The Supreme Court's Failure To Protect Blacks' Rights

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The Supreme Court's Failure To Protect Blacks' Rights

DAVE DAVIES, host:

This is FRESH AIR. I'm Dave Davies, filling in, today, for Terry Gross.

We're accustomed to sharp conflicts surrounding the U.S. Supreme Court:
political battles over nominees and policy debates over its rulings. Our
guest, Lawrence Goldstone, looks back at another period in history, when
he says a series of Supreme Court rulings undermined social progress in
the country for decades.

Goldstone writes about the post-Civil War era, when union troops
occupied the South, and four million former slaves were looking for
social equality and economic opportunity. It wasn't clear, initially,
whether they would enjoy full-fledged citizenship or would be subjugated
by the white population.

In the 1860s, it was the Republican Party in Washington, the home of
former abolitionists, that sought to expand the role of the federal
government and grant legal rights and social equality to blacks in the
South.

The Democrats of the day had broad support among white Southerners and
conservatives in the North. Abraham Lincoln had been assassinated, and
his vice president, former Democrat, Andrew Johnson, occupied the White
House.

A bloc of Republican congressmen, then dubbed radical Republicans,
managed to enact a series of constitutional amendments and
reconstruction acts which granted legal equality to former slaves and
gave them access to federal courts if their rights were violated.
Goldstone says that in a series of rulings, the Supreme Court undermined
those laws and laid the basis for years of lynchings and Jim Crow rule
in the South.

Lawrence Goldstone has written 12 books of fiction and non-fiction,
including two previous books on constitutional law. His new book is
called "Inherently Unequal: The Betrayal of Equal Rights by the Supreme
Court, 1865-1903."

Well, Lawrence Goldstone, welcome to FRESH AIR. Describe the political
dynamics of the day. Republicans in Congress, referred to as radical
Republicans at the time, wanted to remake the social structure and civil
rights of the South. Who was their opposition?

Mr. LAWRENCE GOLDSTONE (Author, "Inherently Unequal: The Betrayal of
Equal Rights by the Supreme Court, 1865-1903"): Their opposition, both,
were Democrats, who were the opposition party, and Andrew Johnson was a
Democrat. Lincoln, in an effort to be a healer in his second term,
actually chose, as a running mate, someone from the other party.

But many of the Republicans were not radicals but far more moderate.
What the radical Republicans wanted was probably the largest experiment
in social engineering ever undertaken. They wanted the federal
government to take these four million newly freed slaves and integrate
them fully into society virtually immediately.

They wanted equal access to theaters and to places of worship and to
cemeteries and to schools. They wanted full voting rights. They wanted
service on juries. They wanted these - they were called freedmen - to be
able to serve in government.

They understood that these newly freed slaves were not the most
sophisticated political body, but they believed that only when full
integration, full, forced integration, succeeded, could the country be
the United States that they believed the country had been founded to be.

What the radical Republicans tried to do was to remake the country, from
the central government out.

DAVIES: And between the end of the war and I guess 1875, there were a
series of federal actions. There was the 14th and 15th Amendments to the
Constitution. There was the Civil Rights Act of 1866 and one again in
1875, which essentially, if I'm right, conferred upon former slaves
these rights: the rights to vote, the right to nondiscrimination in
public accommodation, et cetera.

Now, what was happening on the ground in the South while these laws and
amendments were being enacted?

Mr. GOLDSTONE: Well, there were two reconstruction acts, and what they
did was set up military districts in the South, five military districts,
each run by a general.

And what the army did was to move in to the Southern states, obviously
mostly in the larger cities, and attempt to enforce the guarantees of
the 14th Amendment, which had then been codified in the various
enforcement acts and the reconstruction acts that Congress had passed.

DAVIES: And the guarantees of the 14th Amendment were what?

Mr. GOLDSTONE: Due process of law, which is a very vague term, as we
came to see later, and could be applied in a number of different ways,
and equal protection of the laws and also conferred citizenship on
anyone born in the United States.

DAVIES: And then what was happening among whites as these laws were
enacted, which conferred these new rights upon former slaves, and a
military structure was imposed to govern their territories?

