Brown v. Board of Education was actually one of several consolidated cases involving state laws that required segregation of the races in public schools. Brown itself came from Kansas. It was argued when Fred Vinson, a Truman appointee, was Chief Justice, but Vinson died before a decision was handed down, and Warren replaced him. In order to have a full Court, and to have the Chief Justice participate in a case of such magnitude and sensitivity, reargument was ordered in the next term. On May 17, 1954, the decision was handed down and created an immediate sensation; the public forum rang with vehement approval and disapproval. As was appropriate in such a case, the Court was unanimous and the Chief Justice wrote. The school segregation laws of the various states were declared to violate the equal protection clause of the fourteenth amendment. At least to that extent, Plessy v. Ferguson was overruled. It was not immediately apparent that all racial segregation by law was unconstitutional.
Brown was a great and correct decision, but it must be said in all candor that the decision was supported by a very weak opinion. Those two facts, taken together, have caused an enormous amount of trouble in the law.
The Brown Court found the history of the fourteenth amendment inconclusive because public education in 1868 was embryonic in the South and the effect of the amendment on public schools in the North was ignored in the congressional debates. The opinion did not choose to face the uncomfortable fact that the effect on public education was ignored because no one then imagined the equal protection clause might affect school segregation. The Chief Justice concluded for the Court that to “separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone…. Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.”15 There followed a footnote citing psychological studies.
There are obvious difficulties with the opinion. In the first place, it failed to deal with the fact that a number of Northern states had ratified the fourteenth amendment and had continued to segregate their public schools without even supposing there was any conflict between the two actions. It was no answer to say, as Warren did, that public education had not then advanced to the condition it has achieved today. The inescapable fact is that those who ratified the amendment did not think it outlawed segregated education or segregation in any aspect of life. If the ratifiers had intended segregation as the central meaning of the equal protection clause, it is impossible to see how later studies on the baleful psychological effects of segregation could change that meaning. Indeed, Plessy had recognized that segregation could have a psychological impact and found it essentially irrelevant. It is difficult to believe that those who ratified the fourteenth amendment and also passed or continued in force segregation laws did not similarly understand the psychological effects of what they did. They didn’t care.
The second difficulty is that nobody who read Brown believed for a moment that the decision turned on social science studies about such matters as the preference of black children for white or black dolls, which supposedly showed something about their self-esteem, which in turn supposedly was related to the presence or absence of legal segregation. This was disingenuous. The real rationale for Brown was deeper, and the pretense that it was not cheapened a great moment in constitutional law. Finally, in focusing on the effects of segregation on young children’s capacity to learn—a question by no means as simple as the Court made it sound—the decision’s rationale limited its principle to primary and secondary public education.
That the Court had not been straightforward in Brown quickly became apparent. Cases soon came up in which the professed rationale of Brown, the psychological effects of segregation on children of tender years, could not conceivably apply. Plaintiffs challenged legally segregated beaches,16 golf courses,17 parks,18 and courtrooms.19 The Supreme Court simply issued orders that such segregation was unconstitutional with nothing more than the citation of Brown v. Board of Education. That necessarily meant that the rationale of Brown was not the rationale offered in the opinion. Racial segregation by order of the state was unconstitutional under all circumstances and had nothing to do with the context of education or the psychological vulnerability of a particular age group. The real meaning of Brown, therefore, was far better than its professed meaning.
But the combined disingenuousness of the Brown opinion and the obvious moral rightness of its result had, I believe, a calamitous effect upon the law. This was massively ironic, because the result in Brown is consistent with, indeed is compelled by, the original understanding of the fourteenth amendment’s equal protection clause. The disastrous fact was that the Supreme Court did not think so. The Court, judging by its opinion, thought that it had departed from the original understanding in order to do the socially desirable thing. What is more, the Court triumphed over intense political opposition despite that fact. Those of us of a certain age remember the intense, indeed hysterical, opposition that Brown aroused in parts of the South. Most Southern politicians felt obliged to denounce it, to insist that the South would continue segregation in defiance of any number of Supreme Court rulings. We remember the television pictures of adult whites screaming obscenities at properly dressed black children arriving to attend school. We remember that at one point President Eisenhower had to send in airborne troops to guarantee compliance with the Court’s rulings.
Imagine, then, what the Justices of the Supreme Court thought. They had issued, so they apparently believed, a ruling based on nothing in the historic Constitution, and that decision had prevailed despite the fact that it had ordered a change in an entrenched social order in much of the nation. Scholars used to worry that the Court would damage its authority if it acted politically. I have written a few such naîve lines myself. The fact is quite the contrary. The Court is virtually invulnerable, and Brown proved it. The Court can do what it wishes, and there is almost no way to stop it, provided its result has a significant political constituency. (These days the significance of a political constituency is greatly magnified if the constituency includes a large part of the intellectual or knowledge class, which means that the Court has greater freedom to the left than it has to the right.) Much of the rest of the Warren Court’s history may be explained by the lesson it learned from its success in Brown.
