Separate but equal

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[FN87]. Bickel, supra, note 86, at 58.

[FN88]. Michael J. Gerhardt, Interpreting Bork, 75 Cornell L. Rev. 1358, 1375-76 (1990).

[FN89]. Ronald Dworkin, Bork's Jurisprudence, 57 U. Chi. L. Rev. 657, 665 (1990).

[FN90]. Graglia, supra note 33, at 1037 (footnote omitted); see also id. at 1038 (explaining that the Fourteenth Amendment Equal Protection clause was not intended to prohibit antimiscegenation laws, state-imposed school segregation, or state laws excluding blacks from jury service).

[FN91]. Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781, 800 (1983).

[FN92]. Brown v. Board of Education, 347 U.S. 483, 491 (1954).

[FN93]. See Gong Lum v. Rice, 275 U.S. 78 (1927); Cumming v. Board of Educ. of Richmond County, 175 U.S. 528 (1899).

[FN94]. 163 U.S. 537 (1896), overruled by Brown, 347 U.S. 483.

[FN95]. McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637 (1950); Sweatt v. Painter, 339 U.S. 629 (1950); Sipuel v. Board of Regents of Univ. of Okla., 332 U.S. 631 (1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).

[FN96]. Sweatt, 339 U.S. 629. For commentary on the move away from the "separate but equal" doctrine and the civil rights record of the Court under Chief Justice Charles Evan Hughes, see A. Leon Higginbotham, Jr. & William C. Smith, The Hughes Court and the Beginning of the End of the "Separate But Equal" Doctrine, 76 Minn. L. Rev. 1099 (1992).

[FN97]. Brown decided class actions originating in Kansas, South Carolina, Virginia, and Delaware in which black plaintiffs sought to obtain admission to public schools on a nonsegregated basis. The case was initially argued in the Court's 1952 Term and was reargued in the 1953 Term. The reargument was principally devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868, the ratification of that amendment by the states, then existing practices of segregation, and the views of the opponents and proponents of the Fourteenth Amendment. Brown, 347 U.S. at 489.

Prior to the reargument, Justice Frankfurter gave one of his law clerks, Alexander Bickel, the task of researching the question of the original intent of the Fourteenth Amendment's framers. Bickel wrote a lengthy memorandum which was revised by Frankfurter and Bickel and was distributed to the other justices prior to the reargument. According to that memorandum, the 39th Congress did not indicate an intent to either outlaw or to not outlaw segregation in public schools. Bernard Schwartz, Super Chief: Earl Warren And His Supreme Court -- A Judicial Biography 85 (1983). Justice Frankfurter's covering memorandum stated that the "legislative history of the Amendment is, in a word, inconclusive." Id.

[FN98]. Brown, 347 U.S. at 489.

[FN99]. Id.

[FN100]. Id. at 490.

[FN101]. Id.

[FN102]. Id. at 492 (second quotation in original).

[FN103]. Id.

[FN104]. Id. at 492-93.

[FN105]. Id. at 494.

[FN106]. Id. (footnote omitted).

[FN107]. Id. at 494-95 (footnote omitted).

[FN108]. Id. at 495 (footnote omitted). While the Brown Court did not discuss whether segregation violated the Due Process Clause of the Fifth Amendment (see U.S. Const. amend. V. "No person shall ... be deprived of life, liberty, or property, without due process of law...."), that constitutional provision (which applies to the federal government and does not contain an equal protection clause) was at issue in a case decided on the same day as Brown. In Bolling v. Sharpe, 347 U.S. 497 (1954), the Court determined that the concepts of equal protection and due process were not mutually exclusive, and that "discrimination may be so unjustifiable as to be violative of due process." Id. at 499 (footnote omitted). Segregation in the public schools of the District of Columbia "is not reasonably related to any proper governmental objective, and thus it imposes on Negro children ... a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause." Id. at 500. In view of its holding that the Constitution prohibits states from maintaining racially segregated public schools, "it would be unthinkable that the same Constitution imposes a lesser duty on the Federal Government." Id. (footnote omitted). Accordingly, the Court held that racial segregation in the District of Columbia public schools violated the Fifth Amendment. Id.