Mr. GOLDSTONE: Well, when a foreign army, which was how they were viewed
by many whites, is sent in to your society to enforce a new code of
justice and to enfranchise people who had been disenfranchised and take
the people who had been running things and shunt them off to the side,
the resentments among the white population were intense.

And these resentments had legal implications, the rise of the Democratic
Party, a very strong emphasis on getting the army out and getting
states' rights restored, and then illegal implications, which was the
rise of terrorist groups like the Ku Klux Klan and a number of others.

So what was happening on the ground was if you were in a city, if you
were in a place where the army had power and had a force, blacks were
registering to vote, they were being elected to state and local and even
national office. Equal rights were being enforced. Schooling was made
more broad, and in many cases, integrated.

But if you were out in the countryside, the white power structure
remained pretty much intact because the army couldn't be everywhere.

DAVIES: So it was clear that there would be legal challenges to the
reconstruction acts, which gave new legal rights to freed slaves and
altered the social structure in the South. And it's interesting, as you
describe this, in some of the early challenges, the Supreme Court
actually upheld federal authority, right?

Mr. GOLDSTONE: Yes. They, the Supreme Court moved around quite a bit.
There was enormous political pressure coming from the radical
Republicans in Congress. When the court issued adverse rulings, there
was an outcry to the extent that many of the justices feared
impeachment, which is an almost impossible thing to achieve in normal
times.

So the court in some cases upheld the reconstruction acts. In most
cases, though, they avoided the issue by denying jurisdiction.

In fact, there was a case called Texas versus White, which was only
decided after the issue had kind of become moot, where the court more or
less admitted that the reconstruction acts were unconstitutional or
might have been unconstitutional because the Southern states had never
really seceded because secession was illegal.

So it was a very strange time for the court, which didn't really set
itself until the 1870s.

DAVIES: Right. So you had the court kind of letting the reconstruction
acts stand but essentially on technical grounds, without ever getting to
the core issues so much.

Mr. GOLDSTONE: Yes.

DAVIES: Ulysses S. Grant is elected president in 1868, and one of the
interesting things, in reading your book, was how much more turnover
there was in the Supreme Court than we're used to seeing in modern
times. I mean, it seems that every two or three years, a justice would
die or depart. Abraham Lincoln, Andrew Johnson, Grant all got a number
of appointees to the court. And that gave them, you know, in effect the
opportunity to put their own imprimatur on the body.

In general, what was the quality of the appointees, say from Grant on?

Mr. GOLDSTONE: I suppose that depends who you ask. As we moved later
into the 19th century, most of the appointees had corporate law
background. Chief Justice Morrison Waite, for example, was a corporate
lawyer, and he was Grant's third choice. And the nation described him as
firmly in the first rank of second-rank lawyers.

(Soundbite of laughter)

Mr. GOLDSTONE: And his successor, Melville Fuller, was described as the
fifth-best lawyer in Chicago, which was meant to be neither a compliment
to Fuller nor the city that he came from.

So there were a lot of appointments which, when we look back, seem to
have more to do with a political philosophy than with excellence on the
bench or brilliant legal analysis, but I'm not sure that that is very
different from the rest of our history.

And there were some very strong and very bright people and very able
people also appointed. John Marshall Harlan was appointed in 1877, and
he proved to be one of the great justices in Supreme Court history.

DAVIES: We're speaking with Lawrence Goldstone. His new book is called
"Inherently Unequal." We'll talk more after a short break. This is FRESH
AIR.

(Soundbite of music)

DAVIES: If you're just joining us, our guest is author Lawrence
Goldstone. He's written a new book about Supreme Court decisions after
the Civil War, which enabled Jim Crow laws. It's called "Inherently
Unequal."

Now, there was an important test of the reconstruction acts that began
in 1873, in a horrific incident on Easter Sunday in the little town of
Colfax, Louisiana. First of all, what happened?

Mr. GOLDSTONE: Well, Colfax was not particularly accessible. This was
one of the towns I referred to when I said the army really couldn't get
there. There was no real military presence.

