Class 1 - Introduction

WEEK ONE
INTRODUCTION TO AND ORIGINS OF

MODERN CONSTITUTIONAL THEORY
New citizens, public officials, and lawyers all affirm they will “support the
Constitution of the United States.” The document’s self-proclaimed status as
the “supreme Law of the Land” is uncontroversial to civics students, political
candidates from one extreme to another, and Supreme Court justices alike.
Many elementary schools begin the day with the Preamble to the Constitution
alongside or instead of the Pledge of Allegiance, a curious solemnity that
recommits the youngest generation to the national project. For all of its
historical distance, archaic diction, and scars of injustices it has justified, in its
headlines the Constitution stands as one of the few statements to which nearly
all Americans easily subscribe. But what do we support when we support the
Constitution? Pay the subject any attention and these gauzy gestures resolve
into a shifting complex of sharply contested ideas. This course will explore
these ideas in three parts.
First, what drives constitutional law and changes within it? Even in the
past century an emphasis on individual rights is a relatively new phenomenon,
while the mix of rights emphasized and their significance for the marginalized
has ebbed and flowed. The scale and scope of the federal administrative state,
and the leverage it wields over previously local matters, has steadily increased.
Meanwhile, political games of hardball have upset once established norms of
comity within and among the branches with constitutional implications. Most
of these changes occurred without any amendment to the Constitution itself,
and sometimes despite the failure of amendment attempts. Where is the
Supreme Court’s place in these developments, and to what extent are the
“political branches” and the People acting through them leading or following
the judicial branch? Despite epithets like judicial activism, courts rarely shape
social change, though in reacting to legal movements they might trail more or
less closely, or even dig in their heels.
Second, when courts and other constitutional actors turn to the
Constitution for answers, how do they find them? The document’s text ranges
from the trivially technical (“No Person shall be a Representative who shall
not have attained to the Age of twenty five Years”) to the abstract (“The
executive Power shall be vested in a President of the United States of
America”) to phrases that might be either or both (“no Person holding any
Office of Profit or Trust under [the United States], shall, without the Consent
of the Congress, accept of any … Emolument … from any … foreign State”). Its
structure may be elegant and innovative (the Separation of Powers) or clumsy
and, to some, outdated (the Electoral College). Its history can illuminate (the
Fourth Amendment’s response to general warrants) or obfuscate (the debates
2 INTRODUCTION TO THE COURSE
over the Eleventh Amendment’s scope of immunity). Precedent sometimes
entrenches clear applications (the central scope of the Necessary and Proper
power) and other times buries provisions unceremoniously (the Privileges or
Immunities Clause), leading to puzzling detours (substantive Due Process).
Policy considerations seem dispositive in some instances (the acceptance of
paper money under the coinage clause) but irrelevant in others (the rejection
of income taxes before the Sixteenth Amendment). As for principles,
fundamental concepts such as democracy (or republicanism), sovereignty,
equality, and dignity remain essentially contested, only loosely moored to any
constitutional consensus.
Third, how do these methods map onto the doctrinal content of
constitutional law? Typically law students encounter questions about the
separation of powers and equal protection, or the freedom of speech and
criminal procedure, in different courses. Yet these are all matters of
constitutional law and the product of the processes discussed in the first part
of the book and the methods discussed in the second part. Federalism, for
example, can be better understood as a study in constitutional change and
precedent-based reasoning. The scope of executive power and the separation of
powers draws on structural reasoning and judicial restraint. Historical and
policy arguments mingle in First Amendment doctrine concerning the freedom
of speech and religion. Criminal procedure displays an array of precedent-
based, policy, textual, historical, and even structural arguments played out
against a backdrop of overlapping constitutional regimes. Fourteenth
Amendment guarantees of equal protection and liberty under substantive due
process doctrine rely on arguments about principle inflected by historical and
precedent-based reasoning. Representational issues, from voting rights to
campaign finance, demonstrate tensions between structural and principled
approaches to constitutional texts.
A. CONSTITUTIONAL CONVERSATION: A CASE STUDY

We will take these themes in order, starting with a canonical case and its
companion that introduces crucial questions of constitutional dynamics,
methodology, and doctrine that we explore throughout the book. In Brown v.
Board of Education (1954) the Supreme Court held “[s]eparate educational
facilities are inherently unequal” in states under the Equal Protection Clause.
On the same day in Bolling v. Sharpe (1954) the Supreme Court held “that
racial segregation in the public schools of the District of Columbia is a denial
of the due process of law guaranteed by the Fifth Amendment to the
Constitution.” In Brown II (1955), the Supreme Court remanded the cases to
lower courts for the entry of “such orders and decrees consistent with this
opinion as are necessary and proper to admit to public schools on a racially
nondiscriminatory basis with all deliberate speed the parties to these cases,” a
process that led to little progress, and great conflict, over the course of a decade
and more, which still lingers today.. That conflict arose from a campaign of
“massive resistance” to school desegregation, reflected in the extraordinary
“Southern Manifesto” of 1956, issued by the one-fifth of Congress representing
eleven southern states. Framed in constitutional terms, it argued “the
Supreme Court of the United States, with no legal basis for such action,
undertook to exercise their naked judicial power and substituted their personal
political and social ideas for the established law of the land.” The following
INTRODUCTION TO THE COURSE 3
year President Eisenhower, noting “citizens are keenly aware of the

tremendous disservice that has been done to the people of Arkansas in the eyes
of the nation, and that has been done to the nation in the eyes of the world,”
mobilized troops to enforce federal court desegregation orders against
“disorderly mobs” “under the leadership of demagogic extremists” in Little
Rock, Arkansas. Before the end of that school year, the Little Rock School
Board sued to suspend their desegregation plan. The Supreme Court, in Cooper
v. Aaron (1958), an unprecedented joint opinion signed by all nine justices,
rejected the challenge. It declared “the federal judiciary is supreme in the
exposition of the law of the Constitution,” so “[i]t follows that the interpretation
of the Fourteenth Amendment enunciated by this Court in the Brown case is
the supreme law of the land.”
Brown is the model of canonical case. By this, scholars mean that any
broadly acceptable theory of American constitutional law must account for
Brown’s legitimacy as a judicial act, recognizing a now established
constitutional principle of equality, faithfully implementing the Equal
Protection Clause. Yet as the Court and commentators recognized at the time,
and scholars have fretted ever since, the consensus around Brown’s legal
reasoning is surprisingly thin.
The case’s influence, meaning, and correctness as a matter of constitutional
law is deeply contested from several sides of the constitutional conversation.
Brown culminated a sophisticated campaign of litigation to establish broad and
necessary social change—racial equality in education—but arrived at a
Supreme Court rebuilt in reaction to its perceived judicial overreach in limiting
the political branches during the New Deal. The unanimous decision, and its
empirically oriented repudiation of racial subordination, was celebrated and
reviled in its aftermath. But its effects were uncertain in law and society. After
the Court itself stepped back in Brown’s sequel it took a decade, and
mobilization by the political branches, to accomplish meaningful desegregation
in the South. By the 1970s, as the first waves of remedial litigation receded,
cases involving affirmative action, gender equality, and abortion reexamined
Brown’s implications for race-based remedies, a broadening of equal rights,
and the role of the Supreme Court in leading controversial social change. In
the 1980s and 1990s, Brown’s premises became the focus of a reframed
methodological debate over constitutional originalism and its alternatives.
Most recently, in the 21st century’s early decades of increasingly polarized
ideological debates, driven in part by divergent constitutional commitments
and demonstrated in rancorous, politically-divided judicial confirmation
proceedings, Brown serves mostly as a constitutional icon, authoritative but
enigmatic. As a central motif of our modern constitutional conversations, it is
therefore an appropriate starting point for our study of constitutional change,
methods, and doctrine.
B. ANXIETY ABOUT NEUTRALITY AND PRINCIPLED JUDGING

As you read the exchange below between Wechsler and Black, consider the
stakes. The late philosopher John Rawls developed “the idea of public reason,”
which in his view “specifies at the deepest level the basic moral and political
values that are to determine a constitutional democratic government’s
relationship to its citizens and their relation to one another.” According to the
idea of public reason, citizens owe it to one another to give reasons for justifying
their rules of governing that other citizens can accept without regard to
distinctly personal value commitments or interests.
(1) Does this conception align with the purpose of principled adjudication?
(2) From where does the duty of principled adjudication arise?
(3) Would a more “principled” opinion in Brown or subsequent cases be any
more persuasive to the southern whites who opposed desegregation and
their political leaders, or would it have made implementation of the
subsequent court orders any more effective?
(4) Would the mechanism for such efficacy be the public’s perception of the
Court’s legitimacy or the decision itself? The perception of other state
or federal actors?
(5) If a principled opinion would be less effective in supporting compliance
with its judgment, is that a reason not to write one?
(6) What might explain the Court’s “reluctance to go into the distasteful
details of the southern caste system,” as Professor Black puts it?
(7) Which principles offered by the Supreme Court, Professor Wechsler, or
Professor Black do you find most convincing?
Herbert Wechsler
TOWARD NEUTRAL PRINCIPLES OF CONSTITUTIONAL LAW