Like Brown, the Bolling decision is problematic for advocates of originalism. "[I]t cannot seriously be maintained that the Framers of the Fifth Amendment in 1789, many of whom owned slaves, intended to invalidate segregated schools -- or even to embrace a norm of equality." Tribe & Dorf, supra note 25, at 116; see also Ely, supra note 26, at 32 (the Court's holding in Bolling "is gibberish both syntactically and historically").

[FN109]. In April 1955, Thurgood Marshall argued before the Court for a decree ordering the end of segregation at the opening of the school year in September 1955 or, in the alternative, September 1956. Marshall rejected Justice Reed's suggestion of a 12-year plan of integration. Carl T. Rowan, Dream Makers, Dream Breakers: The World Of Justice Thurgood Marshall 228 (1993). In Brown v. Board of Education, 349 U.S. 294, 301 (1955), the Court ordered school districts to desegregate with "all deliberate speed." Thus, while the Court had declared public school segregation unconstitutional, the Court failed to say how or when segregated schools were to be abolished.

[FN110]. It has been argued that the result in Brown can be explained by public opinion.

The public's view on interracial relations began to change, and the separate- but-equal policy was increasingly rejected during the 1940s. The rise of global Nazism, fascism, and communism helped to accelerate this change of opinion; fighting for freedom abroad made denying freedom at home seem hypocritical and cruel, and tainted the United States' reputation abroad. In addition, the morality of the separate-but-equal policy was called into question by the need for African American labor at home to help with the war effort and by the worldwide embarrassment that resulted when American citizens discriminated against African dignitaries who were in our country to attend United Nations functions. Brooks & Newborn, supra note 54, at 794-95 (footnote omitted). Accord Derrick A. Bell, Jr., Brown v. Board of Education and the Interest- Convergence Dilemma, 93 Harv. L. Rev. 518, 524 (1980); Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 Stan. L. Rev. 61 (1988) (explaining that Brown, among other cases, is a result of public opinion).

The greatness of Brown should not obscure the fact that the judiciary occupies a weak institutional position relative to the executive and legislative branches of the federal government. Gerald N. Rosenberg, The Hollow Hope (1991); Cass R. Sunstein, The Partial Constitution 146 (1993) ( "Ten years after the decision, no more than about 1.2 percent of black children in the South attended desegregated schools.").

[FN111]. David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935, 947 (1989) (footnote omitted).

[FN112]. David A. Strauss, The Myth of Colorblindness, 1986 Sup. Ct. Rev. 99, 100.

[FN113]. T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 Colum. L. Rev. 1060, 1113 (1991) (footnote omitted).

[FN114]. William N. Eskridge, Jr. & Philip P. Frickey, Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 87 (1994).

[FN115]. Id.

[FN116]. One aspect of the Court's decision which is beyond the scope of this article -- the Court's citation to social science studies in support of its finding that segregation has a detrimental effect on African-American children and has a tendency to retard their educational and mental development (Brown, 347 U.S. at 494 n.11) -- has generated scholarly commentary. See, e.g., Kenneth B. Clark, The Desegregation Cases: Criticism of the Social Scientist's Role, 5 Vill. L. Rev. 224 (1959); Frank I. Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 Cal. L. Rev. 275 (1972); Mark G. Yudof, School Desegregation: Legal Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court, 42 Law & Contemp. Probs. 57 (1978).

[FN117]. Gunther, supra note 11.

[FN118]. H. N. Hirsch, A Theory of Liberty: The Constitution and Minorities 27 (1992).

[FN119]. Scalia, supra note 30, at 856.

[FN120]. Id.

[FN121]. Id. at 856-57.

[FN122]. Id. at 861.

[FN123]. U.S. Const. art. I, s 8, cl. 5.

[FN124]. See Bernard Schwartz, The New Right and the Constitution: Turning Back the Legal Clock 11 (1990).

[FN125]. 75 U.S. 603 (8 Wall. 1870).

[FN126]. Schwartz, supra note 124, at 11-12.

[FN127]. Legal Tender Cases, 79 U.S. 457, 652-53 (12 Wall. 1871) (Field, J., dissenting).

