by 1900 Black people in America had no rights, they couldn’t vote. We had complete segregation, which was against the amendments. Now, if this is not a political action, I don’t know what is.
Tavis: But how do you explain to folk, certainly young folk, who are taught every day in civics class, in history class, that the Supreme Court is an apolitical body?
Goldstone: It’s very difficult, because everywhere you read, the two political branches of government, the executive and the legislative, as if the court is somehow different, but I would say look at key decisions. How many times does a justice render a decision that goes against his ideology? Bush versus Gore – five conservative justices vote for Bush, four liberal justices vote for Gore.
I don’t distinguish between conservative and liberal justices. I think that people bring their own particular point of view to the law and it isn’t necessarily that they’re cynical. This is how they see things. But politics in a democracy is people seeing things in different ways, getting together and coming to some consensus.
But the difference in the court is these people are appointed, they serve for life and the only way you can get somebody off the court is to impeach them, and that’s almost impossible to do. So we have anointed this body to tell us what the Constitution says, and we the people have no recourse.
Tavis: To your point now about not having any recourse, I think it is impossible, it is unavoidable that people are going to bring their whole selves, all of who they are, all their experiences, their beliefs, et cetera. So we bring our whole selves to everything we do, and that includes the U.S. Supreme Court.
Goldstone: Yes.
Tavis: So one, it’s unavoidable, I think – again, impossible – that people are going to separate everything they think or believe from how they adjudicate, number one. But secondly, I’m not so sure that’s necessarily a bad thing. What’s wrong with having some tension on the Supreme Court about how we view these issues? Why should it be my way or the highway, one way or the other way?
Goldstone: I agree with you completely. I think democracy functions – I’m with James Madison. He said, you throw a bunch of people effectively into a room and you let them hash out an issue based on their own points of view, and you’re going to come to some consensus that will serve not everyone – never serves everyone – but will serve a lot of people.
What disturbs me with these justices and with the current justices is we have a group of people saying I know what the Constitution says. It’s just what you said – my way or the highway. That we now have a segment of the judiciary and scholars who say the Constitution means this. I know it means this and it only means this.
Tavis: Are those those strict constructionists that you’re talking about?
Goldstone: Yeah, but the Constitution was written to be vague. The genius of the Constitution was that the people who drafted it wrote it to be a flexible document, not to have one solid meaning all the time. There are any number of clauses I can point out that it’s not possible to know exactly what they mean, yet we have a Tea Party movement, we have talk show hosts, we have conservative politicians screaming that anyone who brings an interpretation of the Constitution different than theirs is an “activist,” as if this was some terrible flaw in our documentary, when actually it’s a strength.
Tavis: Tell me about the types of folk who are on the court, because you do a good job in this book of not just detailing all these cases, Lawrence. It’s fascinating to go case by case for how you build how the Supreme Court over the years did, in fact, betray the equal rights in this country, certainly of African-Americans, “colored folk,” back in the day.
But tell me about these persons who found their way onto the court, and whether or not they were all of one political ideology, whether they were a mixed political ideology, and if they were of mixed political ideology, they obviously agreed on this one issue.
Goldstone: Yes.
Tavis: That we want to deny these Negroes these rights.
Goldstone: Yes.
Tavis: Yeah.
Goldstone: Well, also they were reflecting popular sentiment. Even though Constitution amendments were passed and civil rights acts were passed, most of the people in the country didn’t approve of and certainly wanted nothing of sharing theater seats, theater rows with Black people or restaurants with Black people.
“The New York Times” wrote a scathing editorial after the Civil Rights Act of 1875 was passed saying this has set governing back 200 years, and they always did it in the name of liberty, just like today. They’re saying we have to get the federal government out of this.
The federal government is taking too big a role. Individual liberty – and of course, “individual liberty” was just a code word for denying Black people rights – but most of the justices who got on there were corporate lawyers in the second half of the century, so they reflected a very pro-business, a very pro-White, a very pro-status quo ideology.