73 Harv. L. Rev. 1, 2, 10-15, 17, 19-20, 22-26, 31-35 (1959)
***
I. THE BASIS OF JUDICIAL REVIEW
Let me begin by stating that I have not the slightest doubt respecting the
legitimacy of judicial review, whether the action called in question in a case
which otherwise is proper for adjudication is legislative or executive, federal or
state. ***
II. THE STANDARDS OF REVIEW
If courts cannot escape the duty of deciding whether actions of the other
branches of the government are consistent with the Constitution, when a case
is properly before them in the sense I have attempted to describe, you will not
doubt the relevancy and importance of demanding what, if any, are the
standards to be followed in interpretation. Are there, indeed, any criteria that
both the Supreme Court and those who undertake to praise or to condemn its
judgments are morally and intellectually obligated to support?
Whatever you may think to be the answer, surely you agree with me that I
am right to state the question as the same one for the Court and for its critics.
An attack upon a judgment involves an assertion that a court should have
decided otherwise than as it did. Is it not clear that the validity of an assertion
of this kind depends upon assigning reasons that should have prevailed with
the tribunal; and that any other reasons are irrelevant? That is, of course, not
only true of a critique of a decision of the courts; it applies whenever a
determination is in question, a determination that it is essential to make either
way. Is it the irritation of advancing years that leads me to lament that our
culture is not rich with critics who respect these limitations of the enterprise
in which they are engaged? ***
I revert then to the problem of criteria as it arises for both courts and critics
– by which I mean criteria that can be framed and tested as an exercise of
reason and not merely as an act of willfulness or will. Even to put the problem
is, of course, to raise an issue no less old than our culture. Those who perceive
in law only the element of fiat, in whose conception of the legal cosmos reason
has no meaning or no place, will not join gladly in the search for standards of
the kind I have in mind….
I shall not try to overcome the philosophic doubt that I have mentioned,
although to use a phrase that Holmes so often used – “it hits me where I live.”
That battle must be fought on wider fronts than that of constitutional
interpretation; and I do not delude myself that I can qualify for a command,
great as is my wish to render service. The man who simply lets his judgment
turn on the immediate result may not, however, realize that his position
implies that the courts are free to function as a naked power organ, that it is
an empty affirmation to regard them, as ambivalently he so often does, as
courts of law. If he may know he disapproves of a decision when all he knows
is that it has sustained a claim put forward by a labor union or a taxpayer, a
Negro or a segregationist, a corporation or a Communist – he acquiesces in the
proposition that a man of different sympathy but equal information may no
less properly conclude that he approves.
You will not charge me with exaggeration if I say that this type of ad hoc
evaluation is, as it has always been, the deepest problem of our
constitutionalism, not only with respect to judgments of the courts but also in
the wider realm in which conflicting constitutional positions have played a part
in our politics. *** Was not Jefferson in the Louisiana Purchase forced to rest
on an expansive reading of the clauses granting national authority of the very
kind that he had steadfastly opposed in his attacks upon the Bank? …
To bring the matter even more directly home, what shall we think of the
Harvard records of … the class of Mr. Justice Curtis, which, we are told,
praised at length the Justice’s dissent in the Dred Scott case but then added,
“Again, and seemingly adverse to the above, in October, 1862, he prepared a
legal opinion and argument, which was published in Boston in pamphlet form,
to the effect that President Lincoln’s Proclamation of prospective emancipation
of the slaves in the rebellious States is unconstitutional.”
Of course, a man who thought and, as a Justice, voted and maintained that
a free Negro could be a citizen of the United States and therefore of a state,
within the meaning of the constitutional and statutory clauses defining the
diversity jurisdiction; that Congress had authority to forbid slavery within a
territory, even one acquired after the formation of the Union; and that such a
prohibition worked emancipation of a slave whose owner brought him to reside
in such a territory – a man who thought all these things detracted obviously
from the force of his positions if he also thought the President without
authority to abrogate a form of property established and protected by state law
within the states where it was located, states which the President and his critic
alike maintained had not effectively seceded from the Union and were not a
foreign enemy at war.
How simple the class historian could make it all by treating as the only
thing that mattered whether Mr. Justice Curtis had, on the occasions noted,
helped or hindered the attainment of the freedom of the slaves.
I have cited these examples from the early years of our history since time
has bred aloofness that may give them added force. What a wealth of
illustration is at hand today! … [A]re those who in relation to [anti-communist
investigations under] the Smith Act see no virtue in distinguishing between
advocacy of merely abstract doctrine and advocacy which is planned to
instigate unlawful action, equally unable to see virtue in the same distinction
in relation, let us say, to advocacy of resistance to the judgments of the courts,
especially perhaps to judgments vindicating claims that equal protection of the
laws has been denied? I may live a uniquely sheltered life but am I wrong in
thinking I discerned in some extremely warm enthusiasts for jury trial a
certain diminution of enthusiasm as the issue was presented in the course of
the debate in 1957 on the bill to extend federal protection of our civil rights?
All I have said, you may reply, is something no one will deny, that principles
are largely instrumental as they are employed in politics, instrumental in
relation to results that a controlling sentiment demands at any given time.
Politicians recognize this fact of life and are obliged to trim and shape their
speech and votes accordingly, unless perchance they are prepared to step aside;
and the example that John Quincy Adams set somehow is rarely followed.
That is, indeed, all I have said but I now add that whether you are tolerant,
perhaps more tolerant than I, of the ad hoc in politics, with principle reduced
to a manipulative tool, are you not also ready to agree that something else is
called for from the courts? I put it to you that the main constituent of the
judicial process is precisely that it must be genuinely principled, resting with
respect to every step that is involved in reaching judgment on analysis and
reasons quite transcending the immediate result that is achieved. To be sure,
the courts decide, or should decide, only the case they have before them. But
must they not decide on grounds of adequate neutrality and generality, tested
not only by the instant application but by others that the principles imply? Is
it not the very essence of judicial method to insist upon attending to such other
cases, preferably those involving an opposing interest, in evaluating any
principle avowed? ***
At all events, is not the relative compulsion of the language of the
Constitution, of history and precedent – where they do not combine to make an
answer clear – itself a matter to be judged, so far as possible, by neutral
principles – by standards that transcend the case at hand? ***
Let me repeat what I have thus far tried to say. The courts have both the
title and the duty when a case is properly before them to review the actions of
the other branches in the light of constitutional provisions, even though the
action involves value choices, as invariably action does. In doing so, however,
they are bound to function otherwise than as a naked power organ; they
participate as courts of law. This calls for facing how determinations of this
kind can be asserted to have any legal quality. The answer, I suggest, inheres
primarily in that they are – or are obliged to be – entirely principled. A
principled decision, in the sense I have in mind, 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. When no

sufficient reasons of this kind can be assigned for overturning value choices of
the other branches of the Government or of a state, those choices must, of
course, survive. Otherwise, as Holmes said in his first opinion for the Court, “a
constitution, instead of embodying only relatively fundamental rules of right,
as generally understood by all English-speaking communities, would become
the partisan of a particular set of ethical or economical opinions . . . .”
The virtue or demerit of a judgment turns, therefore, entirely on the reasons
that support it and their adequacy to maintain any choice of values it decrees,
or, it is vital that we add, to maintain the rejection of a claim that any given
choice should be decreed. The critic’s role … is the sustained, disinterested,
merciless examination of the reasons that the courts advance, measured by
standards of the kind I have attempted to describe. I wish that more of us today
could imitate his dedication to that task.
III. SOME APPRAISALS OF REVIEW
One who has ventured to advance such generalities about the courts and
constitutional interpretation is surely challenged to apply them to some
concrete problems – if only to make clear that he believes in what he says.
Needless to say, I must rely on you to understand that in alluding to some
areas of constitutional interpretation, selected for their relevancy to my thesis,
I do not mean to add another capsulated estimate of the performance of our
highest court to those that now are in such full supply. The Court in
constitutional adjudications faces what must surely be the largest and the
hardest task of principled decision-making faced by any group of men in the
entire world. There is a difference worthy of articulation between purported
evaluations of the Court and comments on decisions or opinions.
(1). – I start by noting two important fields of present interest in which the
Court has been decreeing value choices in a way that makes it quite impossible
to speak of principled determinations or the statement and evaluation of
judicial reasons, since the Court has not disclosed the grounds on which its
judgments rest. [The first set of cases involved obscenity doctrine under the
Free Speech Clause applied to motion pictures.]
The second group of cases to which I shall call attention involves what may
be called the progeny of the school-segregation ruling of 1954. Here again the
Court has written on the merits of the constitutional issue posed by state
segregation only once [in Brown and Bolling]; its subsequent opinions on the
form of the decree [in Brown II] and the defiance in Arkansas [in Cooper] deal,
of course, with other matters. The original opinion, you recall, was firmly
focused on state segregation in the public schools, its reasoning accorded
import to the nature of the educational process, and its conclusion was that
separate educational facilities are “inherently unequal.”
What shall we think then of the Court’s extension of the ruling to other
public facilities, such as public transportation, parks, golf courses, bath houses,
and beaches, which no one is obliged to use – all by per curiam decisions? That
these situations present a weaker case against state segregation is not, of
course, what I am saying. I am saying that the question whether it is stronger,
weaker, or of equal weight appears to me to call for principled decision. I do
not know, and I submit you cannot know, whether the per curiam affirmance
in the Dawson case, involving public bath houses and beaches, embraced the
broad opinion of the circuit court that all state-enforced racial segregation is
invalid or approved only its immediate result and, if the latter, on what
ground….1 ***
(2). – The phase of our modern constitutional development that I conceive
we can most confidently deem successful inheres in the broad reading of the
commerce, taxing, and related powers of the Congress, achieved with so much
difficulty little more than twenty years ago – against restrictions in the name
of state autonomy to which the Court had for a time turned such a sympathetic
ear.
Why is it that the Court failed so completely in the effort to contain the
scope of national authority and that today one reads decisions like Hammer v.
Dagenhart (1918) or Carter Coal (1936) or the invalidation of the Agricultural
Adjustment Act [in United States v. Butler, 1936)] with eyes that disbelieve?
No doubt the answer inheres partly in the simple facts of life and the consensus
they have generated on the powers that a modern nation needs. But is it not a
feature of the case as well – a feature that has real importance – that the Court
could not articulate an adequate analysis of the restrictions it imposed on
Congress in favor of the states, whose representatives – upon an equal footing
in the Senate – controlled the legislative process and had broadly acquiesced
in the enactments that were subject to review?
Is it not also true and of importance that some of the principles the Court
affirmed were strikingly deficient in neutrality, sustaining, for example,
national authority when it impinged adversely upon labor, as in the application
of the Sherman Act, but not when it was sought to be employed in labor’s aid?
On this score, the contrast in today’s position certainly is striking. The power
that sustained the [labor-protective] Wagner Act is the same power that
sustains [labor-restrictive] Taft-Hartley – with its even greater inroads upon
state autonomy but with restraints on labor that the Wagner Act did not
impose. ***
(3). – The poverty of principled articulation of the limits put on Congress as
against the states before the doctrinal reversal of the Thirties was surely also
true of the decisions, dealing with the very different problem of the relationship
between the individual and government, which invoked due process to
maintain laissez faire. Did not the power of the great dissents inhere precisely
in their demonstrations that the Court could not present an adequate analysis,
in terms of neutral principles, to support the value choices it decreed? Holmes,
to be sure, saw limits beyond which “the contract and due process clauses are
gone”; and his insistence on the need for compensation to sustain a
Pennsylvania prohibition of the exploitation of subsurface coal, threatening
subsidence of a dwelling belonging to the owner of the surface land, indicates
the kind of limit he perceived. [Pennsylvania Coal Co. v. Mahon, (1922).] Am I
simply voicing my own sympathies in saying that his analysis of those limits
1 [Eds.: The entire opinion read “The motion to affirm is granted and the judgment is affirmed.”
Mayor & City Council of Baltimore City v. Dawson, 350 U.S. 877 (1955).]
has a thrust entirely lacking in the old and now forgotten judgments striking
down minimum-wage and maximum-hour laws?
If I am right in this it helps to make a further point that has more bearing
upon current issues, that I believe it misconceives the problem of the Court to
state it as the question of the proper measure of judicial self-restraint, with the
resulting issue whether such restraint is only proper in relation to protection
of a purely economic interest or also in relation to an interest like freedom of
speech or of religion, privacy, or discrimination (at least if it is based on race,
origin, or creed). Of course, the courts ought to be cautious to impose a choice
of values on the other branches or a state, based upon the Constitution, only
when they are persuaded, on an adequate and principled analysis, that the
choice is clear. That I suggest is all that self-restraint can mean and in that
sense it always is essential, whatever issue may be posed. The real test inheres,
as I have tried to argue, in the force of the analysis. Surely a stronger analysis
may be advanced against a particular uncompensated taking as a violation of
the fifth amendment than against a particular limitation of freedom of speech
or press as a violation of the first. ***
(4). – Finally, I turn to the decisions that for me provide the hardest test of
my belief in principled adjudication, those in which the Court in recent years
has vindicated claims that deprivations based on race deny the equality before
the law that the fourteenth amendment guarantees. The crucial cases are, of
course, those involving the white primary [in Smith v. Allwright (1944)], the
enforcement of racially restrictive covenants [in Shelley v. Kraemer (1948), et
al.] and the segregated schools [in Brown]. [Prof. Wechsler concludes the
primary and covenant cases provide no principled basis for the extension of
state action doctrine to those cases.] ***
Lastly, I come to the school decision, which for one of my persuasion stirs
the deepest conflict I experience in testing the thesis I propose. Yet I would
surely be engaged in playing Hamlet without Hamlet if I did not try to state
the problems that appear to me to be involved.
The problem for me, I hardly need to say, is not that the Court departed
from its earlier decisions holding or implying that the equality of public
educational facilities demanded by the Constitution could be met by separate
schools. I stand with the long tradition of the Court that previous decisions
must be subject to reexamination when a case against their reasoning is made.
Nor is the problem that the Court disturbed the settled patterns of a portion of
the country; even that must be accepted as a lesser evil than nullification of
the Constitution. Nor is it 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 are general and
leave room for expanding content as time passes and conditions change. Nor is
it that the Court may have miscalculated the extent to which its judgment
would be honored or accepted; it is not a prophet of the strength of our national
commitment to respect the judgments of the courts. Nor is it even that the
Court did not remit the issue to the Congress, acting under the enforcement
clause of the amendment. That was a possible solution, to be sure, but certainly
Professor Freund is right that it would merely have evaded the claims made.
The problem inheres strictly in the reasoning of the opinion, an opinion
which is often read with less fidelity by those who praise it than by those by
whom it is condemned. The Court did not declare, as many wish it had, that
the fourteenth amendment forbids all racial lines in legislation, though
subsequent per curiam decisions may, as I have said, now go that far. Rather,
as Judge Hand observed, the separate-but-equal formula was not overruled “in
form” but was held to have “no place” in public education on the ground that
segregated schools are “inherently unequal,” with deleterious effects upon the
colored children in implying their inferiority, effects which retard their
educational and mental development. So, indeed, the district court had found
as a fact in the Kansas case, a finding which the Supreme Court embraced,
citing some further “modern authority” in its support.
Does the validity of the decision turn then on the sufficiency of evidence or
of judicial notice to sustain a finding that the separation harms the Negro
children who may be involved? There were, indeed, some witnesses who
expressed that opinion in the Kansas case, as there were also witnesses in the
companion Virginia case, including Professor Garrett of Columbia, whose view
was to the contrary. Much depended on the question that the witness had in
mind, which rarely was explicit. Was he comparing the position of the Negro
child in a segregated school with his position in an integrated school where he
was happily accepted and regarded by the whites; or was he comparing his
position under separation with that under integration where the whites were
hostile to his presence and found ways to make their feelings known? And if
the harm that segregation worked was relevant, what of the benefits that it
entailed: sense of security, the absence of hostility? Were they irrelevant?
Moreover, was the finding in Topeka applicable without more to Clarendon
County, South Carolina, with 2,799 colored students and only 295 whites?
Suppose that more Negroes in a community preferred separation than opposed
it? Would that be relevant to whether they were hurt or aided by segregation
as opposed to integration? Their fates would be governed by the change of
system quite as fully as those of the students who complained.
I find it hard to think the judgment really turned upon the facts. Rather, it
seems to me, it must have rested on the view that racial segregation is, in
principle, a denial of equality to the minority against whom it is directed; that
is, the group that is not dominant politically and, therefore, does not make the
choice involved. For many who support the Court’s decision this assuredly is
the decisive ground. But this position also presents problems. Does it not
involve an inquiry into the motive of the legislature, which is generally
foreclosed to the courts? Is it alternatively defensible to make the measure of
validity of legislation the way it is interpreted by those who are affected by it?
In the context of a charge that segregation with equal facilities is a denial of
equality, is there not a point in Plessy in the statement that if “enforced
separation stamps the colored race with a badge of inferiority” it is solely
because its members choose “to put that construction upon it”? Does enforced
separation of the sexes discriminate against females merely because it may be
the females who resent it and it is imposed by judgments predominantly male?
Is a prohibition of miscegenation a discrimination against the colored member
of the couple who would like to marry?
For me, assuming equal facilities, the question posed by state-enforced

