The original U.S. Constitution (the 1787 text) explicitly endorses segregated schools and anti-miscegenation laws; effect on Brown and Loving?

Futurist

Ad Honoris
May 2014
18,752
SoCal
#1
What if the original U.S. Constitution (the 1787 text) would have explicitly said that U.S. states are allowed to segregate their schools by race as well as to have anti-miscegenation laws? In such a scenario--ignoring the butterfly effect, of course--are Brown v. Board of Education, McLaughlin v. Florida, and Loving v. Virginia all still going to be decided the same way that they were decided in real life? Or would some or all of these cases have been decided differently in this scenario--and if so, which ones?
 

betgo

Ad Honorem
Jul 2011
6,108
#2
At the time of the Constitution, almost all states had slavery. Most states did not have public schools, certainly not in the south. Later laws were passed making it illegal to teach a slave to read and write. So this is really impossible.
 

Futurist

Ad Honoris
May 2014
18,752
SoCal
#3
At the time of the Constitution, almost all states had slavery. Most states did not have public schools, certainly not in the south. Later laws were passed making it illegal to teach a slave to read and write. So this is really impossible.
This scenario isn't meant to be particularly realistic. That said, though, free Blacks did exist in the U.S. even back in 1787 (even if they were much rarer than enslaved Blacks were back then) and "five [U.S.] states in the period between 1787 and 1791 recognized a state’s obligation to provide a free and common public school education at the time of the Founding." :

https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1086&context=lr (page 558)

Thus, it would not have been completely unthinkable for the original U.S. Constitution to have such a provision. As for anti-miscegenation laws, AFAIK, they were very widespread back in 1787 and thus it would have been even easier to have an explicit U.S. Constitutional provision in 1787 that states that these laws are constitutional than it would be for segregated schools.
 

betgo

Ad Honorem
Jul 2011
6,108
#4
It's too unrealistic. The Constitution dealt with what the federal government could do. It did not deal with what the states had to do. If it had done so, it never would have been ratified.

Slavery was not an issue in 1787. Slavery became an issue before the Civil War, but mainly in terms of the expansion of slavery. Racial issues did not become important until after the Civil War when the slaves were unexpectedly freed.
 
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Futurist

Ad Honoris
May 2014
18,752
SoCal
#5
It's too unrealistic. The Constitution dealt with what the federal government could do. It did not deal with what the states had to do. If it had done so, it never would have been ratified.
That's the thing, though. The Tenth Amendment talked about the powers that were reserved for the states. Theoretically speaking, some of these powers could have been explicitly written into the text.

Slavery was not an issue in 1787. Slavery became an issue before the Civil War, but mainly in terms of the expansion of slavery. Racial issues did not become important until after the Civil War when the slaves were unexpectedly freed.
As for slavery, it's quite interesting that the original US Constitution took great care not to explicitly include the term "slavery." It was always discussed via euphemisms.
 

betgo

Ad Honorem
Jul 2011
6,108
#6
As for slavery, it's quite interesting that the original US Constitution took great care not to explicitly include the term "slavery." It was always discussed via euphemisms.[/QUOTE]

Yes, and the Confederate Constitution specifically used the words slave and slavery. However, the 3 provisions mentioning slavery indirectly all protect it.
 
Likes: Futurist

Futurist

Ad Honoris
May 2014
18,752
SoCal
#7
Yes, I know. That said, though, this didn't prevent abolitionist Lysander Spooner from arguing that slavery is unconstitutional--before the start of the American Civil War. Seriously--look it up.