Enforced Commingling

Consider the following paragraph:

"The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinity, a mutual appreciation of each other's merits and a voluntary consent of individuals.

That is, of course, from the majority opinion in Plessy v. Ferguson, one of the worst Supreme Court decisions of all time. And I don't just mean "worst" in a moral sense; the decision is staggeringly wrong, in a purely legal sense. It assumes that the Fourteenth Amendment cannot mean what its plain text would clearly imply, because that thing is just too inconsistent with the prejudices of many but not all people in society. It claims that segregation only "stamps the colored race with a badge of inferiority" because colored people are so damn sensitive, which as Justice Hugo Black would later point out was always ridiculous to any of the actual white supremacists who were responsible for segregation laws in the first place.

And then there's this passage.


I could just fulminate. Instead I'll use a little example, something I've had several professors mention of late: interracial marriage. Because it is incontrovertibly true that, in the sphere of marriage, the actual words about are, mutatis mutandis, true. You can't legislate intermarriage. "Enforced commingling" would be an absurdity. And natural affinity, mutual appreciation of merits, and voluntary consent of individuals are, you know, supposed to be the whole point of marriage. And the interesting thing was, in the mid-20th century as the broader civil rights movement raged, those conditions were clearly not there as to interracial marriage. Whites, of course, were dead-set against it. Favoring interracial marriage made you not just a liberal but a radical. But blacks didn't particularly want interracial marriage, either. Polls showed that intermarriage rights were among the lowest priorities of the African-American community, and that perhaps a majority of blacks were opposed to the idea. I can hardly blame them; white people were, after all, really racist, so who would want to marry one of them? So obviously the right answer was, as the Plessy court would suggest, to uphold all the anti-miscegenation laws until people wanted them repealed?

Um, no. Obviously not. Because repealing a law forbidding intermingling is not the same thing as enforced intermingling. And because a law forbidding intermingling prevents natural affinity, mutual appreciation, or voluntary consent from having any effect. It takes social equality out of the hands of individuals. In the realm of marriage, that means allowing anyone to marry anyone regardless of race. Once you do that, guess what? If you don't think blacks are equal, don't marry one. If you're a black person who thinks whites are racists who are oppressing your people, don't marry one. And they wouldn't! But some on both sides of the color line would be more open to the idea, and some of them would get married. And good for them; if you actually view social equality as desirable, there's no earthly reason to deny them their happiness. In practice this would probably have the effect of changing opinions and showing people that interracial love can be a real thing, and more and more people would intermarry until eventually it started becoming unremarkable. But maybe it wouldn't, maybe the prejudices would last and intermarriage would remain a fringe occurrence. Okay. Or, at least, okay so far as the law would have to be concerned. As the Plessy court recognized, you can't force people to associate with people they don't want to be associated with.

But that's not what desegregation would do! It would simply allow people to associate with people they did want to be associated with. Now, yes, it does--when combined with laws against assault, etc.--remove from people the ability to exclude from their presence when in public places people they don't like. But that's always true. If I have some reason to hate you, and we're on a train together, I have fairly little power to stop you from entering my railroad car. I could, perhaps, move to a different one, if I found your presence so noxious. Perhaps if I did so and then you followed me I might be able to complain about harassment. Or I could just try to make my presence noxious to you, perhaps by projecting my displeasure at your company very blatantly. All of those options are available to the aggrieved white dudes faced with the threat of black people coming into their railroad cars; the latter option in particular, I should think, they would not have found too difficult to implement. Prohibiting public interaction along the lines of all other public interactions to people of different races is necessarily to imply that there's something different about race. The very fact that courts and legislatures cannot guarantee social equality or eradicate private prejudice is itself what shows how remarkable an actual intervention by the government to prevent social equality and accommodate private prejudice is.

Now, I will admit, this analysis really is different in the specific case of school desegregation. That really is a matter of enforced commingling. And if we view children as extensions of their parents, I suppose that could be troubling: desegregation would force people, against their will, to intermingle their own self-extensions with those of people they despised. But we could still respond that sending one's child to a public school always involves accepting a certain lack of control over the identities of that child's classmates, so again, why should the government accept that race is different if not because blacks are inferior? The case becomes even stronger if we view children as their own people, because children are not born prejudiced. They are naturally forced by the school system to commingle with people that they did not choose, even if their parents sent them to a private school to get a certain set of classmates. If they are commingled with black people in the course of that, they will find it perfectly natural, which both reduces the sense of coercion against their preferences and, of course, should leave a legacy of non-prejudice.

What we see, overall, is that desegregation in no case forces people of one race to interact with people of another race on anything other than the terms on which they must already interact with others. In cases where individuals do have control over their own associates, such as marriage or even private clubs, they retain that control, and desegregation will not force them to tolerate people of different races. In cases where individuals are moving around in public spaces, such as train cars or public squares, they may make any attempts to evade another's presence as they would with a member of their own race, though with the exact same lack of guarantee of success. And, yes, in cases where a more intimate social commingling is enforced among different people who did not choose each others' company, the total lack of control over one's social peers will extend to a lack of control over their race. None of that guarantees social equality, it only means that individuals who feel a dislike for members of other racial groups will not conscript the government in protecting them from exposure to the people they dislike, as it never does for any other form of private dislike.