segregation is not one of discrimination at all. Its human and its constitutional
dimensions lie entirely elsewhere, in the denial by the state of freedom to
associate, a denial that impinges in the same way on any groups or races that
may be involved. I think, and I hope not without foundation, that the Southern
white also pays heavily for segregation, not only in the sense of guilt that he
must carry but also in the benefits he is denied. In the days when I was joined
with Charles H. Houston [a black lawyer for the NAACP who litigated many
of the cases leading to Brown] in a litigation in the Supreme Court, before the
present building was constructed, he did not suffer more than I in knowing
that we had to go to Union Station to lunch together during the recess. Does
not the problem of miscegenation show most clearly that it is the freedom of
association that at bottom is involved, the only case, I may add, where it is
implicit in the situation that association is desired by the only individuals
involved? I take no pride in knowing that in 1956 the Supreme Court dismissed
an appeal in a case in which Virginia nullified a marriage on this ground, a
case in which the statute had been squarely challenged by the defendant, and
the Court, after remanding once, dismissed per curiam on procedural grounds
that I make bold to say are wholly without basis in the law. [Naim v. Naim
(1956), an earlier challenge to the laws invalidated by Loving v. Virginia
(1967).]
But if 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,
not unlike many others that involve the highest freedoms – conflicts that
Professor Sutherland has recently described. 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.
Having said what I have said, I certainly should add that I offer no comfort
to anyone who claims legitimacy in defiance of the courts. This is the ultimate
negation of all neutral principles, to take the benefits accorded by the
constitutional system, including the national market and common defense,
while denying it allegiance when a special burden is imposed. That certainly
is the antithesis of law. ***
Charles L. Black
THE LAWFULNESS OF THE SEGREGATION DECISIONS

