Separate but equal

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*256 go on forever entertaining litigation about primary schools, secondary schools, colleges, washrooms, golf courses, swimming pools, drinking fountains, and the endless variety of facilities that were segregated, or else the separate-but-equal doctrine would have to be abandoned. Endless litigation, aside from the burden on the courts, also would never produce the equality the Constitution promised. [FN163]
The Court had two choices, Bork argued: (1) Abandon the quest for equality by allowing segregation, or (2) forbid segregation in order to achieve equality. [FN164] "Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation are mutually inconsistent, though the ratifiers did not understand that, both could not be honored." [FN165] When that is seen, "it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the [F]ourteenth [A]mendment into being was equality before the law, and equality, not separation, was written into the text." [FN166] Had Brown been written in terms of the original understanding, Bork concluded, its result could have been rooted in that understanding, and perhaps constitutional theory "would be in a far happier state today." [FN167]
There is much to say about Bork's view of the original understanding and Brown's consistency with that understanding. Recall that Bork has argued that "where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other. The judge must stick close to the text and the history, and their fair implications, and not construct new rights." [FN168] If that analysis is applied to Brown, Brown is "wrong." [FN169] Faced with applying a nineteenth-century amendment to the twentieth-century issue of the constitutionality of apartheid in public education, and concluding that the history of that amendment was inconclusive with respect to the question before it, [FN170] the Brown Court applied the text of the Fourteenth Amendment and its "fair implications" (whatever those may be). Did the pertinent text of the Fourteenth Amendment [FN171] answer the question of whether the separate- but-equal doctrine in public education was unconstitutional? The Plessy Court had read the same language and concluded that segregation did not violate the Equal *257 Protection Clause. As a textual matter, which decision was right, Plessy or Brown, and why? [FN172]
If the text of the Fourteenth Amendment is not dispositive of the issue of the constitutionality of segregation, the history of that amendment assumes critical significance. [FN173] What does that history reveal? The Brown Court concluded that a review of the Congressional consideration of the amendment, the ratification of the amendment by the states, then extant practices in racial segregation, and the views of the opponents and proponents of the amendment were "not enough to resolve the problem with which we are faced. At best, they are inconclusive." [FN174] The Court also noted that it was not surprising that there was so little in the history of the Fourteenth Amendment relating to its intended effect on public education. [FN175]
Absent a clear textual/historical understanding of the Fourteenth Amendment and its intended effect on public education, how can Bork discern the original question posed in Brown and its answer? Consider, again, his analysis in The Tempting Of America. [FN176] According to Bork, African-Americans were not provided physical facilities that were as good as those provided for whites. The Court was faced with endless litigation that never would have produced the equality promised by the Constitution. Therefore, the Court had either to choose segregation or forbid segregation in order to achieve equality; however, and it was "obvious the Court must choose equality and prohibit state-imposed segregation." [FN177] Why is that obvious? The Fourteenth Amendment's Equal Protection Clause, while requiring the equal protection of the laws, does not facially require equality. [FN178] And Bork's view of the Court's decision in Brown focuses on realities of twentieth-century segregated public education and institutional concerns of the federal courts -- a focus far removed from the question of what the framers and ratifiers of the Fourteenth Amendment intended. Once Bork steps away from framer and ratifier intent and fashions his own notion of equality, one wonders how Bork can choose a meaning of equality in a value-neutral way. [FN179] I submit that he cannot and that his substitution of Borkian equality for any assumed framer-ratifier equality demonstrates that Bork did not engage in an originalist analysis or, in the alternative, that he has formulated a modified originalism that is flawed and incoherent.
*258 Viewed from an originalist perspective, Bork's reasoning is not persuasive. First, the fact that the facilities of African-American schools were not as good as the facilities of white schools neither sheds light on nor tells us what the ratifiers of the Fourteenth Amendment originally intended. Indeed, the very existence and continuation of segregated facilities following the adoption of the amendment support the view that the ratifiers did not intend to grant African-Americans the right to attend public schools with white students or even the right to enjoy public schools on equal terms as white students. [FN180] If segregated public education was in some way affected by the amendment, one could reasonably expect that the legislative history would contain some discussion or reference to such segregation and the amendment's intent. But, as we have seen and as Bork concedes, the legislative history is devoid of such evidence or suggestion that the Fourteenth Amendment was intended to deal with and end segregation in public schools.
