Why is Brown So Important?

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.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, will be published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. David Bernstein says

    The civil right that Harlan identified in his Plessy dissent, as I read it, is the “right to locomotion.”

  2. Kevin R. Hardwick says

    The issue with Jim Crow, it seems to me, is that Southern states were able to disenfranchise most blacks, but did not suffer any ill consequences for doing so. Had the southern states been willing to accept the consequences of disenfranchisement of a wide class of citizens–in the form of smaller congressional delegations in proportion to the numbers disenfranchised–then they could have proceeded constitutionally and legally, under article two of the fourteenth amendment. As I read the 14th amendment, any state today could, for example, disenfranchise all red-headed step children, provided that they accepted the adverse consequences of so doing. So surely the issue is not the constitutionality of disenfranchisement–that was then and remains now a lawful potential under the amended constitution. Or am I missing something?

    Thanks!
    Kevin

    • gabe says

      Kevin:

      Here is a question I asked of my friends at Nomocracy in Politics.

      Following Dred Scott which, in a nutshell, held that blacks were property, did any southern State offer to give up their 3/5th’s quotient of representation?
      I think not.

      Also, I doubt that our friends in Black Robes would look kindly on the disenfranchisement of “red heads”(unless, of course, they were also Christian anti-abortionists).

      • Kevin R. Hardwick says

        The language of article two, amendment fourteen, seems fairly direct and clear. Has it ever been further interpreted in subseqent law?

        One of the differences between the training of law professors and that of historians is that people like me are period-specific. In my case, my competence gradually diminishes after about 1820. Law professors tend to carry their competence forward through the present–a facilty for which I have admiration.

        I would much value knowing whether or not my reading of article two is accurate!

        Many thanks,
        Kevin

  3. R Richard Schweitzer says

    “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.”

    Leaving aside the issue of the meaning of “civil” as a modifier (or delineator ?) of the term “right,” we have to accept the fact that anything designated or classified as a “right” for some, is supported by, and requires for its existence, an offsetting obligation the part of others for either active conduct or constraints on conduct (or some mixture of the two).

    Under the structure of a constitutional republic of Federated states, the respective states have the authority to impose upon its inhabitants obligations of active conduct in following courses of learning for purposes of compulsory education. To support that imposed obligation the members of society comprising the state are required to take on obligations to provide those courses of learning and the means for their availability.

    If a state does not have compulsory education or a form of public education undertaken as an obligation of the state by its electorate, there would be no offsetting obligations on the part of the state.

    The essence of Brown has been to determine, by judicial fiat, how, and to what effect, the obligations of a state should be performed. Thus, judicial action has been co-opted into political action for the determination of social objectives to be sought in the performance of obligations assigned by an electorate to the government of their state.

    “. . . that meaning better promotes the purpose of promoting equality between the races.”

    Therein is another stage in the development of a Federal Administrative State as a “purposive enterprise” seeking social, economic and ideological objectives through politically determined means. Those who value the improvements and changes that have occurred, of whom this writer is one, have to accept that they come with a price. A part of that price is the replacement of some elements of a constitutionally determined structure with some elements of the “purposive enterprise” of a Federal Administrative State, which, in addition to its co-option of the judicial system, impacts individual liberty through a shift in the control over the “purpose,” imposition and performance of obligations.

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