69 Yale L. J. 421 (1959)
If the cases outlawing segregation were wrongly decided, then they ought
to be overruled. One can go further: if dominant professional opinion ever forms
and settles on the belief that they were wrongly decided, then they will be
overruled, slowly or all at once, openly or silently. The insignificant error,
however palpable, can stand, because the convenience of settlement outweighs
the discomfort of error. But the hugely consequential error cannot stand and
does not stand.
There is pragmatic meaning then, there is call for action, in the suggestion
that the segregation cases cannot be justified. In the long run, as a corollary,
there is practical and not merely intellectual significance in the question
whether these cases were rightly decided. I think they were rightly decided, by
overwhelming weight of reason, and I intend here to say why I hold this belief.
My liminal difficulty is rhetorical—or, perhaps more accurately, one of
fashion. Simplicity is out of fashion, and the basic scheme of reasoning on
which these cases can be justified is awkwardly simple. First, the equal
protection clause of the fourteenth amendment should be read as saying that
the Negro race, as such, is not to be significantly disadvantaged by the laws of
the states. Secondly, segregation is a massive intentional disadvantaging of
the Negro race, as such, by state law. No subtlety at all. Yet I cannot disabuse
myself of the idea that that is really all there is to the segregation cases, if both
these propositions can be supported by the preponderance of argument, the
cases were rightly decided. If they cannot be so supported, the cases are in
perilous condition.
As a general thing, the first of these propositions has so far as I know never
been controverted in a holding of the Supreme Court. I rest here on the solid
sense of The Slaughterhouse Cases [(1873)] and of Strauder v. West Virginia
[(1880)] *** If Plessy v. Ferguson [(1896)] be thought a faltering from this
principle, I step back to the principle itself. But the Plessy Court clearly
conceived it to be its task to show that segregation did not really disadvantage
the Negro, except through his own choice. There is in this no denial of the
Slaughterhouse and Strauder principle; the fault of Plessy is in the psychology
and sociology of its minor premise.
The lurking difficulty lies not in “racial” cases but in the total philosophy of
“equal protection” in the wide sense. “Equal protection,” as it applies to the
whole of state law, must be consistent with the imposition of disadvantage on
some, for all law imposes disadvantage on some; to give driver’s licences only
to good drivers is to disadvantage bad drivers. Thus the word “reasonable”
necessarily finds its way into “equal protection,” in the application of the latter
concept to law in general. And it is inevitable, and right, that “reasonable,” in
this broader context, should be given its older sense of “supportable by
reasoned considerations.” “Equal” thereby comes to mean not really “equal,”
but “equal unless a fairly tenable reason exists for inequality.”
But the whole tragic background of the fourteenth amendment forbids the
feedback infection of its central purpose with the necessary qualifications that
have attached themselves to its broader and so largely accidental radiations.
It may have been intended that “equal protection” go forth into wider fields
than the racial. But history puts it entirely out of doubt that the chief and all-
dominating purpose was to ensure equal protection for the Negro. And this
intent can hardly be given the self-defeating qualification that necessity has
written on equal protection as applied to carbonic gas. If it is, then “equal
protection” for the Negro means “equality until a tenable reason for inequality
is proferred.” On this view, Negroes may hold property, sign wills, marry,
testify in court, walk the streets, go to (even segregated) school, ride public
transportation, and so on, only in the event that no reason, not clearly
untenable, can be assigned by a state legislature for their not being permitted
to do these things. That cannot have been what all the noise was about in 1866.
What the fourteenth amendment, in its historical setting, must be read to
say is that the Negro is to enjoy equal protection of the laws, and that the fact
of his being a Negro is not to be taken to be a good enough reason for denying
him this equality, however “reasonable” that might seem to some people. All
possible arguments, however convincing, for discriminating against the Negro,
were finally rejected by the fourteenth amendment.
It is sometimes urged that a special qualification was written on the concept
of “equality” by the history of the adoption of the amendment—that an intent
can be made out to exclude segregation from those legal discriminations
invalidated by the requirement of equality, whether or not it actually works
inequality. This point has been discussed and documented by Professor
Alexander Bickel, who, though he finds convincing arguments for the
conclusion that school segregation was not among the evils the framers of the
amendment intended for immediate correction, suggests that they intended at
the same time to set up a general concept for later concrete application. [See
Alexander M. Bickel, The Original Understanding and the Segregation
Decision, 69 Harv. L. Rev. 1 (1955).] Other recent writers take somewhat
similar views. The data brought forward by Professor Bickel do not seem to me
as persuasive, on his first point, as they do to him. But in supporting his second
point he develops a line of thought tending to establish that the legislative
history does not render the segregation decisions improper, and I am glad to
join him in that practical conclusion. I would add only one point: The question
of the “intent” of the men of 1866 on segregation as we know it calls for a far
chancier guess than is commonly supposed, for they were unacquainted with
the institution as it prevails in the American South today. To guess their
verdict upon the institution as it functions in the mid-twentieth century
supposes an imaginary hypothesis which grows more preposterous as it is
sought to be made more vivid. They can in the nature of the case have
bequeathed us only their generalities; the specifics lay unborn as they
disbanded. I do not understand Professor Bickel to hold a crucially different
view.
Then does segregation offend against equality? Equality, like all general
concepts, has marginal areas where philosophic difficulties are encountered.
But if a whole race of people finds itself confined within a system which is set
up and continued for the very purpose of keeping it in an inferior station, and
if the question is then solemnly propounded whether such a race is being
treated “equally,” I think we ought to exercise one of the sovereign prerogatives
of philosophers—that of laughter. The only question remaining (after we get
our laughter under control) is whether the segregation system answers to this
description.
Here I must confess to a tendency to start laughing all over again. I was
raised in the South, in a Texas city where the pattern of segregation was firmly
fixed. I am sure it never occurred to anyone, white or colored, to question its
meaning. The fiction of “equality” is just about on a level with the fiction of
“finding” in the action of trover. I think few candid southerners deny this.
Northern people may be misled by the entirely sincere protestations of many
southerners that segregation is “better” for the Negroes, is not intended to hurt
them. But I think a little probing would demonstrate that what is meant is
that it is better for the Negroes to accept a position of inferiority, at least for
the indefinite future.
But the subjectively obvious, if queried, must be backed up by more public
materials. What public materials assure me that my reading of the social
meaning of segregation is not a mere idiosyncracy?
First, of course, is history. Segregation in the South comes down in apostolic
succession from slavery and the Dred Scott case. The South fought to keep
slavery, and lost. Then it tried the Black Codes, and lost. Then it looked around
for something else and found segregation. The movement for segregation was
an integral part of the movement to maintain and further “white supremacy”;
its triumph (as Professor Woodward has shown) represented a triumph of
extreme racialist over moderate sentiment about the Negro. It is now defended
very largely on the ground that the Negro as such is not fit to associate with
the white.
History, too, tells us that segregation was imposed on one race by the other
race; consent was not invited or required. Segregation in the South grew up
and is kept going because and only because the white race has wanted it that
way— an incontrovertible fact which in itself hardly consorts with equality.
This fact perhaps more than any other confirms the picture which a casual or
deep observer is likely to form of the life of a southern community—a picture
not of mutual separation of whites and Negroes, but of one in-group enjoying
full normal communal life and one out-group that is barred from this life and
forced into an inferior life of its own. When a white southern writer refers to
the woes of “the South,” do you not know, does not context commonly make it
clear, that he means “white southerners”: When you are in Leeville and hear
someone say “Leeville High,” you know he has reference to the white high
school; the Negro school will be called something else—Carver High, perhaps,
or Lincoln High to our shame. That is what you would expect when one race
forces a segregated position on another, and that is what you get.
Segregation is historically and contemporaneously associated in a
functioning complex with practices which are indisputably and grossly
discriminatory. I have in mind especially the long-continued and still largely
effective exclusion of Negroes from voting. Here we have two things. First, a
certain group of people is “segregated.” Secondly, at about the same time, the
very same group of people, down to the last man and woman, is barred, or
sought to be barred, from the common political life of the community—from all
political power. Then we are solemnly told that segregation is not intended to
harm the segregated race, or to stamp it with the mark of inferiority. How long
must we keep a straight face?
Here it may be added that, generally speaking, segregation is the pattern
of law in communities where the extralegal patterns of discrimination against
Negroes are the tightest, where Negroes are subjected to the strictest codes of
“unwritten law” as to job opportunities, social intercourse, patterns of housing,
going to the back door, being called by the first name, saying “Sir,” and all the
rest of the whole sorry business. Of course these things, in themselves, need
not and usually do not involve “state action,” and hence the fourteenth
amendment cannot apply to them. But they can assist us in understanding the
meaning and assessing the impact of state action.
“Separate but equal” facilities are almost never really equal. Sometimes
this concerns small things—if the “white” men’s room has mixing hot and cold
taps, the “colored” men’s room will likely have separate taps; it is always the
back of the bus for the Negroes; “Lincoln Beach” will rarely if ever be as good
as the regular beach. Sometimes it concerns the most vital matters— through
the whole history of segregation, colored schools have been so disgracefully
inferior to white schools that only ignorance can excuse those who have
remained acquiescent members of a community that lived the Molochian child-
destroying lie that put them forward as “equal.”
Attention is usually focused on these inequalities as things in themselves,
correctible by detailed decrees. I am more interested in their very clear
character as evidence of what segregation means to the people who impose it
and to the people who are subjected to it. This evidentiary character cannot be
erased by one-step-ahead-of-the-marshal correction. Can a system which, in all
that can be measured, has practiced the grossest inequality, actually have been
“equal” in intent, in total social meaning and impact? “Thy speech maketh thee
manifest ...”; segregation, in all visible things, speaks only haltingly any dialect
but that of inequality.
Further arguments could be piled on top of one another, for we have here to
do with the most conspicuous characteristic of a whole regional culture. It is
actionable defamation in the South to call a white man a Negro. A small
proportion of Negro “blood” puts one in the inferior race for segregation
purposes; this is the way in which one deals with a taint, such as a carcinogene
in cranberries.
The various items I have mentioned differ in weight; not every one would
suffice in itself to establish the character of segregation. Taken together they
are of irrefragable strength. The society that has just lost the Negro as a slave,
that has just lost out in an attempt to put him under quasi-servile “Codes,” the
society that views his blood as a contamination and his name as an insult, the
society that extralegally imposes on him every humiliating mark of low caste
and that until yesterday kept him in line by lynching—this society, careless of
his consent, moves by law, first to exclude him from voting, and secondly to cut
him off from mixing in the general public life of the community. The Court that
refused to see inequality in this cutting off would be making the only kind of
law that can be warranted outrageous in advance —law based on self-induced
blindness, on flagrant contradiction of known fact.
I have stated all these points shortly because they are matters of common
notoriety, matters not so much for judicial notice as for the background
knowledge of educated men who live in the world. A court may advise itself of
them as it advises itself of the facts that we are a “religious people,” that the
country is more industrialized than in Jefferson’s day, that children are the
natural objects of fathers’ bounty, that criminal sanctions are commonly
thought to deter, that steel is a basic commodity in our economy, that the
imputation of unchastity is harmful to a woman. Such judgments, made on
such a basis, are in the foundations of all law, decisional as well as statutory;
it would be the most unneutral of principles, improvised ad hoc, to require that
a court faced with the present problem refuse to note a plain fact about the
society of the United States—the fact that the social meaning of segregation is
the putting of the Negro in a position of walled-off inferiority—or the other
equally plain fact that such treatment is hurtful to human beings. Southern
courts, on the basis of just such a judgment, have held that the placing of a
white person in a Negro railroad car is an actionable humiliation; must a court
pretend not to know that the Negro’s situation there is humiliating?
I think that some of the artificial mist of puzzlement called into being
around this question originates in a single fundamental mistake. The issue is
seen in terms of what might be called the metaphysics of sociology: “Must
Segregation Amount to Discrimination?” That is an interesting question;
someday the methods of sociology may be adequate to answering it. But it is
not our question. Our question is whether discrimination inheres in that
segregation which is imposed by law in the twentieth century in certain specific
states in the American Union. And that question has meaning and can find an
answer only on the ground of history and of common knowledge about the facts
of life in the times and places aforesaid.
Now I need not and do not maintain that the evidence is all one way; it
never is on issues of burning, fighting concern. Let us not question here the
good faith of those who assert that segregation represents no more than an
attempt to furnish a wholesome opportunity for parallel development of the
races; let us rejoice at the few scattered instances they can bring forward to
support their view of the matter. But let us then ask which balance-pan flies
upward.
The case seems so onesided that it is hard to make out what is being
protested against when it is asked, rhetorically, how the Court can possibly
advise itself of the real character of the segregation system. It seems that what
is being said is that, while no actual doubt exists as to what segregation is for
and what kind of societal pattern it supports and implements, there is no
ritually sanctioned way in which the Court, as a Court, can permissibly learn
what is obvious to everybody else and to the Justices as individuals. But surely,
confronted with such a problem, legal acumen has only one proper task—that
of developing ways to make it permissible for the Court to use what it knows;
any other counsel is of despair. And, equally surely, the fact that the Court has
assumed as true a matter of common knowledge in regard to broad societal
patterns, is (to say the very least) pretty far down the list of things to protest
against.
I conclude, then, that the Court had the soundest reasons for judging that
segregation violates the fourteenth amendment. These reasons make up the
simple syllogism with which I began: The fourteenth amendment commands
equality, and segregation as we know it is inequality. ***
I can heartily concur in the judgment that segregation harms the white as
much as it does the Negro. Sadism rots the policeman; the suppressor of
thought loses light; the community that forms into a mob, and goes down and
dominates a trial, may wound itself beyond healing. Can this reciprocity of
hurt, this fated mutuality that inheres in all inflicted wrong, serve to validate
the wrong itself?
Finally it is doubtless true that the School Segregation Cases, and perhaps
others of the cases on segregation, represented a choice between two kinds of
freedom of association. Freedom from the massive wrong of segregation entails
a corresponding loss of freedom on the part of the whites who must now
associate with Negroes on public occasions, as we all must on such occasions
associate with many persons we had rather not associate with. It is possible to
state the competing claims in symmetry, and to ask whether there are
constitutional reasons for preferring the Negroes’ desire for merged
participation in public life to the white man’s desire to live a public life without
Negroes in proximity.
The question must be answered, but I would approach it in a way which
seems to me more normal—the way in which we more usually approach
comparable symmetries that might be stated as to all other asserted rights.
The fourteenth amendment forbids inequality, forbids the disadvantaging of
the Negro race by law. It was surely anticipated that the following of this
directive would entail some disagreeableness for some white southerners. The
disagree-ableness might take many forms; the white man, for example, might
dislike having a Negro neighbor in the exercise of the latter’s equal right to
own a home, or dislike serving on a jury with a Negro, or dislike having Negroes
on the streets with him after ten o’clock. When the directive of equality cannot
be followed without displeasing the white, then something that can be called a
“freedom” of the white must be impaired. If the fourteenth amendment
commands equality, and if segregation violates equality, then the status of the
reciprocal “freedom” is automatically settled.
I find reinforcement here, at least as a matter of spirit, in the fourteenth
amendment command that Negroes shall be “citizens” of their States. It is hard
for me to imagine in what operative sense a man could be a “citizen” without
his fellow citizens’ once in a while having to associate with him. If, for example,
his “citizenship” results in his election to the School Board, the white members
may (as recently in Houston) put him off to one side of the room, but there is
still some impairment of their freedom “not to associate.” That freedom, in fact,
exists only at home; in public, we have to associate with anybody who has a
right to be there. The question of our right not to associate with him is
concluded when we decide whether he has a right to be there.
I am not really apologetic for the simplicity of my ideas on the segregation
cases. The decisions call for mighty diastrophic change. We ought to call for
such change only in the name of a solid reasoned simplicity that takes law out
of artfulness into art. Only such grounds can support the nation in its resolve
to uphold the law declared by its Court; only such grounds can reconcile the
white South to what must be. Elegantia juris and conceptual algebra have here
no place. Without pretending either to completeness or to definitiveness of
statement, I have tried here to show reasons for believing that we as lawyers
can without fake or apology present to the lay community, and to ourselves, a
rationale of the segregation decisions that rises to the height of the great
argument.
These judgments, like all judgments, must rest on the tightness of their law
and the truth of their fact. Their law is right if the equal protection clause in
the fourteenth amendment is to be taken as stating, without arbitrary
exceptions, a broad principle of practical equality for the Negro race,
inconsistent with any device that in fact relegates the Negro race to a position
of inferiority. Their facts are true if it is true that the segregation system is
actually conceived and does actually function as a means of keeping the Negro
in a status of inferiority. I dare say at this time that in the end the decisions
will be accepted by the profession on just that basis. Opinions composed under
painful stresses may leave much to be desired;2 it may be that the per curiam
device has been unwisely used. But the judgments, in law and in fact, are as
right and true as any that ever was uttered.
C. THE HISTORICAL DEBATE