It arose out of a disputed gubernatorial election between a Democrat,
who was a decorated Confederate war veteran, and a Republican who was a
carpetbagger. The election was clearly fraudulent on both sides.

It was unclear who won. Both, in fact, were declared the winner at
certain junctures. And then the issue was thrown the Louisiana courts,
which were dominated by Republicans, and the majority on the court voted
to put the man in their party in the governorship.

When the Republican was declared the winner, they kind of kicked the
white people out who were running the town. And the whites were deeply
resentful and came back in force, 250 men on horseback, many of them
members of the Klan and other terrorist groups, dragging a six-pound
cannon behind them.

Move into Colfax, Louisiana, and go to the center of the town, where 150
African-Americans, many in the militia, had created barricades, just
thrown-up barricades and dug a ditch.

Shooting started very quickly. It was clear that the blacks had no
chance, and they gave up. The white - the 250 white invaders, gathered
up all the weapons from their defeated captors and then proceeded to
slaughter them. Probably 150 black men were stabbed or shot or drowned,
many trying to run away and hide in the woods.

DAVIES: So what action then was taken against some of the whites
involved in these murders?

Mr. GOLDSTONE: A hundred of the white invaders were brought to trial in
federal court on the grounds of violating the African-Americans' right
to peaceful assembly. They couldn't be brought up on a murder charge
because that is a state crime. So they were brought up on the federal
charge of denying the right, a constitutional right that is in the Bill
of Rights.

And of the 100 who were indicted, three were convicted. And these three,
one of whom was a man named Cruikshank, who was a nonentity, as far as
anyone could tell, appealed to the Supreme Court on the basis that the
Civil Rights of 1875, which seemed to incorporate the Bill of Rights
into state law, into the actions of people within states, was
unconstitutional.

The court, under Morrison Waite, the first rank of second-rank lawyers -
this was his first major case - ruled that no, the Bill of Rights does
not apply to the states. They took a very narrow view of the 14th
Amendment.

If it is not specifically delineated in the 14th Amendment, it does not
control the actions of private people. There was no such thing in this
case as implied rights.

And as a result, because these actions were not the actions of the state
and because, incredibly, Waite ruled that despite the fact that 250 had
slaughtered 100 black men, there was no proof that there was any racial
motivation, Waite ruled in favor of the defendants, and the three white
men went free.

So for one of the most horrific crimes in American history, not a single
person was punished.

DAVIES: So one of the legal issues here was whether these men could be
tried in a federal court, as opposed to a state court. And you make the
point in the book that before the Civil War, the federal government had
far less reach into our lives. It was unusual for people to be brought
to federal court.

But among the provisions of the reconstruction acts were that these
violations of rights would be subject to justice in a federal court.
That was denied here. So these guys go free.

What was the practical effect of this ruling?

Mr. GOLDSTONE: Well, once the justices had said the 14th Amendment
applies only to the actions of a state, that the actions of private
people are not covered by the amendment, then all people had to do in
the South was to behave as private people.

There was another case a few years later, which was called the Ku Klux
Klan case, where, in the enforcement act, one of the enforcement acts,
it said people couldn't go in disguise on public roads, you know, to
violate the rights of other people, and the court again ruled, and these
people were brought up in federal court after beating a prisoner to
death, the court again ruled that private people were exempt from the
protections guaranteed in the 14th Amendment.

So if it wasn't a state law - and then amazingly, in a series of
rulings, the court ruled that the state had to announce that it was
being discriminatory. Implied discrimination, effective discrimination,
de facto discrimination - that wasn't covered, either. So this slow
strangulation of the 14th Amendment rights for black people created an
atmosphere where whites understood that all they had to do was not
announce that they were discriminating, and they could do pretty much
anything they wanted, and they did.

DAVIES: Now, in a case where 250 whites surround and slaughter, you
know, more than 100 blacks, and then the Supreme Court goes through
these, you know, contorted legal arguments to then excuse them from
justice in the federal courts, what was the reaction in northern
newspapers, in Northern public opinion to these actions by the court?

