Posted: August 30, 2001
y the 1950s, breaking the color barrier had become a moral imperative in America. Chief Justice Earl Warren's 1954 opinion in Brown v. Board of Education, whatever its shortcomings, provided a benchmark in constitutional law that was used to strike down not merely school segregation but the entire constitutional underpinnings of Jim Crow.
Today, scholars generally agree that the heavy lifting of desegregation came in the '60s, after the Civil Rights Act (1964), the Voting Rights Act (1965), and the Elementary and Secondary Education Act (1965) gave new enforcement weapons to the executive branch. But without the reversal of 70 years of precedent that was accomplished on the authority of Brown, the stage would not have been set for the later achievements of the civil rights movement.
Brown added to the momentum of civil rights in another important way as well. Arriving at the very beginning of the television era, the scattered early efforts to enforce Brown across the South gave rise to a series of disturbing images of composed black children facing hateful white mobs. The effect was stunning. As James T. Patterson, Ford Foundation Professor of History at Brown University, writes in his new study of Brown, "Most white Americans in 1950, as in the past, did not much bestir themselves to better the plight of blacks. But seeing the ugly Southern backlash against Brown raised national consciousness in a way that a library of written description and exhortation could never have."
Patterson's book is richly illustrated, and vividly populated with heroes and villains. But the book is subtitled, "A Civil Rights Milestone and its Troubled Legacy," and there are several distressing aspects of that legacy which receive little or no attention. Patterson artfully dances around the fact that Brown was handed down without any firm constitutional foundation and that Earl Warren's opinion made no effort to supply one.
The constitutional question was simple: could the 14th Amendment, adopted in 1868, reasonably be understood as commanding that pupils not be assigned to public schools based on race? Or to put the matter somewhat more generally, was it the case that the Constitution, as amended, forbade government to discriminate among persons on the basis of race in the delivery of public services? The answer of the specialized literature is overwhelmingly "no" to both. As one commentator recently put it (at the beginning of a doughty but ultimately unpersuasive effort to demonstrate the contrary) "in the fractured discipline of constitutional law, there is something very close to a consensus that Brown was inconsistent with the original meaning of the 14th Amendment, except perhaps at an extremely high and indeterminate level of abstraction." Why does this continue to matter?
First, because legal insiders understood Brown at once for what it was—a kind of noble judicial coup. However distasteful, Jim Crow by 1954 had become a major feature of the American social and legal landscape, assumed to be constitutional for the better part of a century. In effect, Chief Justice Warren claimed for the Court the ability to revise the Constitution based on a bold understanding of what the times demanded, backed up by the authority of modern social science. It was a message that inspired and mobilized an entire generation of young lawyers. If the Court could free itself from history and precedent to work this kind of change, what other marvelous reforms might it undertake?
Moreover, it was in the course of enforcing Brown in 1958 that a unanimous Court in Cooper v. Aaron advanced sweeping new claims for its own authority. The Court's decisions, it proclaimed, were to be regarded as the supreme law of the land, binding on all state officials by virtue of the supremacy clause of Article VI. To add gravity to this amazing dictum, John Marshall's opinion in Marbury v. Madison was brazenly reinterpreted in order to prove that the Court's opinions were as authoritative as the Constitution itself. The scholarly community reacted with muted shock and surprise. But far from retreating from the claims made for themselves in Cooper, the justices since have repeatedly underscored them.
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Let us be clear: what we face today is nothing less than a fundamental alteration in the nature of American governance, with unelected judges assuming control over many of our most contested policy issues. We can no longer give an account of ourselves in thorough-going republican terms, at least not with a straight face. An honest account must recognize that we have become a mixed regime, with a substantial aristocratic or pseudo-aristocratic dimension. This is part of Brown'stroubling legacy.
Second, Brown proved to be a thoroughly inadequate text for the multiple uses to which it was put. Everything was desegregated on the authority of Brown. In the years after 1954, the Court decided cases on the constitutionality of state-sanctioned segregation of city golf courses, swimming pools, restaurants, and public buildings. In each instance the Court's answer was the same: unconstitutional, no opinion, "see Brown v. Board of Education."
But, of course, if one did consult Brown, what one discovered was the famous holding of the case: separate but equal has no place in education. Patterson repeatedly refers to Brown as overruling Plessy v. Ferguson (the 1896 case establishing the separate-but-equal precedent). But it certainly did not do so on the basis of Warren's opinion, which appears simply to create an exception to Plessy in the area of education. Where was the broader principle that rendered unconstitutional all state-commanded racial segregation?
It was only in the last of the desegregation cases, Loving v. Virginia, which struck down that state's anti-miscegenation law in 1967, that the Court attempted to offer something more than "see Brown." Again, Warren wrote the opinion, sketching what remains the Court's operational test for unconstitutional racial discrimination. In this formula, as it has developed over the years, race is a "suspect classification"; any government decision taking race into account must be in the service of a compelling state interest; there must be no alternative means by which that interest can be narrowly tailored to secure just the necessary degree of protection for the compelling interest.
This test is an intellectual disaster. The categories (compelling interest, available alternatives, and tailoring of program) are not legal categories at all, but essentially political judgments about wise public policy. That is why the strict-scrutiny standard remains essentially mysterious. The Court will swing back and forth in cases involving racial preferences in areas such as university admissions, government contracting, and legislative districting, depending (right now) upon the vote of Sandra Day O'Connor, who alone (perhaps) understands what she means by the key terms.
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Sadly, the historical moment has passed. Consider how much better off we would be today with a constitutional amendment modeled on Justice John Marshall Harlan's marvelous dissent in Plessy which declared that, "Our Constitution is color blind, and neither knows nor tolerates classes among citizens." Such an amendment would bar government at any level from making decisions that either advantage or disadvantage persons based on race. This would finally complete the work of Reconstruction, align the text of the Constitution with our national ideals, and bury Jim Crow the way he should have been buried in the first place—by votes in legislative assemblies. By using Earl Warren's Brown opinion in the way it did, as the Urtext of American desegregation, the Supreme Court relieved Americans of the necessity (or, better, the duty) of doing unambiguously what was left undone in 1868.
Instead of a clear constitutional provision, what we have today at the heart of our race-relations law is a muddle. What's most troubling about James Patterson's book is that he is not troubled by this fact at all.