In Brown v. Board of Education the Court concluded “we cannot turn the
clock back to 1868 when the [Fourteenth] Amendment was adopted” to address
the constitutionality of public school segregation. It found evidence of the
debates over the Equal Protection Clause to be “inconclusive,” and “[w]hat
others in Congress and the state legislatures had in mind cannot be
determined with any degree of certainty.” The interpretive method that would
come to be known as originalism, according to the Court, could not decide the
issues Brown presented. So the Court turned to the broader principle and
policy considerations that spurred Wechsler’s worry and Black’s response.
The following exchange in the VIRGINIA LAW REVIEW continues the
conversation about Brown’s foundations begun by Wechsler, Black, and others.
These excerpts omit the detailed historical accounts both scholars bring to bear
on the question, and instead focus on the (mis)application of the historical
record to questions of constitutional meaning answered and unanswered by
the Supreme Court.
THOUGHT QUESTIONS:
(1) Would an originalist grounding along the lines suggested by Professor
McConnell answer Professor Wechsler’s concern about principled
adjudication?
(2) Would it have answered the southern states’ concerns about the
legitimacy of Brown’s holding, and should that matter?
(3) Why might the talented lawyers (and justices) who argued (and
decided) Brown not have been able (or willing) to discover and interpret
the historical evidence McConnell presents?
2 [fn. 25] I do not mean here to join the hue and cry against the Brown opinion. The charge
that it is “sociological” is either a truism or a canard—-a truism if it means that the Court, precisely
like the Plessy Court, and like innumerable other courts facing innumerable other issues of law,
had to resolve and did resolve a question about social fact; a canard if it means that anything like
principal reliance was placed on the formally “scientific” authorities, which are relegated to a
footnote and treated as merely corroboratory of common sense. It seems to me that the venial fault
of the opinion consists in its not spelling out that segregation, for reasons of the kind I have brought
forward in this Article, is perceptibly a means of ghettoizing the inferior race. (I would conjecture
that the motive for this omission was reluctance to go into the distasteful details of the southern
caste system.) That such treatment is generally not good for children needs less talk than the
Court gives it.
(4) Is Professor Klarman correct that Professor McConnell’s interpretation

of the historical evidence (and constitutional meaning) is ahistorical, or
does originalism require its own historicism?
(5) When and how, according to Professor Klarman’s “historicist” approach
to constitutional law, is it appropriate to criticize constitutional
judgments as law instead of contextualizing them as history?
(6) If Brown’s reasoning is better explained by historical context than
constitutional law, at what point in history does law start doing the
important work of justification, and when can critics start engaging
those legal justifications on their own terms?
(7) Professor McConnell had the last word in his exchange with Professor
Klarman:
[W]e should not fail to perceive the underlying assumption that
[Professor Klarman] brings to his scholarship: there is no point
in trying to figure out whether decisions were right or wrong -
in “justifying” decisions or explaining why they were
“mistakes.” We should understand constitutional decisions as
nothing more than “inevitable byproducts of very different
political and social milieus.” … [T]his is not just an attack on
originalism. It is an attack on the traditional enterprise of
constitutional law, in which the meaning of the Constitution is
seen to be a legitimate question for historical and interpretive
inquiry.”
Michael W. McConnell, The Originalist Justification for Brown: A Reply
to Professor Klarman, 81 Va. L. Rev. 1937, 1954-1955 (1995). Who has
the better of this broader argument about the “the traditional enterprise
of constitutional law”?
Michael W. McConnell
ORIGINALISM AND THE SEGREGATION DECISIONS