[FN128]. Id. at 533-34.

[FN129]. Bork, supra note 13, at 155.

[FN130]. See Kurland, supra note 43, at 128.

[FN131]. Robert H. Bork, The Supreme Court Needs a New Philosophy, Fortune, Dec. 1968, at 138, 141.

[FN132]. Id.

[FN133]. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 3 (1971).

[FN134]. Bork, supra note 13, at 19-28, 143-60. See Richards, supra note 78, at 1377 (discussing Bork's criticism of judicial interpretation). Professor Richards has written that Bork's originalist argument is crucially abstract and theoretical.

He does not present an originalist argument for originalism: the argument is not at all interpretively historical, there is little appeal to the debates at the Constitutional Convention or the state ratifying conventions, very little discussion of The Federalist, and almost no discussion of the rich historical literature about American constitutionalism's roots in American revolutionary criticisms of the British Constitution. Id. at 1377-78 (footnote omitted).

[FN135]. Bork, supra note 133, at 13.

[FN136]. Id. at 14-15.

[FN137]. Id. at 14.

[FN138]. Id.

[FN139]. Id.

[FN140]. Robert H. Bork, Tradition and Morality in Constitutional Law, in Views from the Bench: The Judiciary and Constitutional Politics 167, 171 (Mark W. Cannon & David M. O'Brien eds., 1985).

[FN141]. 119 F.R.D. 45, 68 (1987).

[FN142]. Bork, supra note 13.

[FN143]. Id. at 150. Judge Frank Easterbrook agrees with Bork's treatment of the level of generality as part of the meaning of the text.

Robert Bork has offered one of the best contemporary defenses of the traditional way of solving the generality problem. He treats the level of generality as part of the meaning of the text. For most constitutional provisions "the level of generality which is part of their meaning is readily apparent." When it is not -- when the rule is stated broadly (for example, "equal protection of the laws") -- "a judge should state the principle at the level of generality that the text and historical evidence warrant." Bork does not recommend peering inside the minds of the drafters. Their thoughts are unknowable. Anyway, they left us their words, their rule of decision, and not their thoughts; only the words passed through the process of ratification. Thus the question becomes the level of generality the ratifiers and other sophisticated political actors at the time would have imputed to the text. We inquire not what the drafters thought their rule would accomplish (a dead end version of private meaning we would call "expectationism"), but what their rule is. Rules may have surprising implications when applied to novel facts; often the implications of a rule elude its drafters. Thus Bork is consistent in concluding that the Fourteenth Amendment forbids segregation even though its authors might have accepted separate-but-equal. Frank H. Easterbrook, Levels of Generality in Constitutional Interpretation: Abstraction and Authority, 59 U. Chi. L. Rev. 349, 359 (1992) (footnotes omitted). But see Tribe & Dorf, supra note 25, at 80 (arguing that a quest for the original understanding will not avoid the problem of the level of generality, and that the choice of a level of generality is itself a value-laden choice).

[FN144]. Ely's quote reads:

What distinguishes interpretivism from its opposite is its insistence that the work of the political branches is to be invalidated only in accord with an inference whose starting point, whose underlying premise, is fairly discoverable in the Constitution. That the complete inference will not be found there -- because the situation is not likely to have been foreseen -- is generally common ground. Ely, supra note 26, at 1-2 (footnote omitted).

[FN145]. Bork, supra note 13, at 162-63.

[FN146]. See supra notes 34-36 and accompanying text.

[FN147]. See Graglia, supra note 33, at 1043-44.

[FN148]. See Tribe & Dorf, supra note 25, at 80.

[FN149]. Bork, supra note 13, at 162-63.

[FN150]. Id. at 75.

[FN151]. Id.

[FN152]. Id. at 76.

[FN153]. Id.

[FN154]. Id.

[FN155]. Id.

[FN156]. Id. at 81.

[FN157]. Id.

[FN158]. Id. at 81-82. Bork offers no evidence supporting or relating to this assumption. If Bork's assertions are correct, why, as a matter of originalism, were the Framers' assumptions not considered determinative as to the question of whether separate-but-equal was constitutional?