Tavis: You start the book, and I could have begun our conversation here, you start the book with an absolutely – and this word won’t do justice to it – ghastly, harrowing story of a particular lynching.
Tell the story quickly, and I’m just curious as to why you decided to start this book with that story.
Goldstone: It was a man named Sam Hose in Georgia in 1899. He was a laborer. He had taught himself to read to try to make a little more money, because his mother was an invalid. He found his mother was ill. He asked his employer for some time off. The employer refused, and Sam Hose evidently talked back, which is an unthinkable slight.
The owner spent all night stewing about it, came back the next day with a gun, said he was going to use it. Sam Hose threw a hatchet – he was chopping wood – and killed the man. He was tracked down, and the Atlanta newspapers just made it lurid, that he had raped the wife, which was completely untrue, killed the children, which was completely untrue.
They caught him, brought him back and in front of 4,000 people, many of whom had taken a train from Atlanta, he was burned at the stake, twice – he was burned, he fell out, they put him back in. After he was dead, his organs were removed, his fingers were cut off.
It was the most ghastly, horrific – I’ve written about the Middle Ages and I’ve never seen anything like this. Four thousand people watched – women, children. People brought their children to watch this lynching, this burning, in 1899.
The reason I put it in was not that a Supreme Court justice was present, but the decisions of the court disemboweling the 14th Amendment, making it impossible for Black Americans to seek equal justice under the law, made these kinds of incidents happen.
Tavis: Even if you disagree politically with abolishing slavery or giving colored people equal rights, even if you agree with that part politically, I’m trying to understand what it was about these men over these years that didn’t allow them to connect with the humanity of these persons. You tell a story like that, we may disagree politically, but I’m trying to understand how you don’t understand, how you can’t appreciate my humanity.
Goldstone: Well, it’s one of two reasons. I can’t get inside their heads, but there was a large segment of the population that did not see Black people in the same – I’m not saying they weren’t human, but they weren’t the same kind –
Tavis: Chattel, yeah.
Goldstone: Yeah. No, they just weren’t the same kind of human. They were fundamentally different, fundamentally inferior. There was a movement called social Darwinism that was spreading through the country at the time – Oliver Wendell Holmes, Andrew Carnegie, a lot of very important people subscribed to it – which said that if you are doing well in society it’s because you deserve to, and if you were doing poorly in society it’s because you deserve to.
Therefore, Black people, who by and large were doing poorly in society, deserved where they were, and the last thing you wanted to do is to make it easy for people who were fundamentally inferior to be able to move into the mainstream of society, because then you make society worse.
Now, we look at social Darwinism today and we laugh at it, but if you look at the roster of people who believed in that philosophy, including many Supreme Court justices, you get a sense that protecting the rights of a group of people they considered fundamentally inferior was not a big deal.
Tavis: Our time is up, but I’m thinking as you made that last comment that we may laugh at social Darwinism when we hear it labeled, described as social Darwinism, but in effect, there’s still a whole lot of folk who don’t – well, I digress. You get my point.
Goldstone: Indeed.
Tavis: (Laughs) We ain’t working hard enough yet to lift people out of poverty. We do think, still, that a lot of people, if this is where they are, they deserve to be there. Pull yourself up by your bootstraps. That whole notion still exists in our society, though.
Goldstone: Oh, yes. Oh, yes. Yeah.
Tavis: I digress.
Goldstone: It’s much easier to think of that when you’ve got a lot of money and you’re doing well yourself.
Tavis: Yeah. The new book is called “Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903.” You will not find a better case-by-case analysis of what the Supreme Court did over these years with a number of different justices to uneven the playing field even more than it already was. Lawrence, good to have you on the program.
Goldstone: Thank you so much.
Tavis: Thanks for the book.
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Last modified: April 26, 2011 at 12:28 pm