81 Va. L. Rev. 947, 949, 952-955, 1117, 1119-1123, 1125-1128, 1131-1140
(1995)
Chief Justice Earl Warren’s unanimous opinion for the Supreme Court in
Brown v. Board of Education made no pretense that its interpretation was an
authentic translation of what the Fourteenth Amendment meant to those who
drafted and ratified it. The Court described the historical sources as “[a]t best,
. . . inconclusive.” This “at best” carries the strong implication that in the cold,
hard eye of objective historical examination, the sources point the other way.
Stating that “we cannot turn the clock back to 1868 when the Amendment was
adopted,” the Court based its decision primarily on the “modern authority” of
social science. Brown was arguably the first explicit, self-conscious departure
from the traditional view that the Court may override democratic decisions
only on the basis of the Constitution’s text, history, and interpretive tradition
-- not on considerations of modern social policy. ***
The supposed inconsistency between Brown and the original meaning of the
Fourteenth Amendment has assumed enormous importance in modern debate
over constitutional theory. Such is the moral authority of Brown that if any
particular theory does not produce the conclusion that Brown was correctly
decided, the theory is seriously discredited. Thus, what once was seen as a
weakness in the Supreme Court’s decision in Brown is now a mighty weapon
against the proposition that the Constitution should be interpreted as it was
understood by the people who framed and ratified it.
The thesis of this Article is that the consensus is wrong. *** For these
purposes there is no need to plumb the inner feelings, motivations, or private
opinions of the participants in the controversy over the 1875 Act -- to separate
sincerity from hypocrisy, political calculation from principle, or ambivalence
from conviction. Other studies of the period have emphasized the sociological
and political context. Constitutional interpretation by its nature depends on
public statements and public acts. An argument made on the floor of Congress,
even if insincere, tells us something about the speaker’s judgment of his
audience: what arguments the speaker thought were likely to persuade. I do
not doubt that many of the proponents of strong civil rights measures in
Congress entertained misgivings in private and had mixed motives for their
actions. But what matters is their public position on what the Constitution
means. This is a study of the legal thinking of the antagonists in the debate,
and for this purpose it is necessary to take their arguments seriously on their
own terms. ***
It should be obvious that the historical issue raised here is more important
for its implications for constitutional interpretive methodology than for the
legitimacy of Brown, which is utterly secure. But I believe it casts light on the
meaning of the Fourteenth Amendment, as well. To understand how Congress
went about enforcing the Fourteenth Amendment is to gain insight into many
doctrinal issues of importance today, including state action; the extent of
congressional enforcement authority; the relevance of intent and effect; the
meaning of “equality” as a matter of formally equal treatment or of racial
subordination; the relation between due process, equal protection, and
privileges and immunities; and many more. ***
[Reviewing the Congressional debates in the years following ratification of
the Fourteenth Amendment, Prof. McConnell concludes “school segregation
was understood during Reconstruction to violate the principles of equality of
the Fourteenth Amendment. Between 1870 and 1875, both houses of Congress
voted repeatedly, by large margins, in favor of legislation premised on the
theory that de jure segregation of the public schools is unconstitutional. The
desegregation bills never became law because, for procedural reasons, a two-
thirds majority of the House of Representatives was required for final passage.
Even so, the Reconstruction Congress passed legislation prohibiting
segregation of inns, theaters, railroads, and other common carriers, and
rejected legislation that would have countenanced segregated education on a
separate-but-equal basis.”]
IV. The Supreme Court’s Desegregation Decisions
Now we are able to examine the Supreme Court’s principal decisions
regarding desegregation in light of the original understanding, as revealed in
the debates over the Civil Rights Act of 1875. I consider only the most
important decisions: one contemporaneous with deliberations over the Act, one
decided a generation later in the heyday of Jim Crow legislation, and, finally,
one that brought the era of formal de jure segregation to an end.
A. The First Desegregation Decision
Surprisingly few people -- even among constitutional lawyers -- have heard
of the Supreme Court’s first case involving the lawfulness of racial segregation.
Yet in 1873, in Railroad Company v. Brown, (a remarkable coincidence of
names) the Supreme Court unanimously held that the cars of a commuter
railway must be desegregated, on the ground that segregated facilities are
inherently unequal [contrary to the Congress’s condition “that no person shall
be excluded from the cars on account of color.”] This, according to the Court,
was the prevailing view in Congress in the mid-1860s. ***
This first desegregation case did not involve the Fourteenth Amendment,
but presented merely a statutory question, and it is perhaps for this reason
that it has been forgotten. Yet at heart, the issue is not much different from
the question as it would arise under the Fourteenth Amendment: whether
separate but equal facilities are a form of racial discrimination. On this point,
it is significant that the Court did not merely find that its interpretation was
the most plausible. It found the meaning “obvious” and the counterargument
“ingenious.” It used the term “discrimination” three times as embracing
segregation. The Court specifically recalled “the temper of Congress at the
time” and described it as “manifest” that Congress would not have allowed the
railroad to extend its line if it were going to segregate the cars. This was the
only time during Reconstruction that the Supreme Court would address the
issue of segregation, and the opinion in Brown reinforces the conclusion of the
1875 Act debates: that, contrary to the conventional wisdom, during the brief
period between the end of the Civil War and the end of Reconstruction
segregation was widely considered discriminatory and unjust. Just possibly,
the Supreme Court understood “the temper of Congress at the time” of the
Fourteenth Amendment better than it has been understood since.
B. Plessy v. Ferguson
At issue in the 1875 Act debates was whether federal law could forbid
private railroads and other common carriers to segregate their passengers by
race. By the time of Plessy v. Ferguson in 1896, the issue was whether state
law could compel segregation. Plessy involved a Louisiana statute, passed in
1890, requiring railroads in the state to “provide equal but separate
accommodations for the white, and colored races, by providing two or more
passenger coaches for each passenger train, or by dividing the passenger
coaches by a partition so as to secure separate accommodations.” Statutes of
this sort, which were a recent development in state law, were strongly opposed
both by black citizens and by many railroads. Maintenance of separate
facilities was a considerable expense, which railroads did not care to
undertake. Indeed, in many Southern states an alliance between black citizens
and railway interests successfully staved off Jim Crow legislation until the
turn of the century, after Plessy had already been decided. The railroad
company in the Plessy case cooperated with the challenge to the law, and it is
rumored that it may even have contributed to the costs of Plessy’s litigation.
Over a justly famous dissent by Justice John Marshall Harlan, the Supreme
Court upheld the Louisiana statute. ***
In the most obvious sense, Plessy involved precisely the question debated
and resolved by the Congress in 1875: whether black citizens have a
constitutionally protected right, equal to that of white citizens, to
accommodation on common carriers such as railroads. But the Court reached
an answer opposite to that reached by the Congress in 1875. To the Congress,
segregation of common carriers was a violation of the letter as well as the spirit
of the Fourteenth Amendment. Railroads had well established common law
obligations to serve all paying customers without discrimination; application
of the 1875 Act to railroads was the least controversial part of the proposed
bill…. Proposals to allow separate but equal facilities were repeatedly rejected,
the last attempt, in February 1875, failing by a vote of 91-114 in the House.
Each of the arguments accepted by the Plessy majority had been urged in
debate by the Act’s opponents, but had been refuted by the proponents and
ultimately rejected. The Court began its analysis of the Fourteenth
Amendment issues with the proposition, familiar from the Civil Rights Act
debates, that desegregation was an attempt to enforce “social equality.” ***
[T]he “social equality” argument was even more implausible in Plessy than in
the 1875 Act debates, because the question in Plessy was not whether the state
would seek to enforce equality upon unwilling private parties, but whether the
state could prevent willing parties from associating voluntarily with one
another. ***
The Plessy Court also reiterated arguments, offered unsuccessfully by
opponents of the 1875 Act, that segregation is not a form of inequality. ***
Rather than argue that segregation is definitionally equal treatment, the
majority in Plessy argued that, understood in light of the social circumstances,
segregation of the races did not “necessarily imply the inferiority of either race
to the other.” *** This echoes many statements by opponents of the 1875 Act….
The argument, however, did not carry the day in the 1875 Act debates. ***
Indeed, the Plessy majority, like the opponents of the 1875 Act, engaged in self-
contradiction on this point. On the one hand, they maintained that segregated
facilities are objectively equal, but on the other they complained that
desegregation was an attempt to foster “social equality.” But if segregated
facilities really were equal, then social equality already would exist. If
members of the “white race” -- including the Justices in the majority -- “choose”
to construe racially mixed facilities as an imposition of “social equality,” how
can they fault the “black race” for construing segregated facilities as an
imposition of social inequality? ***
Finally, according to the Court, the case “reduces itself to the question
whether the statute of Louisiana is a reasonable regulation,” and in
“determining the question of reasonableness [the state] is at liberty to act with
reference to the established usages, customs and traditions of the people.” This
analysis -- the key to the decision -- is mistaken as to both law and fact. It is
true that the established usages, customs, and traditions of the people are
relevant to determining the civil rights (or privileges or immunities) of the
people. That is why application of the Act to schools was a genuinely difficult
question in 1875. But established usages, customs, and traditions were not
relevant to determining whether to allow distinctions of race or color with
respect to those traditionally-established civil rights. Indeed, the Fourteenth
Amendment was understood and intended to make an upheaval in the
established usages, customs, and traditions of the people with regard (at least)
to the equal citizenship of the race of former slaves. The content of “civil rights”
may be conventionally determined, but the equality of rights is fixed by
constitutional law. That is the essential, fundamental normative core of the
Amendment, which even opponents of the 1875 Act could not deny.
Thus, even if it were true that railroads customarily were required to
separate passengers by race, it would not justify the practice under the
Fourteenth Amendment. But it was not true. Far from being an “established
usage, custom, or tradition,” the Jim Crow law in Plessy was an innovation.
The Louisiana legislature passed the law in 1890, less than two years before
Homer Plessy sought a seat in the white people’s coach on the East Louisiana
Railway. The first such law in the land -- that of Florida -- was passed in 1887.
The “established custom,” after the end of Reconstruction, was to leave this
matter to the discretion of the private market, which sometimes resulted in
segregation and sometimes resulted in mixed transportation. Jim Crow laws
were passed toward the end of the century in order to change the status quo --
to mandate a degree of separation between the races far more rigid and
complete than the disorganized private sphere had produced.
There was a real irony, then, in the Court’s claim that “[l]egislation is
powerless to eradicate racial instincts or to abolish distinctions based upon
physical differences.” It was the Jim Crow legislators in the Southern states
(not Plessy) who sought to use legislation to affect racial instincts -- to shore
up and intensify racial prejudice that was not strong enough to produce
thoroughgoing apartheid without the assistance of law. *** No one in Plessy
was seeking “legislation” to abolish distinctions; Plessy was challenging
legislation enforcing racial distinctions imposed upon the private market by
the state. The Court was wrong in framing the issue as whether the Fourteenth
Amendment would “enforce social . . . equality.” The question was whether the
Amendment would tolerate state legislation to enforce social inequality.
As has been seen, the congressional majority in the years immediately
following ratification of the Fourteenth Amendment believed that the common
law had already interfered with the private market with respect to the duty of
common carriage and public accommodation. They therefore understood
themselves simply to be extending the same rights to black citizens as already
existed for whites. Some thought that this went too far in invading the rights
of private businesses, but they were voted down. Against this backdrop, Plessy
was not a difficult case. If the majority thought that segregation must be
prohibited, and a large part of the minority thought that it should be left to
private choice, that does not leave much support for a law that interferes with
private choice by compelling segregation.
C. Brown v. Board of Education
Just as the Court unconsciously echoed the arguments of opponents of the
1875 Act in its opinion in Plessy, the central proposition of Chief Justice Earl
Warren’s opinion in Brown v. Board of Education could have come from the
mouth of Charles Sumner. To separate children “from others of similar age and
qualifications solely because of their race,” Warren wrote, “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.” The Plessy Court had good
reason to be silent about the source of its ideas: the historical authorities
standing behind the Plessy decision were, for the most part, senators and
representatives hostile to the Fourteenth Amendment and the 1875 Act. To
rely openly on the arguments of the opponents would have tended to discredit
the decision. By contrast, the historical progenitors of the Brown decision were
the champions of the Reconstruction Amendments and, on relevant
constitutional issues, the victors in the debates over its meaning and
enforcement.
One would never know this from reading the opinions. Indeed, the Brown
opinion, with its talk of not “turn[ing] the clock back,”3 gives every impression
that the Court thought it was struggling against the historical understanding
and original meaning of the Constitution -- an impression that, I am now
convinced, was unnecessary and even misleading. The Court summarized the
historical evidence in just three sentences:
The most avid proponents of the post-War Amendments undoubtedly
intended them to remove all legal distinctions among “all persons born or
naturalized in the United States.” Their opponents, just as certainly, were
antagonistic to both the letter and the spirit of the Amendments and wished
them to have the most limited effect. What others in Congress and the state
legislatures had in mind cannot be determined with any degree of certainty.
The problem with this summary is that it treats the relevant dispute as
between the “most avid proponents” of the Amendment and those
“antagonistic” to it. But the Amendment passed. That is no longer the question.
The question now is what the Amendment meant -- not to its most avid
proponents or most virulent enemies, but to the great mass of citizens and their
representatives, who had the authority to add this Amendment to the
Constitution. That a significant segment of the population was hostile to the
Amendment is utterly irrelevant to its meaning (except insofar as their
understanding of the meaning of the Amendment casts light on its commonly
accepted meaning). Nor does it matter what the Amendment’s most avid
proponents “intended” (except insofar as they claimed, and others accepted,
that their intentions had been embodied in the Amendment). And most
importantly, the summary implies that nothing useful is known about what
“others in Congress and the state legislatures” thought. These “others” --
presumably those who supported the Amendment but were not its “most avid”
proponents -- were no less articulate than the extremes. They participated in
deliberations, they voted, and they made constitutional arguments. They
provided the votes to pass legislation outlawing segregation in common
carriers, and majority support in both houses for legislation to desegregate the
public schools. The uncertainties here are not greater than in other areas of
3 [fn. 859] The Court's full statement was that “we cannot turn the clock back to 1868 when
the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.” The word
“even” in this sentence is very odd, for it suggests that it would have been less of a strain to turn
the clock back to 1896 than to 1868. It suggests that the Court saw the jurisprudential challenge
more in terms of precedent (Plessy in 1896) than original understanding (ratification in 1868). If
the Court had taken an originalist approach, it would have seen that the history of the
Reconstruction period offered a principled basis for rejecting the erroneous precedent of 1896 . . .
constitutional law, in which the Court boldly acts on the basis of the best
knowledge it can summon about the relevant provisions.
From a vantage point of forty years, it may not seem to matter much that
the Court missed the historical argument, so long as it reached the proper
decision. But at the time of Brown, it was far from clear that the Court’s
decision would carry the day. It invited massive resistance in the South, much
of it in the enraged tones of those who thought that the Constitution had been
willfully misinterpreted in service of social engineering. It was, indeed, more
than a decade before the desegregation decision was actually enforced -- and
then, the agent of change was the Congress. The first and foremost public
argument of the resistance was based on history. The so-called Southern
Manifesto (signed by virtually the entire congressional delegations of the
states of the Deep South, thereby lending respectability and authority to the
resistance) was based primarily on the supposed inconsistency between the
Court’s decision and the history of the Fourteenth Amendment.4 It invoked the
debates over the Fourteenth Amendment, segregation of schools in the District
of Columbia, practices of the Northern states, and other popular half-truths
canvassed in Section I of this Article. The Manifesto exploited the Court’s
implicit concessions regarding this history to full advantage, and declared that
the Court “with no legal basis for such action, undertook to exercise their naked
judicial power and substituted their personal political and social ideas for the
established law of the land.” Might it not have helped for the Court to have
shown that its “personal political and social ideas” were shared by the
champions of the Amendment at the time -- and even conceded, in important
respect, by much of the Southern Democratic opposition? While not even the
most effective opinion for the Court could have easily reconciled the
segregationist South to this seemingly radical social change, the opinion
offered no answer to the critics on what they perceived to be their strongest
ground. If ever the Court needed to invoke the hallowed authority of the
framers of the Constitution, this was the time. But the Court did not, and due
to its neglect of history, could not.
Having unnecessarily created the impression that the historical
understanding of the Fourteenth Amendment was consistent with de jure
segregation, the Court proceeded to address the constitutional question in
ways that are curious, and seemingly counterproductive. As noted above, the
two grounds for legal argument over the constitutionality of segregated public
education are: (1) whether education is a civil right, and (2) whether
segregation is unequal. The Brown opinion addresses both of these issues, but
in ways that depart from the theoretical grounding of the desegregation
legislation of the Reconstruction Congress.
The Court correctly noted that the place of education in American life had
undergone a dramatic transformation in the years between enactment of the
Fourteenth Amendment and the decision in Brown, and that these changes
were relevant to the constitutional question. In the earlier era, no child -- white
or black -- could be said to have a “right” to a common school education in much
4 [fn. 862] The Southern Manifesto was the most authoritative and widely publicized statement
of opposition to Brown.
of the nation. The common school system, especially in the South, was uneven,
spottily funded, and in many localities nonexistent. This gave some plausibility
to the claims of those opponents of school desegregation legislation who
claimed that education was not a civil right. As the Brown Court noted,
however, things had changed by 1954, and this should have produced a
different legal conclusion.
Unfortunately, the Brown Court did not frame the question in terms of
whether education was a civil right, but rather in terms of whether education
was “important.” This rather missed the point. Not everything that is
“important” is a civil right and -- more to the point -- not everything that is a
civil right is “important.” The constitutional principle is that black citizens are
entitled to a perfect and complete equality in all matters of civil right.
The analytical confusion is compounded by the Court’s apparent belief that
the importance of education is a feature that could distinguish Brown from
Plessy. While far from clear, the most natural reading of Brown is that the
desegregation principle applies only “in the field of public education” and not
to transportation or other areas of life. In light of the Court’s discussion of the
“importance” of education, the apparent rationale for distinguishing education
from transportation is that the latter does not have such a strong connection
to “democratic society,” the performance of “public responsibilities,” “good
citizenship,” or the “opportunity” to “succeed in life.” The irony is that, in the
nineteenth century, the right to nondiscriminatory access to common carriers
was far more firmly established as a “civil right” than was the incipient right
to a public education. As education evolved into an enforceable legal right, that
did not differentiate it from the right to common carriage, but put it on the
same constitutional footing. The Court’s attempt to distinguish rather than
overrule Plessy is utterly inconsistent with the constitutional theory on which
the Civil Rights Act of 1875 rested.
Moreover, this analytical confusion had a practical consequence. Many
Southerners, not unnaturally, read the opinion as implying that in matters of
lesser importance, including transportation, segregation would be permissible.
This purchased trouble for future cases. Education may well be “the most
important function of state and local governments,” but in the years
immediately after Brown, plaintiffs brought cases involving segregation of
some distinctly less important functions of government, from airport coffee
shops to municipal auditoriums. What would be the Court’s answer in those
cases? It decided these cases -- among the most controversial in its history --
by per curiam orders and summary dispositions, without any serious
discussion of the merits. Never did the Court get around to informing the
nation of the legal basis for desegregating the South, outside the context of
education. In Johnson v. Virginia, a case involving a segregated courtroom
decided eight years after Brown, the Court finally announced that “a State may
not constitutionally require segregation of public facilities.” The only reason
the Court gave, however, was that this issue was “no longer open to question.”
It is embarrassing that the first of the three cases cited for this proposition,
Mayor of Baltimore City v. Dawson, had supplied no reasons whatsoever; the
second, Turner v. City of Memphis, rested solely on the precedents of Dawson
and Brown, with no explanation for the extension of the holding; and the third
was Brown, which appeared to be based, in some sense, on the peculiarly
important character of education. The Court thus forfeited its opportunity to