According to Bork's view of the physical equality of the schools, a judicial order requiring that black schools be physically equal to white schools -- in other words, that the separate-but-equal doctrine had to actually exist -- was not an impossibility. [FN181] Moreover, a ruling that physical equality was a sufficient basis for upholding the separate-but-equal doctrine could have been consistent with an originalist interpretation of the Fourteenth Amendment. [FN182] Indeed, the NAACP had suggested at one time that the Equal Protection Clause required states to provide separate facilities for blacks and whites that were fully and actually equal to each other. [FN183] Hence, Bork's physical inequality argument is neither forceful, nor particularly relevant, to his originalism-based argument that Brown is consistent with the Fourteenth Amendment.
Second, Bork's point that the Court was faced with endless litigation that would never produce the equality promised by the Constitution does not indicate or reveal the intent of the Fourteenth Amendment's ratifiers. Assuming, arguendo, that in 1954 the Supreme Court addressed the practical *259 effects and institutional costs of ongoing litigation, the Court's view of such matters does not tell us what the ratifiers intended. If, as Bork believes, the originalist interpretation of the Fourteenth Amendment limits one to the text and the legislative history and the fair implications thereof, Bork's speculation as to the prospects of endless litigation goes beyond the parameters of the originalist analysis he advocates; it suggests that Bork's originalist view is tainted by the nonoriginalist factors of his own beliefs, values, and assumptions.
Finally, Bork's conclusion that the Court had to choose equality over state- imposed segregation is neither obvious nor compelled. Again, what meaning(s) or concept(s) of "equality" (if any) did the ratifiers of the Fourteenth Amendment consider, and is Bork's conception of "equality" the same as, or different from, that of the framers and ratifiers? Did Bork undertake the historical work necessary to achieve an accurate assessment of the ratifiers' understandings? If he did, why is that work not reflected in his book? Why should we accept Bork's dichotomy of equality versus state-imposed segregation when those who wrote and ratified the amendment did not see equality and segregation as inconsistent matters (what else did separate but equal mean)?
One of the fundamental problems with Bork's equality analysis is that his view is based on false premises. [FN184] The Equal Protection Clause does not, on its face, define equality in a way that answers specific questions the way the Court did in Brown. That segregation was not necessarily contrary to this nation's notion of equality simply reflects much of the history of race relations and discrimination in the United States. That some of the ratifiers could have held the view that segregated facilities were "equal" or did not care if blacks were educated on any basis, be it equal or unequal, is not a startling revelation. In the absence of textual or historical support, how can anyone adequately and accurately identify the content and meaning of the principle of equality without making and relying on his/her own contemporary notions of and assumptions about "equality"? [FN185] Is it sufficient for an avowed originalist to identify and rely upon a general and more malleable principle, as opposed to specific original intent, when pronouncing what the original understanding is and why the result in Brown is compelled by that supposed understanding? Professor David Richards has commented on Bork's defense of Brown via "an abstract command of equality that must be filled out by more concrete views of the content of equality." [FN186] In Richards' opinion:
All of this is well and good. It is not, however, originalism. Bork does not, within his own terms, neutrally derive his definition of *260 equality. Equality, as a normative concept, requires a conception of the dimensions in terms of which equality is to be assessed, and the relevant historical materials, to which Bork's originalism should appeal, are reasonably clear that most Founders thought equal protection required not equality in general but only equality assessed along certain dimensions and not others. In short, [[[Raoul] Berger is right about history and wrong about Brown, while Bork is wrong about history and right about Brown. By being wrong about history, Bork unfortunately subverts his theory of constitutional interpretation. The historical materials are all too clear about "the ratifiers' definition of the appropriate ranges of majority and minority freedom"; thus Bork's view of Brown is not, in his own terms, neutrally derivable from it. [FN187]
Bork's originalism is simultaneously narrow and flexible. [FN188] The analysis is, at first glance, narrow in the sense that Bork evokes originalism and makes reference to text, structure, history, and the specific views of the framers and ratifiers. His originalism is at the same time flexible because, in discussing Brown, Bork moves away from the ratification intent and relies on general principles and contemporary notions of equality -- a reliance that involves and requires the making of a choice about the contents and meaning of the general principle. Thus,