But Brown taught lessons to others as well. It was accepted by law professors as inconsistent with the original understanding of the equal protection clause. That fact was crucial. The end of state-mandated segregation was the greatest moral triumph constitutional law had ever produced. It is not surprising that academic lawyers were unwilling to give it up; it had to be right. Thus, Brown has become the high ground of constitutional theory. Theorists of all persuasions seek to capture it, because any theory that seeks acceptance must, as a matter of psychological fact, if not of logical necessity, account for the result in Brown. In fact, those who wish to be free of the restraints of original understanding in the hope that courts will further a particular policy agenda regularly seek to discredit that philosophy by claiming that it could not have produced the outcome in Brown. Since Brown is the test, the argument runs, and since original understanding cannot meet that test, then the philosophy is discredited, and courts may do as they wish, or as the intellectual class wishes, in all future policy issues. The charge is false, but if it were correct, that would not affect the legitimacy of the philosophy. Constitutional philosophy is a theory of what renders a judge’s power to override democratic choice legitimate. It is no answer to say that we like the results, no matter how divorced from the intentions of the lawgivers, for that is to say that we prefer an authoritarian regime with which we agree to a democracy with which we do not.
But so great is the allegiance to Brown that when a respected law professor, Herbert Wechsler of Columbia, questioned the
case in a Holmes Lecture at Harvard, he created a sensation in academic circles, and many professors rushed into print to rebut him.20 Wechsler did not actually say the case was wrong, but he had confessed to being unable to discern the “neutral principle” upon which it rested.21
Wechsler contended that the Supreme Court must not be merely a “naked power organ,” which meant that its decisions must be controlled by principle. “A principled decision,” he said, “is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved.”22 The legal principle to be applied is never neutral in its content, of course, because it embodies a value that is to be applied to the exclusion of other contending values. Wechsler’s argument was that the value-laden principle must be applied neutrally. That is a requirement, as Louis L. Jaffe put it, that the judge “sincerely believe in the principle upon which he purports to rest his decision.”23 “The judge,” said Jaffe, “must believe in the validity of the reasons given for the decision at least in the sense that he is prepared to apply them to a later case which he cannot honestly distinguish.” Which is to say that the judge must not decide lawlessly. I would add, as I will argue later on, that neutrality in the application of principle is not enough. In order to avoid lawlessness, the principles a judge applies must also be neutrally derived and defined. It should be obvious that a court which picks a principle it likes, regardless of its source, does not then avoid lawlessness by applying that principle neutrally. It has begun by legislating the principle without warrant in legal materials and is, for that reason, merely a “naked power organ.” Wechsler apparently disagreed with that, and it was this that caused his difficulties with the Brown decision.
Wechsler, along with many legal scholars, agreed that Brown did not rest on the ground advanced in Chief Justice Warren’s opinion. The real principle was that government may not employ race as a classification, but Wechsler thought the genesis of that principle unclear. He then committed an error fatal to his argument. He said his problem with the desegregation cases was not that “history does not confirm that an agreed purpose of the fourteenth amendment was to forbid separate schools or that there is important evidence that many thought the contrary; the words [of the amendment: ‘equal protection of the laws’] are general and leave room for expanding content as time passes and conditions change.”24 This is error because it leaves the judge without guidance. He observes that conditions have changed, but he has no way of finding a principle to apply except his own view of morality. That forces him into the position of exercising naked power, which it was the point of Wechsler’s analysis to avoid. Noting that Brown has to do with freedom to associate and freedom not to associate, Wechsler said a principle must be found that solves the following dilemma:
[I]f the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant. Is this not the heart of the issue involved, a conflict in human claims of high dimension…. Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail? I should like to think there is, but I confess that I have not yet written the opinion. To write it is for me the challenge of the school-segregation cases.
I think no one will ever be able to write that opinion persuasively, for Wechsler cast the problem as one in moral philosophy. Moral philosophy will never be able to demonstrate, as a general principle, that coerced association is preferable to freedom not to associate, nor will philosophy be able to demonstrate the opposite, that the freedom from association is a principle of higher rank than the claim for association.