Mr. GOLDSTONE: There was cheering. Although the Colfax massacre, or the
Colfax riot, depending on what your political point of view, was - took
place in 1873, the ruling of the court did not come down until 1876, by
which time the Civil Rights Act of 1875 had been passed, and this
mandated equal accommodation in places where most white people didn't
want it: theaters, places of amusement, hotels, conveyances on land or
water.

And the editorial outrage against the Civil Right Act of 1875, which was
kind of a valedictory of the radical Republicans, was enormous. The New
York Times wrote that the passage of the Civil Rights Act of 1875 set
back the art of governing men 200 years.

So the resentment against forced integration, in the North, as well as
the South, made the United States versus Cruikshank decision, which was
the Colfax decision, very popular because what the court was saying was:
The federal government has no reach, had limited reach. Get the federal
government out of the business of telling people and states what to do.

So it was an extremely popular decision. There was some dissent. But the
Colfax massacre, although decried as an act, was applauded as a Supreme
Court decision.

DAVIES: So there was really little appetite, even in the North, for this
extensive federal effort to remake the social structure of the South.

Mr. GOLDSTONE: Remarkably little appetite, and it faded quickly. It was
very expensive. You had soldiers. The army was - had to obviously remain
staffed up, to have this occupying army have any impact. And the notion
of being forced to sit next to a black person at a restaurant in New
York was abhorrent to most whites in America.

And as a result, by the way, the Democratic Party in the North began to
make enormous gains also. So it was clearly something where the
population of the country had moved against this idea of equal rights,
and the court, with its series of decisions, which neutered, certainly,
the Civil Rights Act of 1875 and eventually declared it
unconstitutional, was very, very popular among a vast segment of the
American society.

DAVIES: All right. So in general, in the body politic, there wasn't
great support for integration and for reconstruction in the South. But
you also write about intellectual currents, which affected the thinking
of the educated and legal scholars, in particular Darwinism and its
application to social relations. What - explain what was going on.

Mr. GOLDSTONE: What happened was a number of thinkers took Darwin's
theory of natural selection, which as most people know, is a slow
process of individual mutation, and applied it to society as a whole.

Herbert Spencer, who was an Englishman, was the first major theorist of
social Darwinism. In fact, he was the one who coined survival of the
fittest, not Darwin.

And what social Darwinism said was: If you were doing well in society,
it was because you deserved to do well, you were more fit. If you were
doing poorly, it was because you deserved to do poorly.

Well, white people were doing well, by and large, and black people were
doing poorly, by and large. So if you were a proponent of social
Darwinism, as John D. Rockefeller was, as Andrew Carnegie was, as Oliver
Wendell Holmes was, you believed that the racial structure of the
country reflected, not a series of discriminatory laws, but simply the
way it was shaking out according to the natural evolution of the
species.

And if you believed that, the last thing you wanted was a series of
progressive laws forcing integration, forcing this inferior group into a
position where they become more dominant in society, because that waters
down society for everyone.

Now, this is a very, very convenient theory for the rich and was - when
Herbert Spencer came to the United States, Andrew Carnegie dealt with
him like a coming messiah, as did John D. Rockefeller.

DAVIES: Lawrence Goldstone's new book is called "Inherently Unequal."
He'll be back in the second half of the show. I'm Dave Davies, and this
is FRESH AIR.

(Soundbite of music)

DAVIES: This is FRESH AIR. I'm Dave Davies, in for Terry Gross, back
with writer Lawrence Goldstone. His new book "Inherently Unequal,"
argues that a series of Supreme Court rulings in the post-Civil War era
effectively revoked laws and constitutional amendments that granted
equal rights and the protection of federal courts to former slaves. The
rulings, Goldstone said, paved the way for decades of lynchings and Jim
Crow rule in the South. At the time, the Republican Party favored the
extension of legal rights to African-Americans. The Democratic Party was
more conservative and supported by white Southerners.

We've talked about how the political climate was not particularly
accommodating to, you know, rights of freed slaves in the South, and how
there were intellectual occurrence which justified racism. In terms of
what was actually happening on the ground, the presidential election of
1876 was critical, right? This was the case where Republican Rutherford
Hayes runs against Democrat Samuel Tilden. Tilden wins the popular vote,
but the electoral vote depends upon disputed outcomes in three Southern
states: Louisiana, South Carolina and Florida. What happens?