the choice of a general principle depends on the interpreter's or theorist's construction of a fiction. There is no way Bork can ever distinguish (or prove the difference) between what he claims is really the objective original understanding or his own subjective distillation or interpretation of different historical evidence. . . . What is guiding Bork throughout his search for constitutional meaning is not so much the proverbial light at the end of the tunnel -- objective original understanding -- but the light Bork holds in his own hand, the size, quality, and direction of which depend almost entirely on Bork's own historically and socially conditioned choices, needs, and perceptions. Moreover, as a deviation from the specific views of framers and ratifiers, Bork's choice of a general principle is no more defensible than any number of other choices that also deviate from those views. [FN189] In sum, Bork's argument with respect to original intent and Brown involves a reliance on factors, contentions, and assumptions which go beyond the text of the Fourteenth Amendment, that amendment's history, and the intent of the amendment's framers and ratifiers. As Bork's analysis of Brown extends beyond the text and pertinent constitutional materials, his claim that Brown is a correct originalist interpretation of the Constitution cannot withstand scrutiny. [FN190]
Turning to the second defect of originalism noted by Justice Scalia in the opening paragraph of this Part (that in undiluted form, originalism is too *261 strong a medicine to swallow), [FN191] Bork's effort to endorse the result in Brown in the face of significant data relative to the framers' and ratifiers' intent with respect to the meaning of the Fourteenth Amendment requires Bork and others to dilute originalism and to rely upon non-originalist reasons as they argue that Brown was correctly decided. For an originalist to proclaim that Brown was wrong is another way of saying that segregation was constitutional. Very few originalists are willing to make such a statement, and few will state, as Raoul Berger does, that Brown cannot be squared with the original understanding of the Fourteenth Amendment. [FN192] Berger has made it clear that he has "always clung to the original intention, even when the result ran counter to [his] aspirations. For [him] the integrity of the Constitution is the highest good." [FN193] "For [him] the integrity of the Constitution is more important than any political program. Few are the activists who can say as much." [FN194]
Why does Bork move away from originalism when discussing Brown? Professor Cass Sunstein offers a plausible explanation:
Consider, for example, how a debate might go over the role of original meaning in constitutional law. Let us suppose, plausibly, that the outcome in Brown v. Board of Education was not contemplated by the framers of the Constitution and that those who ratified the Fourteenth Amendment did not want to abolish segregation. If this is so, then everyone who believes that Brown was right must reject a prominent view of what adherence to the original meaning actually requires. Since the commitment to Brown seems nearly inevitable for all participants in the American constitutional tradition, such participants must claim that the original meaning of the Fourteenth Amendment is actually not decisive, that one must characterize the original meaning in a broad rather than narrow way, or that interpreters of the Constitution should have the license to translate the original meaning into new circumstances in order to be faithful to that very meaning. Those who reject all such routes and insist that adherence to the original meaning entails a fairly mechanical task of examining whether the ratifiers contemplated invalidation of the specific practice at hand must reject Brown itself (and much of the constitutional law that everyone takes to lie at the foundation of our constitutional heritage). If they do that, they must explain how their conception of interpretation will lead to a superior system of constitutional law. Some justification of this kind is indispensable to make sense of their position or to explain why anyone should agree with it. [FN195]
Thus, originalists like Raoul Berger, who adhere to the original understanding and follow the originalist analysis where it leads, can, consistent with their principled approach, reject Brown as a decision inconsistent with the *262 original understanding. Other declared originalists, who believe that Brown was correctly decided, run into the serious and obvious difficulty of squaring the Court's decision with an originalist understanding of the Fourteenth Amendment. If they wish to adhere to the Brown-is-right position, something must give; that something may be a total abandonment of the originalist analysis or a reformulation of originalism that results in a more flexible and broader conception of what originalism entails. One can fairly ask whether Bork's analysis of Brown flies in the face of contrary, pertinent historical evidence. One can also fairly ask whether the strict originalist answer to Brown -- that public school segregation was constitutional and, therefore, that Brown was decided wrongly -- was too strong to swallow in its undiluted form, and whether Bork's analysis of Brown is the result of a search for a more palatable way of approaching and justifying Brown without expressly abandoning originalism. To the extent that Bork's analysis reflects these tendencies, as well as a hesitancy to reach a conclusion that may disturb or be misunderstood by others, his originalist analysis is not "pure." Instead his analysis is actually informed by contemporary factors and his own notions of equality, and, therefore, is not originalist.