explain the real basis for its decision, which is rooted in an equality of rights -
- not in the importance of education.
The second constitutional issue was whether segregation is a form of
inequality. Here the Brown opinion is on stronger ground, in its rejection of the
Plessy Court’s conclusion that segregation does not import a stigma of
inequality. But even here, the Court adopted a rhetoric that would give color
to the resistance. Rather than root its decision in constitutional and legal
principle, historical evidence, or even in the common sense of the matter, the
Brown Court portrayed its disagreement with the reasoning of Plessy as
turning on differences in “psychological knowledge.” In a famous footnote, the
Court cited books and articles from the social science literature, concluding
that its holding was thus “amply supported by modern authority.” This
weakened the force and persuasiveness of the Court’s holding, for two reasons.
First, it made the unconstitutionality of segregation appear to be contingent
on controversial and potentially changeable empirical judgments, in the
evaluation of which the Supreme Court has no natural competence or
authority. The problem was particularly acute because the leading piece of
social science evidence, Kenneth Clark’s famous study of the selection of black
and white dolls, did not evidently support the Court’s conclusion. [Fn. 881 “The
study had no control group, and when replicated in jurisdictions with
desegregated schools showed effects even larger than those in the South.”] This
invited such reactions as the notorious trial in the Southern District of Georgia,
in which the court took evidence on the empirical validity of the social science
evidence in Brown and, having concluded that it was faulty, refused to follow
the decision.
Herbert Hovenkamp’s study, Social Science and Segregation Before Brown,
offers the further cautionary note that the nineteenth-century decisions
upholding segregation were based on then-prevailing social scientific
knowledge no less than Brown was based on the social scientific knowledge of
its day. There is no reason to assume modern “science” -- or for that matter,
modern philosophy -- will be congruent with our constitutional principles.
Social science evidence certainly has its place in the law, and judges should not
be ignorant of the real-world effects of their decisions. But the Court sacrifices
its position of authority when it makes judgments appear to rest on contested
issues of empirical fact, ordinarily the stuff of legislative resolution, instead of
constitutional principles, which are entrusted to the Court’s charge. To
submerge the issue of constitutional principle weakened the force of the Court’s
opinion in Brown.
Second, the emphasis on the psychological and pedagogical effects on black
schoolchildren distracted attention from the social function of segregation in
Southern society…. The key issue was equality before the law. Even if the
motivations and achievements of black schoolchildren were not measurably
affected by segregation, it still would be inconsistent with the Fourteenth
Amendment’s insistence on equality of citizenship for the state to brand
members of one race as too “inferior and degraded” to mix with the other.
This is not a proposition of psychology, to be studied in controlled
experiments and disputed in technical journals. It is a matter of constitutional
principle and common moral understanding. When segregationists complained
of the attempt to force “social equality,” they were admitting, quite clearly, that
segregation is part and parcel of a system of inequality. The Court should have
held that the state may play no part in such a system. That is what Sumner
would have said:
It is easy to see that the separate school founded on an odious
discrimination and sometimes offered as an equivalent for the common
school, is an ill-disguised violation of the principle of Equality . . . .
. . . Colored children, living near what is called the common school, are
driven from its doors, and compelled to walk a considerable distance, often
troublesome and in certain conditions of the weather difficult, to attend the
separate school. One of these children has suffered from this exposure, and
I have myself witnessed the emotion of the parent. . . . Now, it is idle to
assert that children compelled to this exceptional journeying to and fro, are
in the enjoyment of equal rights.
. . . The indignity offered to the colored child is worse than any
compulsory exposure, and here not only the child suffers, but the race to
which he belongs is blasted and the whole community is hardened in wrong.
. . . Surely the race enslaved for generations has suffered enough without
being compelled to bear this prolonged proscription.
And we should not allow the ultimate fate of the Civil Rights Act of 1875 to
obscure the fact that on this fundamental interpretation of the requirement of
equality, Sumner carried large majorities of both houses of Congress with him,
even as Reconstruction was drawing to a close. Sumner’s words were the
authentic voice of the Reconstruction Amendments, well worth the effort of
turning the clock back. ***
Michael J. Klarman
BROWN, ORIGINALISM, AND CONSTITUTIONAL THEORY:

A RESPONSE TO PROFESSOR MCCONNELL
81 Va. L. Rev. 1881-1884, 1915, 1928-1936 (1995)
Is the Supreme Court’s decision in Brown v. Board of Education consonant
with the original understanding of the Fourteenth Amendment? If “original
understanding” is taken to mean the Framers’ specific intentions with regard
to the practice of school segregation, the overwhelming consensus among legal
academics has been that Brown cannot be defended on originalist grounds.
Those who have sought to reconcile Brown with the original understanding
have done so by elevating the level of generality at which the Framers’
intentions are described -- for example, by highlighting their decision to employ
general equality language rather than to enumerate a list of prohibited
practices and protected rights. In an important and provocative recent article,
Professor Michael McConnell argues that Brown is susceptible of a more
persuasive originalist justification than most commentators have appreciated.
Focusing upon the congressional debates surrounding the 1875 Civil Rights
Act (“1875 CRA”), McConnell argues that in 1874 a majority of both Houses of
Congress evinced support for compulsory school desegregation. Because these
debates constitute the most extensive congressional discussion of the school

segregation issue during Reconstruction, McConnell contends, they shed
important light on the original understanding of the Fourteenth Amendment.
McConnell makes an important contribution to our understanding of
congressional attitudes toward school segregation in the 1870s. He
demonstrates the existence of far broader support for school integration than
many constitutional scholars would have thought likely at this early date.
Furthermore, McConnell is persuasive that this congressional support for
school desegregation should be understood not merely as a policy preference,
but also as probative of constitutional interpretation -- that is, most
congressmen at the time would have understood the congressional
enforcement power under Section Five of the Fourteenth Amendment as
limited in scope to the rights protected against state interference by Section
One. Finally, McConnell offers tantalizing support for the proposition that,
even if the original understanding of the Fourteenth Amendment cannot
justify Brown, it can condemn Plessy v. Ferguson, since most congressional
Republicans apparently deemed racial segregation on common carriers to be
unconstitutional.
Yet the crux of McConnell’s claim is unpersuasive: He fails to show either
that Brown is correct on originalist grounds, or even, as he more modestly
claims, that Brown is “within the legitimate range of interpretations” of the
Fourteenth Amendment….
I. The Original Understanding of the Fourteenth Amendment Does
Not Support Brown
McConnell’s effort to justify Brown on originalist grounds fails for four
independent reasons. First and foremost, McConnell neglects sufficiently to
consider the political and social context in which the Fourteenth Amendment
was drafted and ratified. It is inconceivable that most -- indeed even very many
-- Americans in 1866 - 68 would have endorsed a constitutional amendment to
forbid public school segregation. McConnell focuses excessively on what the
Fourteenth Amendment must have meant, given the conceptual legal
apparatus with which Republicans approached issues of racial equality, and
insufficiently on the practical reality that racial mores in most of the country
in the mid-1860s were hostile to school desegregation. Second, McConnell
never adequately defends his particular brand of originalism -- that the
meaning of the Fourteenth Amendment reposes in the intentions of its
congressional drafters, rather than in those of its state legislative ratifiers (or
of either’s constituents, manifesting their preferences at the polls). Thus he
fails to show why opposition to school segregation as manifested in
congressional debates on the 1875 CRA should count more heavily in the
originalist calculus than does popular hostility toward school desegregation as
manifested in the overwhelming repudiation of the Republican Party in the
1874 congressional elections. Third, McConnell’s argument relies almost
entirely upon congressional debates occurring between 1872 and 1874. He pays
insufficient attention to the possibility that civil rights sentiment changed
dramatically between 1866 and 1872-74 and thus that the congressional
debates on the 1875 CRA might constitute unreliable evidence of what
congressmen intended when they drafted the Fourteenth Amendment. Fourth
and finally, McConnell exaggerates the extent to which congressmen who
supported the schools provision of the civil rights bill in 1874 understood its
“full and equal enjoyment” language to require desegregation, as opposed to
simply prohibiting exclusion of blacks altogether from public education. ***
II. Problems with Originalism
Originalism as a theory of constitutional interpretation is rife with
problems, which have been amply rehearsed in the literature. In attempting to
justify Brown on originalist grounds, McConnell unintentionally illuminates
several of these difficulties. I shall limit myself here to three of originalism’s
principal problems: (1) the antidemocratic nature of binding future generations
to the constitutional values enshrined at a single fortuitous moment in time;
(2) the problem of determining whose intentions should govern -- those of the
drafters or of the ratifiers -- and of ascertaining what their intentions were;
and (3) the difficulty of defending a focus on one out of many possible levels of
abstraction at which to interpret the original intent. All three problems plague
McConnell’s originalist defense of Brown. ***
III. Brown, Constitutional Theory, and the Problem of Ahistoricism
It is not surprising that Professor McConnell undertook his originalist
defense of Brown. As he states in his introduction, any constitutional theory
unable to accommodate Brown “is seriously discredited.” Because public
attitudes toward state-mandated racial discrimination and segregation have
undergone such revolutionary transformation in the last generation, nobody
today cares to be portrayed as a defender of the practices that Brown
invalidated. While, conceptually, it is possible to criticize Brown as a matter of
constitutional theory without simultaneously endorsing the white supremacist
beliefs that underlay the institution of school segregation, in practice this
separation has not been so easily accomplished.
The implications of this point are limited neither to originalists, nor to the
broader category of politically conservative constitutional theorists. A liberal
constitutionalist such as Bruce Ackerman, whose “constitutional dualism”
seeks to justify a good deal more Warren Court activism than does McConnell’s
brand of originalism, has also gone to great lengths to justify Brown. Even John
Hart Ely’s famous effort to defend the prejudice prong of the Carolene Products
footnote can be understood primarily as an attempt to justify Brown.
Nonetheless, defending Brown arguably has been of greater urgency for
conservative constitutional theorists than for liberals. The explanation seems
straightforward. First, political conservatives today espouse a variety of public
policy positions that are contrary to those embraced by a majority of African
Americans -- for example, with regard to affirmative action, disparate impact
rules, welfare policy, and so forth. Thus, fairly or not, conservatives are
susceptible to the charge of racial insensitivity or even racism. Second, that
susceptibility is compounded by the fact that in 1954 it was, generally
speaking, conservatives who criticized the Brown decision -- on grounds of
federalism, originalism, the inability of law to coerce social change, etc.
Thus it is perfectly understandable, if unfortunate, that conservatives have
felt compelled to adjust/distort their constitutional theories to accommodate
Brown. Robert Bork is perhaps the most famous exemplar of this phenomenon,
though other conservatives have also succumbed to this temptation. That a

