The Harm This Day Done

We just marked Constitution Day, the 229th anniversary of the signing of the U.S. Constitution in Philadelphia. The piece below was written in 1989 for the Castle Air Force Base paper by the then Captain Shannahan.


“…All persons born or naturalized in the U.S. and subject to the jurisdiction thereof, are citizens of the U.S. and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws…”
-The 14th Amendment, in part

The good guys do not always win. That unfortunate truth applies to the Constitution no less than other areas of life. The strength of the Constitution lies in its flexibility in accommodating change without losing sight of what the Founding Fathers intended this country to be. There are false starts and episodes of which we should not be proud, but even in most of these, there is a redeeming element of justice that eventually comes to the fore.

The 14th Amendment to the Constitution, enacted after the Civil War, defined what a citizen of the U.S. was. More importantly, it laid limits on the State’s power to take away the privileges of that citizenship. Perhaps most importantly, it enjoined the states to give “…equal protection of the laws…” to all their citizens. It was soon to be tested in the Supreme Court.

Homer Plessey was a Black man who was guilty of something most people young enough to be in the military would have a difficult time imagining, the crime of sitting in a railway car reserved for whites. He was arrested and during his trial appealed to the Louisiana Supreme Court to prevent the judge, John Ferguson, from continuing the trial, claiming the law segregating railway cars by race was a violation of his rights under the new 14th Amendment. The court refused and the U.S. Supreme Court agreed to hear the case.

Plessey lost and the doctrine of “separate, but equal” established that day was to blight the American conscience for over 50 years. Not since the Dred Scott decision stripped African Americans of the protection of the law had there been such a setback to the ideals this country was founded upon.

There was one lonely dissenting opinion, that of Justice John Marshall Harlan. “The Constitution is one law, over the whole nation. In respect to civil rights, common to all citizens of the U.S., does not I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. I deny that any legislative body or judicial tribunal may have regard to the race of those citizens involved.”

Justice Harlan stood in clear eyed opposition to those who would pretend that segregation was anything other than what it was. He pointed out the ugly truth of “state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens. That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana. The thin disguise of ‘equal’ accommodations will not mislead anyone, nor atone for the wrong this day done.”

Justice Harlan’s plea for tolerance and simple decency was to fall upon deaf ears. He died in 1911, too soon to see his dissent become the law of the land in 1954’s Brown v. The Board of Education of Topeka Kansas. Through decades of segregation, violence and struggle, Justice Harlan’s dissent stood as a beacon of hope for the future.

“We boast of the freedom enjoyed by our people above all others. But it is difficult to reconcile that boast with a state of the law which, practically, puts the bonds of servitude and degradation upon a large class of our fellow citizens, our equals before the law.” Like Dr. Martin Luther King’s speech 68 years later, in which he asked that we be judged “…not by the color of our skin, but by the content of our character.” The phrase “our fellow citizens, our equals before the law,” sums up what the 14th Amendment, and indeed this nation, is about.