VI. Conclusion

One fundamental test of the utility and functional integrity of any principle (and an advocate's devotion to that principle) is adherence to the principle in the face of a logically compelled but difficult and unpopular conclusion. In that circumstance, the principle may give way when weaknesses are revealed by its application to a particular issue. This paper has examined the struggle between originalism and the question of the constitutionality of school segregation. While the principle and analysis may hold true, what one may conclude may not be desirable from a political, judicial, or other aspect. In that circumstance, the choices are: (1) to follow the principle where it leads and accept the derived conclusion or (2) not to accept the conclusion and reach a more "attractive" determination with respect to that issue, even where it requires either a minor or a significant departure from a designated core principle. My view is that Bork's position on the correctness of Brown is reached via a departure from the originalism he advocates. Such a departure in this particular instance raises important questions about the general usefulness of original intent and certainly warrants further and closer examination of originalism on other issues and in other areas of constitutional law.

[FNa]. Assistant Professor of Law, University of Alabama School of Law. B.A. 1980, Wilberforce University, magna cum laude; J.D. 1984, University of Pennsylvania Law School. The author acknowledges the research support provided by Dean Kenneth C. Randall and the University of Alabama Law School Foundation, and thanks his family (Karen, Kadi, and Ronald) for its continuing support and encouragement.

[FN1]. Richard A. Posner, The Problems of Jurisprudence 296 (1990).

[FN2]. Raoul Berger, Activist Indifference to Facts, 61 Tenn. L. Rev. 9, 12 (1993).

[FN3]. 347 U.S. 483 (1954), supplemented, 349 U.S. 294 (1955), remanded, 139 F. Supp. 468 (D. Kan. 1955).

[FN4]. Does "intent" refer to the objective meaning of language in a document, or to the subjective intentions of the authors? Professor H. Jefferson Powell, arguing that intent means the former, has written:

[At] common law, ... the "intent" of the maker of a legal document and the "intent" of the document itself were one and the same; "intent" did not depend upon the subjective purposes of the author. The late eighteenth century common lawyer conceived an instrument's "intent" -- and therefore its meaning -- not as what the drafters meant by their words but rather as what judges, employing the "artificial reason and judgment of law," understood "the reasonable and legal meaning" of those words to be.

H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885, 895-96 (1985).

[FN5]. U.S. Const. amend. XIV ("No State shall ... deny to any person within its jurisdiction the equal protection of the laws.").

[FN6]. That doctrine posited that the Fourteenth Amendment's Equal Protection Clause was not violated so long as "one class of persons was treated as well as another, even if its members were afforded different privileges." David P. Currie, The Constitution in the Supreme Court: The Second Century 1888-1986, at 250 (1990).

[FN7]. 163 U.S. 537 (1896), overruled by Brown, 347 U.S. 483. See generally Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (1987).

[FN8]. See infra notes 26-53 and accompanying text.

[FN9]. See Paul Brest, Constitutional Interpretation, in Judicial Power and the Constitution 166-67 (Leonard W. Levy et al. eds., 1990).

[FN10]. See, e.g., Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962); Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures (1958); Bernard H. Siegan, The Supreme Court's Constitution: An Inquiry into Judicial Review and its Impact on Society (1986); Alexander Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1 (1955); Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421 (1960); Hans A. Linde, Judges, Critics, and the Realist Tradition, 82 Yale L.J. 227 (1972); Louis Michael Seidman, Brown and Miranda, 80 Cal. L. Rev. 673 (1992); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781 (1983); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).

[FN11]. See Gerald Gunther, Constitutional Law 653 (12th ed. 1991).

[FN12]. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 14 (1971).

[FN13]. Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990).

[FN14]. Id. at 82.

[FN15]. Id.

[FN16]. See infra notes 134-144 and accompanying text.

[FN17]. See Geoffrey R. Stone, et al., Constitutional Law 463 (1986).

[FN18]. Richard Kluger, Simple Justice 633-34 (1976); Stone, supra note 17, at 463. The eight northern states permitting segregated schools were California, Kansas, Missouri, Nevada, New York, Ohio, Pennsylvania, and West Virginia. The five states excluding African-American children entirely from public education were Delaware, Indiana, Illinois, Kentucky, and Maryland. Id.

[FN19]. Raoul Berger, Government By Judiciary: The Transformation of the Fourteenth Amendment 125 (1977); Stone, supra note 17, at 463.

[FN20]. Stone, supra note 17, at 463; John P. Frank & Robert F. Munro, The Original Understanding of "Equal Protection of the Laws," 1972 Wash. U. L.Q. 421, 460-62.

[FN21]. In 1952, William Rehnquist, then a clerk to Supreme Court Justice Robert Jackson, wrote a memorandum to Jackson regarding desegregation cases before the Court entitled A Random Thought on the Segregation Cases. In that memorandum, Rehnquist compared judicial action to invalidate segregation to the Court's reading its own economic views into the Constitution in Lochner v. New York, 198 U.S. 45 (1908), and other cases. According to Rehnquist's memorandum, the Court was "being asked to read its own sociological views into the Constitution." Bernard Schwartz, A History of the Supreme Court 289 (1993) (quoting Rehnquist memorandum). The memorandum provided:

One hundred and fifty years of attempts on the part of this Court to protect minority rights of any kind -- whether those of business, slaveholders, or Jehovah's Witnesses -- have all met the same fate. One by one the cases establishing such rights have been sloughed off, and crept silently to rest. If the present Court is unable to profit by this example, it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men....

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