Will Baude recently raised the question, why is the result in Brown v. Board of Education so important? He writes:
In the abstract, a legal interpretive theory ought to be able to say “theories generate results; results don’t generate theories.” In other words, it is a mistake to judge an interpretive theory simply by the moral goodness of the results it produces: If one had a theory of moral goodness sufficient to judge all of the results of an interpretive theory, one may as well just use it directly. Law’s promise is the ability to transcend moral disagreement.
And yet in practice almost every constitutional theorist feels the need to say that Brown is right. The two exceptions I can think of are Adrian Vermeule and Earl Maltz, though my very very small sample size suggests that the next generation of law students may not view Brown as similarly canonical.
This is a complicated question, but part of the reason people place so much emphasis on Brown is that they make it more important than it was. They treat the issue of Brown’s constitutionality as identical with the issue of Jim Crow’s unconstitutionality. If denying Brown meant that Jim Crow was constitutional, that is an extremely uncomfortable result. Of course, one might counter (as Will suggests) that the validity of a legal theory differs from the desirability of its results, but in the context of arguing for or against originalism, the view that originalism would allow such an enormous evil as Jim Crow just appears to be extremely problematic.
It is therefore important to note that the issue of the constitutionality of Brown is not the same as the unconstitutionality of Jim Crow. Even if Brown was not the original meaning, that does not mean that most of Jim Crow was constitutional. This is a true for a variety of reasons.
First, the case against Brown says nothing about the meaning of the voting rights provisions of the Reconstruction Amendments – the 15th Amendment and section 2 of the 14th Amendment. If blacks had been able to exercise the right to vote in the South, which those two provisions would have strongly supported had they been enforced, then blacks might have enjoyed much more political power and could have fought politically against Jim Crow. That by itself would have significantly undermined Jim Crow.
Second, the case against Brown involves two questions – whether separate but equal was allowed by the 14th Amendment and whether a publically provided education was a civil right. Start with whether separate but equal was allowed. The equality provision of the 14th Amendment – wherever one finds it – is ambiguous between one meaning of separate but equal and another meaning of no racial distinctions. There are strong reasons for the latter meaning, including that it is the likely meaning of the Civil Rights Act and that meaning better promotes the purpose of promoting equality between the races.
Third, the other question – whether receiving a public education was a civil right – is a more difficult question, but there is a reasonable case that such publically provided education should be treated as a civil right.
But whether or not public education is a civil right, a holding that separate but equal was unconstitutional would have meant that many aspects of Jim Crow – such as the segregation of railroad cars involved in Plessy v. Ferguson – were unconstitutional. Once again, Jim Crow would have been far different if those types of segregation had been outlawed.
The bottom line here is that Jim Crow involved a variety of state powers and that the original meaning would have attacked several of them even if one concluded that the original meaning did not fully support Brown. Even if Brown was not the original meaning, there is a strong case that the original meaning would have prohibited both the effective disenfranchisement of blacks and the segregation of many aspects of public life. (And of course Jim Crow involved not merely separate and equal, but separate and unequal, which is unconstitutional under all theories.) That by itself would have been a significant attack on Jim Crow.
In a future post, I will argue that recent scholarship has buttressed the case for concluding that the original meaning supports Brown.