(Soundbite of laughter)

Mr. GOLDSTONE: Because of the dispute - now, most historians and most
people at the time thought Tilden had won. There were 20 disputed votes,
19 of them from the three Southern states you mentioned, and one, I
believe, in Oregon. In order for Hayes to win, he had to get all 20.
They set up commissions. They studied, and eventually these commissions
were prepared to throw the election to Hayes.

In order to resolve what promised to be an enormous constitutional
crisis and a - potentially, a tinderbox which could lead to a second
Civil War, people - armed people were massing - the federal government
appointed a 15-man commission. There were seven Republicans who were
going to vote for Hayes. There were seven Democrats who were going to
vote for Tilden. That left the 15th member. And to fill that slot, newly
appointed - a recently appointed justice, Joseph Philo Bradley. And
Bradley was a Republican, and proceeded to pick the man of his party.

DAVIES: But wasn't there, essentially, an understanding that if Hayes,
the Republican, were given the White House in this disputed election,
that, in effect, the federal Reconstruction effort in the South would be
abandoned?

Mr. GOLDSTONE: Yes. What happened was when it appeared that Hayes would
win, the Tilden forces were, of course, furious, and the threat of armed
conflict became larger. So what the Hayes people did was agree to - if
the Tilden people were willing to withdraw their objections, which they
subsequently did, the Hayes administration, who had - and Hayes had run
on a platform of, more or less, equal rights – he was a Republican –
agreed to withdraw the Army from the South, end the Reconstruction Act,
dissolve these five military districts, pull the Army out and let the
Southern states, in effect, govern themselves. And that is what
happened.

DAVIES: So, in effect you have the kind of the federal muscle
withdrawing from the South, and then the court, as you write, providing
a legal basis for all kinds of discrimination against African-Americans.

I thought we would discuss just one more case. This was a case that
challenged all-white juries in the South. The Rives case? Am I
pronouncing it correctly?

Mr. GOLDSTONE: Yes.

DAVIES: Yeah. Tell us what happened there.

Mr. GOLDSTONE: Well, there were two cases that came down at the same
time, this very interesting pair. You can't really separate them. The
first was a man named Taylor Strauder, who was a black man, who was
accused of murdering his wife, which he freely admitted to, and
moreover, said he was justified in killing her because his wife had been
sort of obsessively unfaithful, sleeping with almost every man in town
and bringing shame upon her husband.

The white power structure in West Virginia kind of agreed with him,
because they put him in jail, but didn't bring him to trial. They only
brought him to trial when his lawyers petitioned to have him released.
He was convicted by an all-white jury and sentenced to hang. His lawyers
appealed to the West Virginia Supreme Court and said, hey. Strauder was
entitled to kill his wife. The only reason he was convicted was because
West Virginia juries were too bigoted to acquit him, and West Virginia
juries were all-white by statute. This was a statutory prohibition on
African-Americans sitting on juries.

The second case, the Rives case, involved two African-American brothers
who had killed a white man, and they were also to be tried by an all-
white jury in Virginia, except this all-white jury was white not because
the statute said so, but because of all the little contrivances that the
white power structure had put in to keep black people off juries.

It was a federal judge named Alexander Rives who wanted to impose equal
rights, and he took the brothers in custody and said he was removing the
case to federal court. Virginia sued. The two cases came down one after
the other. In Strauder, the court ruled that Strauder had, in fact, been
discriminated against because the West Virginia statute said no blacks
can be on juries.

In Rives, however, and they were – the opinion was written by the same
justice. They said there was no discrimination in the Virginia law
because nothing specific said that blacks couldn't serve on juries.
There was no way to prove racial discrimination. The fact that there
were no black people on juries in Virginia was something that the court
evidently considered coincidental.

So what Strauder said was if you announce that you are going to
discriminate, that is in violation of the 14th and 15th Amendment. And
Rives, the very next case said if you don't denounce that you are
discriminating, you can do pretty much anything you want.

DAVIES: And so what was the impact of that?