I speak with some feeling on this subject because I once engaged in the sort of enterprise Wechsler suggested. Very early in my career as a law professor I held two views that are relevant here. The first, which I continue to hold, is that there should be a presumption that individuals are free, and to justify coercion by government a case must be made that overcomes that presumption. The burden of persuasion is upon those who would regulate. The second was that legislation, which is coercion, must rest upon principles of general application. These were not views about constitutional law, though at one point I tried to convert them to that,25 but rather tenets of an embryonic political outlook. The public accommodations provisions of the Civil Rights Act were proposed in 1963 as a means of giving racial minorities access to restaurants, hotels, and other facilities that excluded them. This was not a constitutional matter. The fourteenth amendment did not apply because the discrimination was done by private persons, not the state. The result of the law would be to favor the claims of association over the claims of freedom not to associate. There seemed to be no generally applicable principle of moral or political philosophy available to justify the legislative coercion and I opposed the bill on that ground. I was, in a word, phrasing the legislative issue much as Professor Wechsler had framed the constitutional issue. I argued the point with my good friend and colleague on the Yale law faculty, Alexander Bickel, and he suggested I write a piece for The New Republic, a magazine on which he was a contributing editor.26 Though he disagreed with me, he was delighted with the piece and said it was a variation of the liberal tradition. It was in fact rooted in the libertarian strain of that tradition. Since I operated from a presumption of freedom and required a general principle to justify coercion, I also opposed state-enforced segregation as well as state-compelled association in the article. The article was used heavily twenty-four years later in the campaign waged against my confirmation as indicating that I was or had been opposed to civil rights. Nothing could be further from the truth. The position, as I later came to see, was wrong, but the argument proceeded from a concern with the civil rights of all persons. But, of all the people who argued with me, nobody made the sensible point that no legislation rests upon a principle that is capable of being applied generally.
My position was incorrect because, as I subsequently realized, there are no general principles to decide competing claims of association and nonassociation. There being no correct general answer, the proper approach for the legislator is necessarily ad hoc, to ask whether the proposed law will do more good than harm. What do I mean by “more good than harm”? I mean that society itself will come to see the legislation as beneficial and will do so in the relatively short term. It is a pragmatic test, but none the worse for that, and it is the only test available for legislation. The Civil Rights Act of 1964 passes it easily. I said as much at my confirmation hearings to be Solicitor General in 1973.
This test will not do for constitutional law, however. It is not the function of a judge to decide what is good for us. Brown, which has been good for us, cannot be justified on that ground. Nor can it be justified on a principle of the sort Wechsler sought if such principles do not exist. Wechsler’s difficulty arose from the fact that he discarded the idea that the original understanding is the only legitimate basis for a constitutional decision and simultaneously asked for a neutral principle to decide Brown. But once a court abandons the intention of those who made the law, the court is necessarily thrust into a legislative posture. It must write the law. And if the court must legislate, we cannot ask it for neutral principles of the sort Wechsler thought essential. Wechsler was asking the Supreme Court to be two branches of government at once, which would require the Justices to perform incompatible functions and to maintain incompatible states of mind simultaneously. The modes of reasoning appropriate to legislators and to judges are quite different. In 1963, I made the opposite mistake of demanding that Congress reason like the Supreme Court and produce a neutral principle to support the public accommodations bill. Congress can properly require that hotels not turn away guests on the basis of race but make an exception for a person who rents a room or two i
n a private residence. It can enforce associations in restaurants but refuse to do so in law partnerships. It can make a thousand detailed tradeoffs and produce a complex code that articulates no general principle but reflects moral intuitions, political pressures, and compromises.
This means that, if we accept Wechsler’s requirement that a court must apply neutral principles, and I think we must, Brown must rest, if it is a correct decision, on the original understanding of the equal protection clause of the fourteenth amendment. It is clear that it can be rested there. In 1971, in an article in the Indiana Law Journal, I offered two grounds that support Brown, the second of which I have since expanded and think completely adequate.
Let us suppose that Plessy v. Ferguson correctly represented the original understanding of the fourteenth amendment, that those who ratified it intended black equality, which they demonstrated by adopting the equal protection clause. But they also assumed that equality and state-compelled separation of the races were consistent, an assumption which they demonstrated by leaving in place various state laws segregating the races. Let us also suppose, along with the Court in Plessy, as I think we must, that the ratifiers had no objection to the psychological harm segregation inflicted. If those things are true, then it is impossible to square the opinion in Brown with the original understanding. It is, however, entirely possible to square the result in Brown with that understanding.
Perhaps because of their anxiety to deny that Brown v. Board of Education could have been arrived at consistently with the original understanding of the fourteenth amendment, those who oppose that philosophy always talk as though segregation was the primary thrust of the equal protection clause. But, of course, it was not. Segregation is not mentioned in the clause, nor do the debates suggest that the clause was enacting segregation. The ratifiers probably assumed that segregation was consistent with equality but they were not addressing segregation. The text itself demonstrates that the equality under law was the primary goal.
The Tempting of America Page 11