[FN159]. Id. at 82.

[FN160]. Posner, supra note 23, at 1374.

[FN161]. Bork, supra note 13, at 82. Bork offers no evidence or support for his statement with respect to the "assumptions" of the ratifiers.

[FN162]. Id.

[FN163]. Id.

[FN164]. Id.

[FN165]. Id. Bork offers no evidence to support his assertion that the ratifiers did not understand that equality and segregation were inconsistent. Those ratifiers who believed in the separate-but-equal doctrine could have believed that separate could be equal as a legal and practical matter. Others could have believed that separate-but-equal would never result in equality, but did not care that blacks would not enjoy some measure of equality. In any event, these are all assumptions and are not proof or evidence.

[FN166]. Id.

[FN167]. Id. at 83.

[FN168]. Bork, supra note 12, at 8.

[FN169]. See Posner, supra note 1, at 305-06; Posner, supra note 44, at 1374.

[FN170]. See supra note 96-100 and accompanying text.

[FN171]. See supra note 5.

[FN172]. Justice William O. Douglas, in his autobiography, noted that the Court would have voted 5-4 to reaffirm Plessy if the Court had voted on Brown after the case was first argued in 1952-53. William O. Douglas, The Court Years 1939-1975: The Autobiography Of William O. Douglas 113 (1980).

[FN173]. See supra part III; see also Bruce Ackerman, Robert Bork's Grand Inquisition, 99 Yale L.J. 1419, 1422-25 (1990) (arguing Bork has not engaged in enormous amount of historical research and analysis of original source material required by original intent theory).

[FN174]. Brown v. Board of Education, 347 U.S. 483, 489 (1954).

[FN175]. Id. at 490.

[FN176]. Bork, supra note 13.

[FN177]. Id. at 82.

[FN178]. Posner, supra note 44, at 1375.

[FN179]. Tribe & Dorf, supra note 25, at 80.

[FN180]. Posner, supra note 1, at 303.

[FN181]. See Brown v. Board of Education, 347 U.S. 483, 492 (1954) (referring to lower court findings that black and white schools had been or were being equalized with respect to tangible factors).

[FN182]. See infra notes 183-85 and accompanying text.

[FN183]. Mark V. Tushnet, The NAACP's Legal Strategy Against Segregated Education, 1925-1950, at 25-29, 105-37, 159-60 (1987); see also Brooks & Newborn, supra note 54, at 793-94:

That the separate-but-equal racial paradigm was morally bankrupt seems clear beyond peradventure. However, correctly sensing that white America and the American judiciary were not ready to acknowledge this fact, the National Association for the Advancement of Colored People (NAACP) eschewed a direct legal attack on the morality of the separate-but-equal policy in favor of an attack on the "equality" part of the policy. Thus, beginning in the 1920s, the NAACP initiated protracted litigation to force an equalization of public school expenditures in the South. The NAACP began to prevail in court cases seeking equalized funding in schools and public universities, thereby making the maintenance of separate-but-equal schools more costly for those who sought to continue segregated education. Id. at 794.

[FN184]. See Graglia, supra note 33, at 1038 (arguing that, contrary to Bork's premises, purpose of Fourteenth Amendment was not "equality before the law" between whites and blacks).

[FN185]. See Richards, supra note 78, at 1382 (understanding Bork's conception of equality as "a contemporary view of equality that condemns the unjust ravages that state-supported racism has worked on racial minorities; the conception is both a moral and factual judgment that condemns the unreasonable weight politically accorded to supposed race differences").

[FN186]. Id. at 1381.

[FN187]. Id. (footnote omitted).

[FN188]. Graglia, supra note 33, at 1043.

[FN189]. Gerhardt, supra note 88, at 1376-77 (footnotes omitted).

[FN190]. Cf. Posner, supra note 1, at 305.

[FN191]. See supra note 122 and accompanying text.

[FN192]. See Berger, supra note 19, at ch. 7.

[FN193]. Berger, supra note 2, at 12 (footnote omitted).

[FN194]. Id. at 12 n.32.

[FN195]. Sunstein, supra note 110, at 116 (emphasis added).

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