Mr. GOLDSTONE: Well, the impact, of course, was the Southern states
understood that all they had to do was to draft laws in a circuitous
sort of way, and they would pass muster with the federal court system.
And this eventually - after the Civil Rights Act of 1875, was declared
unconstitutional - resulted in every single Southern state redrafting
their constitutions, white, Democratic majorities in these legislatures
redrafting these constitutions in such a way that blacks were absolutely
and completely disenfranchised.

I'll give you one example. In Louisiana in 1897, there were 130 African
– 130,000, excuse me - African-Americans registered to vote. A new
Constitution was passed in 1898. It was not sent to the people for
ratification, but just passed by the legislature. Two years after that,
by 1900, that 130,000 African-American voting block had been reduced to
5,000.

DAVIES: You write that there were other decisions on issues like public
accommodation, whether somebody could ride on a streetcar. There were
issues about blacks getting on voting rolls. And in case after case, the
Supreme Court found some technical grounds for not enforcing bans on
discrimination. Taking the broad picture overall, what was the
cumulative impact of all of these decisions on social relations in the
South on the lot of the freed slaves?

Mr. GOLDSTONE: Well, all you have to do is to look at the rise of Jim
Crow and the ability of Southern state governments to segregate, to
discriminate, to imprison without trial, to beat to death, to lynch
without anyone ever being brought to justice. And if you look back and
you say, well, how could this be possible with these three - equal
rights amendments on the books, it was only possible because the court
had very slowly chipped away at those amendments. Because the court
can't declare a constitutional amendment unconstitutional. It's in the
Constitution.

The only way to make it ineffective, to render it moot, is to narrowly
define the amendment, and do so in such a way as to say that it doesn't,
in fact, cover this aspect of equal rights or that aspect of equal
rights. No, yes, that you can't infringe the right of a black man to
vote, but if a black man somehow can't get to vote, that's beyond the
range of the amendment or the federal government to do anything about it

DAVIES: Our guest is Lawrence Goldstone. His new book is "Inherently
Unequal."

We'll talk more after a short break. This is FRESH AIR.

(Soundbite of music)

DAVIES: If you're just joining us, our guest is author Lawrence
Goldstone. He's written a new book about Supreme Court decisions after
the Civil War, which enabled Jim Crow laws. It's called "Inherently
Unequal."

When the court was rendering these decisions which, in effect empowered
Southern whites too brutally, you know, subjugate former slaves, what do
we know about the personal beliefs and motivations of the justices who
crafted these decisions? What were they up to?

Mr. GOLDSTONE: Many of them - you know, it's easy to say, well, they
were all racists. And many of them were, by today's definition. Most
were not any more racist than the vast majority of Americans. Curiously,
most of the justices, or many of the justices, were - that - who were
appointed came from New England, known for an abolitionist stance.
Either they were from New England or had been born in New England.

Their views, whether or not they were actually social Darwinists, when
they wrote their private papers, it was clear that they viewed black
Americans as a somehow inferior race. It wasn't that they weren't human,
but they were kind of a different sort of human. And while they deserved
certainly not to be slaves and they deserved certain rights - they
should be able to work and enter into contracts - the notion of having
them on an equal plane with the white race was anathema.

Even John Marshall Harlan, who wrote the famous dissents in the civil
rights case and the equal - separate-but-equal case, Plessy versus
Ferguson - said in one of those opinions that the white race dominated,
and he expected it to continue to do so. So the racial views of the
justices were pretty much the same as the racial views of most white
Americans.

DAVIES: You know, as I read the story, there's a sense of inevitability
to it. I mean, when you look at, you know, the determined opposition of
Southern whites and the indifference of Northern whites to the efforts
to grant equal rights for former slaves, this just seems like it was
going to happen.

And I wonder if, you know, if there had been five justices on the
Supreme Court who were guided by conscience and thought with legal
clarity and had the gumption to rule that these laws meant what they
said they did, that, you know, access to due process of law, access to
the right to vote, to public accommodation were to be granted and that
victims of discrimination could get effective relief in federal courts -
if all that had happened and the court had ruled for - ruled in that
direction, despite all of the political forces going the other way, what
do you think would've happened?

