Overlawyered: Chronicling The High Cost Of Our Legal System

Martin Luther King Day… and preemption?

If you’re looking for the most strained use of Martin Luther King, Jr., as a metaphor, look no further than a non sequitur at Bizarro-Overlawyered, where Kia Franklin calls on King’s memory as an argument against preemption. The historically minded will note the irony of invoking King’s name in a defense of states’ rights to subvert federal principles of uniform treatment. For more on preemption, see Greve and Epstein, POL March 2006, and POL on last week’s cert grants in preemption cases.

We’ll talk about King, too, but relate it to something he actually said: “I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” See posts Jan. 2007 and Dec. 2006, Heriot @ POL, Jan. 2006, and POL on the Akaka bill. As Chief Justice Roberts noted (and was criticized for noting) in the last term, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

(And update: don’t forget October 2006 on school discipline. Or October 2005 on why the great documentary “Eyes on the Prize” still isn’t available on DVD to the general public.)

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6 Comments

  • Ted:

    I don’t think King ever fought for uniform treatment. He fought for justice. If the uniform treatment was unjust, he would not have been in favor of it.

  • As Aristotle noted millenia ago, justice requires treating like cases alike.

    • By Ted

  • He rejected the dictatorship of technology, which, he said, diminishes people because it eliminates their sense of participation.

    The Internet is clear evidence of this.

    • By Seth

  • “I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” resonates with a primitive notion of fairness. The presumption in the quote is that fair tests would benefit King’s children. But the character of King’s son, Dexter, leaves a lot to be desired. Dexter actually hugged James Earl Ray.

    The 54 decision found that the disparity between the races in educational outcome was found to be caused by the segregation of schools,and a policy of integration was adopted by this country. But integration is not stable. We can not have mixing of races without some intervention. One would expect that anyone with the credentials of John Roberts would understand the dynamics of integration.

    In the early 50’s, Little Rock High School was a segregated, high achieving school. Blacks demanded access to the school under “me too”. Blacks had success as a legal matter, but not as a practical matter, as the school regressed after integration.

  • Thank you for highlighting my blog, but your analysis is a sad misstatement of my words and misinterpretation of King’s philosophies. Perhaps you did not read my blog carefully, because I acknowledged the positive effect that express preemption had on the implementation of civil rights laws, and compared it to the MISUSE of the preemption doctrine that we see today. I wrote that:

    …[Measures that] deform our civil justice system must be met with with effective reforms that would actually increase access to justice. This includes improvements like… cutting out loopholes in the court system like misuse of the preemption doctrine…”

    I’ve also previously said that:

    “federal civil rights legislation helped strengthen American civil rights by outlawing discriminatory practices that many states’ laws would have allowed. Today, however, preemption is increasingly used as a weapon to undermine state laws that protect public health and safety, and to eliminate provisions allowing persons to take violators of these laws to court.”

    I invite readers to actually read my post. I cite to King’s reflections on how the profit motive is taking over the rights of human beings. I also look forward to seeing adequate attention given to MLK and his philosophies on this website, as promised by Ted.

  • The irony remains. You’re arguing in favor of states’ rights, citing MLK.

    “States’ rights” are generally considered to be code words for racism these days.