In my prior post, I noted that the unconstitutionality of Jim Crow is often mistakenly considered to be identical with the constitutionality of Brown. In this post, I want to note some new evidence that provides additional support for the constitutionality of Brown under the original meaning.
As I noted, there are two issues concerning Brown that raise questions under the original meaning. First, is separate but equal constitutional or does the Constitution forbid such laws as racial discriminations? Second, is the right to attend a public school a civil right or otherwise within the scope of the 14th Amendment equality requirement?
The leading article on the constitutionality of Brown under the original meaning is Mike McConnell’s paper, which presented a range of evidence to support both points. Also significant is John Harrison’s paper, which argues as well for both points in a wider treatment of the 14th Amendment. But there have been new arguments that have been made in the last several years that provide additional support.
First, my own paper, published last year on Originalism and the Colorblind Constitution, helps to support the argument that separate but equal was not considered constitutional as to public education. One of the most common arguments for separate but equal comes from the segregated Washington D.C. public school system that was operated under Congress’s supervision. If Congress segregated (or allowed the segregation of) the DC schools, then how could the 14th Amendment have forbidden it? In the paper, I argue that legislation passed by the Congress should not be read as informing the meaning of the equality requirement of the 14th Amendment. The 14th Amendment equality requirement was not applied to the federal government and therefore one cannot assume that the Congress was reflecting its views of the Amendment when it passed legislation. Thus, if Congress’s actions with respect to the D.C. public schools did not involve an interpretation of the 14th Amendment, this piece of evidence becomes much less 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.
Over at the Originalism Blog, Mike Ramsey has a great critique of Erwin Chemerinsky’s attack on Originalism. As Mike points out, Chemerinsky’s attack includes some very weak points, including the claim that the Constitution’s use of the term “he” means that under originalism women could not serve in office. Alas, attacks on originalism often engage in bad originalism.
The strongest Chemerinsky point that Mike discusses is the former’s claim that under originalism, Brown v. Board of Education was wrongly decided:
The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. Under Justice Scalia’s theory of originalism, Brown v. Board of Education was wrongly decided.
Not so, according to Michael McConnell. The Reconstruction Congress did not pass a statute segregating DC schools; the DC segregation was done at the local administrative level. And, as Professor McConnell further shows, there are good originalist arguments in favor of Brown’s result. Not every originalist accepts them, and of course Dean Chemerinsky isn’t obliged to, but it is not obvious that Brown is inconsistent with originalism (and in any event the statute he relies on as his sole support didn’t exist).
Without discussing the entire Brown question, let me add an additional point. Even if the Congress had passed a statute allowing or requiring segregation of the schools in Washington, D.C., that does not necessarily tell us what the meaning of the 14th Amendment was. The equality requirement of the Amendment – whether derived from the Equal Protection Clause or the Privileges or Immunities Clause – did not apply to the federal government. Thus, the federal government’s actions cannot be assumed to reflect its views of the meaning of the 14th Amendment.
The 59th anniversary of Brown v. Board of Education should recall what that great decision did not do—overturn the racial segregation precedent of Plessy v. Ferguson (1896). Only by revisiting Justice Harlan’s classic dissent would segregation and Jim Crow in the law be finally overcome. Moreover such a Court opinion in Brown would have given civil rights laws a principled dignity and as well promoted an originalist jurisprudence that both protected individual rights and restrained government. This jurisprudence would be based on the Declaration of Independence.
Indeed, the brief for Homer Plessy argued that “The Declaration of Independence … is not a fable as some of our modern theorists would us believe, but the all-embracing formula of personal rights on which our government is based.” It is the “controlling genius of the American people.” And prior to the Plessy setback, as Charles Lofgren shows in his meticulous The Plessy Case (1987), this argument helped win anti-segregation suits at the state level.
Roe v. Wade remains, for us, the most contentious decision of our Supreme Court. Here’s the advice of our Supreme Court: The opponents of Roe should get over it. In its opinion in Planned Parenthood v. Casey (1992), the Court explained:
Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
The rare, comparable case that the Court highlights in Casey is Brown v. Board of Education. Reversing Brown and restoring the constitutionality of segregation would throw the nation into confusion and chaos. And that means that Brown has “rare precedential force.” The burden of proof that could lead to its reversal is more severe than other precedents. It would require “the most convincing justification.” The Court claimed to authoritatively resolve the controversy that produced a national division by binding the country together through a common constitutional mandate.