Mr. GOLDSTONE: Well, of course, you can't know for sure. But let's look
at Brown versus Board of Education. 1954, the country was probably
somewhat less racist, but it wasn't completely not a racist country. We
still had the dominant Democratic Party. Most of congressional
committees were run by long-term Southern Democratic either senators or
representatives. Brown was not particularly popular in places in the
North, as well as in the South, and initially, it didn't have a lot of
impact. It - but it was the beginning of a process that not only led to
school integration, but led to a rethinking by white America about black
America – at least a lot of white America.

So I don't know that the court could, by itself, have changed the course
of white thinking. But it could certainly have made an effort to change
the course of white law, and in doing so, may have helped create an
atmosphere where white Americans actually started getting used to black
people and started getting used to having black people in the workplace
and started getting used to having black people in the same restaurant
or in the same theater. And my sense is that no, maybe it wouldn't have
been better. But when you look at Jim Crow and you look at the lynchings
and the burnings and the horrible things that happened, it hardly
could've been worse.

DAVIES: You know, there's a lot of talk today about originalism, about,
you know, adhering to the purest beliefs of the founders. To what extent
were the rulings that enabled the Jim Crow laws similar, hearkening to
that notion?

Mr. GOLDSTONE: They were eerily similar. Every single ruling by the
court that limited or annulled a provision of the constitutional
amendments, or laws that were passed to give teeth to those amendments,
was done on the basis of a strict reading of the Constitution. This is
what the words say. This is what it means.

So this conflict between textualism - what it said or what you thought
it said - and a notion that we are a nation of fundamental justice and
not a notion that parses subordinate clauses, that conflict was played
out in the late 19th century, and it's being played out today. And what
you have in this period is a series of decisions that are repugnant to
most Americans, but they were rendered on the basis of strict
construction.

DAVIES: There's one other question about this notion of originalism.
What - we talked about how the notion that you can go back to the
original intent of the founders of the Constitution may not be a useful
way to look at law because it has to be flexible, and all of the
situations and challenges that the Republic would confront could not
have been anticipated by the framers.

That said, as you've looked at, you know, legal history, are there not
times when there's a value to going back to the original words? Because
after all, laws are words, words have meaning. And are there cases where
there's a value to saying have we not created some kind of legal
superstructure that really takes us far beyond the intent of the
original laws?

Mr. GOLDSTONE: I agree completely. This is a continuum. This isn't a
question of two absolutes. This isn't a question of you either follow
the Constitution absolutely, positively, immutably, or you throw the
Constitution away and just decide what you think. There are cases - most
cases, of course - where a justice will go to the Constitution or
another statute and say this is what the statute means.

My problem is this people anointing themselves as the only authority. In
fact, every judge is an activist. They are doing their best - we hope
they are doing their best - to interpret the law in the way they think
is the most objective. Now, in practice, of course, it tends to be more
subjective. But the idea that nine justices of varying political
persuasions are getting together in a room, and one of them is saying I
think the Constitution means this and the other one's saying I think the
Constitution means that, and coming to majority vote, I think that's
just fine.

It is - the issue is not whether or not we throw the Constitution out.
Of course we shouldn't. And the issue is not whether or not we simply
make laws out of the air because we like the social import of them. No,
we shouldn't do that, either. But we should also recognize that people
who read the Constitution differently than we do are not necessarily
subverting the law, but are simply seeing the law in a different way
than do we. And I believe that if we could start doing that and looking
at views counter to our own in some reasonable way and not just assume
nefarious motives by people who disagree with us, we might be farther
along as a country right now.

DAVIES: Well, Lawrence Goldstone, it's been interesting. Thanks so much.

Mr. GOLDSTONE: Thank you.

DAVIES: Lawrence Goldstone's book is called "Inherently Unequal: The
Betrayal of Equal Rights by the Supreme Court."

Coming up, Ken Tucker on the new album from the band Dolorean.

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Dolorean: 'Unfazed' By Life's Challenges

DAVE DAVIES, host:

Dolorean is a Portland, Oregon-based band that started out playing
country rock that's been compared to music acts ranging from Townes Van
Zandt to Neil Young, but they move steadily into pop music territory.
The band's new album, called "The Unfazed," is their first in nearly
four years.

Rock critic Ken Tucker has a review.

(Soundbite of song, "If I Find Love")

DOLOREAN (Rock Band): (Singing) Thirty years, I'm nearly halfway home.
More or less, I'll never know. Well, my heart's been broken, but my
heart's still strong. If I find love, I won't let go. If I find love, I
won't let go.

KEN TUCKER: Dolorean lead singer Al James sings: If I find love, I won't
let it go. It's a measure of his vocal dexterity that he manages to make
that conditional phrase sound wistful and - from the way he mashes the
last five words together - both hopeless and hopeful.

Conflicted is Al James' default mode. On that same song, "If I Find
Love," he admits: The trouble is, I've been on both sides - been a
jealous husband and with others' wives. And yet, emerging from soggy
Oregon after four years of touring and writing, Dolorean does not sound
dolorous. The band's music is deliberate, but not maudlin. Its brooding
has a stand-up-straight backbone.

(Soundbite of song, "Hard Working Dogs")

DOLOREAN: (Singing) Drunken sailors run as pure lightning, enjoying each
morning. It's the middle of the night, and your phone keeps ringing.
It's your new life calling. You pick it up and let it go to the machine.
Either way, there's no denying. Best of intentions never win out over
true love's brutal timing.

We wash the hands of it. The word love is frightening. Love is
frightening.

TUCKER: That's the kind of music that gets Dolorean compared to Neil
Young, with its "Down by the River" guitar chords and the way Al James
curls his voice up into a keening, but polite wail. What distinguishes
the song most is the way the lushness of the melody contrasts with the
rumination and the lyrics. This is even more meticulously apparent in
another song about squabbling lovers called "Thinskinned."

(Soundbite of song, called "Thinskinned")

DOLOREAN: (Singing) It only takes one bird under the shadow. And you and
I, babe, oh, we do battle. Seems like we're just too thin-skinned, thin-
skinned, thin-skinned, thin-skinned.

I've got my brother's car...

TUCKER: I can't believe it would be better if you were tough as nails
and I was tough as leather, sings Al James in the refrain. James is a
sensitive singer-songwriter in the best sense: He describes his own
emotions, yes, but he also seeks to get under the skin of the person
he's involved with.

Specifically, he says, I'll do my best to see your point of view if you
do your best to see that I'm not such a bad guy. This is, of course, the
stuff of a thousand self-help, couples-therapy books, so what makes
James' insights useful is the music that underpins them. And what the
Dolorean quintet offers is mood music that summons up the states of
romantic frustration, confusion and curiosity - with few traces of self-
pity.

(Soundbite of song, "Sweet Boy")

DOLOREAN: (Singing) A lie when we met. It was an honest mistake. I said
I could wait for your past to fade away. I had no idea what I was
talking about. Hey, what a sweet boy you made of me now.

Late sunrise...

TUCKER: The sweet boy in the title of that song is the narrator himself.
It's a variation on the old idea that the love of a good woman makes him
a better man: Oh, what a sweet boy you've made of me. This is stated
over a slow rhythm that's almost a dragging waltz. The entire creation
is potentially insufferable, but Dolorean has a way of making such music
rich and sweet.

On the title song of this album, "The Unfazed," Al James recites a list
of things he's unfazed by: Unfazed by pain, unfazed by love, he sings.
He's also unfazed by jokes with no punch line and live until he dies. It
can seem, on a first listen, that Dolorean's new album is a slow-paced
journey into Al James' navel, but he's unfazed by that, too.

He knows that as you continue to listen, you're going to get caught up
in the things he's caught up in - trying to put to music the clutter
that comprises a life together. And he's unfazed by that daunting
challenge, too.

DAVIES: Ken Tucker is editor-at-large for Entertainment Weekly. He
reviewed "The Unfazed"' by the band Dolorean.

You can join us on Facebook and follow us on Twitter @nprfreshair. And
you can download podcasts of our show at freshair.npr.org.
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