conservative commentator like McConnell should offer a new and invigorated
originalist defense of Brown is thus entirely predictable.
Yet most of the recent theoretical justifications for Brown, whether liberal
or conservative, are no more convincing than is McConnell’s. It is unfortunate
that constitutional theorists have felt so compelled to make the effort. The
perceived exigency of justifying Brown represents, I believe, one manifestation
of the beleaguerment of constitutional theory by ahistoricism -- that is, the
failure to understand the past contextually.
In 1995 Brown seems unambiguously right, if anything is right. For a
constitutional theory to be unable to justify such a normatively compelling
result seems fatal. Yet Brown in 1954 was not seen to be so obviously correct.
Contemporaneous opinion polls revealed the country to be divided roughly in
half on the segregation issue; archival evidence shows the justices deciding
Brown to have been terribly conflicted; and the President of the United States
privately deemed the decision to have been a grave mistake. For a particular
constitutional theory to be unable to justify a decision that was
contemporaneously so controversial seems far less devastating than its
inability to accommodate a result that is universally applauded.
This perceived exigency to justify Brown is not the only consequence of
approaching constitutional theory ahistorically. Just as we seem reluctant to
acknowledge that Brown in its time was a genuinely controversial decision, so
do we seem unwilling to accept the converse -- that certain rulings that are
universally condemned today were quite uncontroversial in their time and
probably were not realistically subject to contrary resolution. Much as the felt
imperative to justify Brown has distorted normative constitutional theory, the
perceived exigency to discredit decisions such as Plessy has distorted positive
constitutional theory, by inflating our evaluation of the Court’s capacity to
protect minority rights from majoritarian oppression.
Scholarly treatments of Plessy and Korematsu v. United States are perhaps
the most notorious examples of our resistance to understanding within their
historical context past decisions whose values are universally repudiated
today. An historicist approach would regard such decisions as regrettable, but
essentially inevitable, given the background social and political context within
which the Court necessarily functions. Most modern constitutional
commentators, however, have portrayed these decisions as unfortunate
“mistakes,” which realistically could have been averted had the justices simply
displayed a little greater wisdom, fortitude or good faith. Yet it is implausible
to believe that either Plessy or Korematsu (at least at a time when the war’s
result was genuinely in doubt) could have come out the other way, given the
background context of the decisions and the limited countermajoritarian
inclinations and capacities of the justices. No Court decision in American
history has been that countermajoritarian.
Misdescribing the Court’s past failures to protect the civil rights and civil
liberties that are so valued today as avoidable “mistakes,” rather than as
inevitable byproducts of very different political and social milieus, enables us
to sustain the myth of the Court as “countermajoritarian hero.” The myth can
survive only if obvious counterexamples are dismissed as contingent mistakes
rather than understood, more realistically, as the Court’s inevitable
capitulations to dominant social norms.
Moreover, just as we write off the Court’s many past failures to protect civil
rights and civil liberties as aberrant exceptions, so do we exaggerate the
countermajoritarian nature of the Court’s actual interventions. The culprit,
once again, is our failure to approach the subject with adequate sensitivity to
historical context.
Constitutional scholars have paid exceedingly little attention to the
historical forces -- political, social, economic, ideological, cultural -- that
rendered possible the twentieth-century civil rights and civil liberties
revolution. By essentially ignoring the forces that rendered possible the Court’s
interventions, constitutional scholars and judges have ascribed undue
responsibility for the legal changes to the Court. Thus, to take just one
prevalent example, legal scholars have overwhelmingly portrayed Brown as
the principal cause of the civil rights revolution, rather than seeing the decision
itself as the product of deep social and political forces impelling the nation
gradually but ineluctably toward greater racial equality -- forces such as the
Great Migration, the increasing urbanization of the black population, the
decline of Southern agriculture, the increasing potency of the Northern black
vote, the burgeoning black middle class, increasing black literacy rates, the
egalitarian ideology of World War II, the Cold War imperative for racial
change, and the growing social and economic integration of the nation. This
scholarly neglect of background historical forces has produced a widespread
conviction that the Court has played, and can continue to play, a more
fundamental role in safeguarding civil rights and civil liberties than is
plausibly the case.
Constitutional theory -- both normative and positive -- would thus benefit
from a substantial dose of historicism. Resisting the natural tendency to think
about the past ahistorically would permit an end to the demand that all
constitutional theories be able to justify Brown -- a decision that resisted easy
justification on the basis of the traditional sources of constitutional
interpretation (and that was plainly indefensible on narrow originalist terms).
Further, an historicist approach to constitutional law would permit an end to
the pretense that the Court realistically could have invalidated racial
segregation at a time when the nation overwhelmingly sympathized with the
practice; protected the free expression rights of political radicals at a time
when they were widely deemed to pose a genuine threat to the nation’s well-
being; or mandated a strong separation of church and state at a time when the
country continued to operate under an informal Protestant establishment. To
approach constitutional theory ahistorically is to ensure that it be done badly;
we can do better.
D. THE DOCTRINAL LEGACY OF BROWN & NEUTRAL PRINCIPLES

The contested justifications for Brown v. Board of Education bear
implications for its doctrinal legacy as well, both for Equal Protection rules in
particular, and constitutional rights in general. As Professor Wechsler and
others observe in their criticisms of Brown, its school-focused holding “that in
the field of public education the doctrine of ‘separate but equal’ has no place”
provided only a first step toward future efforts at desegregation and broader
civil rights. The Supreme Court’s invocation in Bolling that “[s]egregation in

public education is not reasonably related to any proper governmental
objective” and “constitutes an arbitrary deprivation of [Black children’s] liberty
in violation of the Due Process Clause,” which followed a citation to an early
version of strict scrutiny in Korematsu v. United States (1944) (upholding the
exclusion of Japanese Americans), offered little additional guidance on the
application of the Fourteenth Amendment to racial discrimination. The
Supreme Court’s critical next steps in the desegregation of public facilities
offered little or nothing in terms of articulating a doctrine of racial equality.
Brown also left the scope of anti-discrimination principle undefined.
By Brown’s second decade, the Supreme Court under Chief Justice Earl
Warren had moved beyond the core equality concerns of the Fourteenth
Amendment to issues of individual liberty and personal privacy. Most notably,
in Griswold v. Connecticut (1965) the Court recognized an unenumerated right
of privacy derived from a principle that “specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees that
help give them life and substance.” In response, commentators such as
Professor Robert Bork challenged the lack of textual and historical support for
such constitutional rights. He was one of the first modern commentators to
articulate what would become known as originalism in constitutional
interpretation, and urged judicial restraint on questions to which the
Constitution did not clearly speak. For Professor Bork, the Fourteenth
Amendment stood for the Brown principle of racial equality enforceable by
courts, basic procedural due process, and little else.
At the same time, a series of cases began to reframe Brown beyond
desegregation. Affirmative action in government hiring, contracting, and
public education brought new claims on Brown’s legacy by white employees
and students who urged a colorblind reading of the Equal Protection Clause.
In University of California Regents v. Bakke (1978), a divided Supreme Court
held “[p]referring members of any one group for no reason other than race or
ethnic origin is discrimination for its own sake [that] the Constitution forbids,”
and, citing Brown, subjected public affirmative action programs to strict
scrutiny. Meanwhile a series of cases decided in the 1970s and 1980s
recognized Equal Protection claims for discrimination on the basis of gender
classifications and other traditionally subordinated groups. Pamela S. Karlan’s
extensive work on voting rights requires careful attention to Equal Protection
doctrine, which she brings to bear in What Can Brown® Do for You?
Robert H. Bork
NEUTRAL PRINCIPLES AND SOME FIRST AMENDMENT
PROBLEMS
47 Ind. L. J. 1–2, 7–15, 17 (1971)
A persistently disturbing aspect of constitutional law is its lack of theory, a
lack which is manifest not merely in the work of the courts but in the public,
professional and even scholarly discussion of the topic. The result, of course, is
that courts are without effective criteria and, therefore we have come to expect
that the nature of the Constitution will change, often quite dramatically, as
the personnel of the Supreme Court changes. In the present state of affairs
that expectation is inevitable, but it is nevertheless deplorable. ***
The subject of the lengthy and often acrimonious debate about the proper
role of the Supreme Court under the Constitution is one that pre-occupies
many people these days: when is authority legitimate? I find it convenient to
discuss that question in the context of the Warren Court and its works simply
because the Warren Court posed the issue in acute form. The issue did not
disappear along with the era of the Warren Court majorities, however. It arises
when any court either exercises or declines to exercise the power to invalidate
any act of another branch of government. The Supreme Court is a major power
center, and we must ask when its power should be used and when it should be
withheld.
Our starting place, inevitably, is Professor Herbert Wechsler's argument
that the Court must not be merely a "naked power organ," which means that
its decisions must be controlled by principle.' "A principled decision," according
to Wechsler, "is one that rests on reasons with respect to all the issues in a
case, reasons that in their generality and their neutrality transcend any
immediate result that is involved." Wechsler chose the term "neutral
principles" to capsulate his argument, though he recognizes that the legal
principle to be applied is itself never neutral because it embodies a choice of
one value rather than another. Wechsler asked for the neutral application of
principles, which is a requirement, as Professor Louis L. Jaffe puts it, that the
judge "sincerely believe in the principle upon which he purports to rest his
decision." "The judge," says 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." He must not, that is, decide
lawlessly. But is the demand for neutrality in judges merely another value
choice, one that is no more principled than any other? I think not, but to prove
it we must rehearse fundamentals. This is familiar terrain but important and
still debated. ***
It is easy enough to meet the requirement of neutral application by stating
a principle so narrowly that no embarrassment need arise in applying it to all
cases it subsumes, a tactic often urged by proponents of "judicial restraint."
But that solves very little. It certainly does not protect the judge from the
intrusion of his own values. The problem may be illustrated by Griswold v.
Connecticut, in many ways a typical decision of the Warren Court. Griswold
struck down Connecticut's statute making it a crime, even for married couples,
to use contraceptive devices. If we take the principle of the decision to be a
statement that government may not interfere with any acts done in private,
we need not even ask about the principle's dubious origin for we know at once
that the Court will not apply it neutrally. The Court, we may confidently
predict, is not going to throw constitutional protection around heroin use or
sexual acts with a consenting minor. We can gain the possibility of neutral
application by reframing the principle as a statement that government may
not prohibit the use of contraceptives by married couples, but that is not
enough. The question of neutral definition arises: Why does the principle
extend only to married couples? Why, out of all forms of sexual behavior, only
to the use of contraceptives? Why, out of all forms of behavior, only to sex? The
question of neutral derivation also arises: What justifies any limitation upon
legislatures in this area? What is the origin of any principle one may state?
To put the matter another way, if a neutral judge must demonstrate why
principle X applies to cases A and B but not to case C (which is, I believe, the
requirement laid down by Professors Wechsler and Jaffe), he must, by the same
token, also explain why the principle is defined as X rather than as X minus,
which would cover A but not cases B and C, or as X plus, which would cover all
cases, A, B and C. Similarly, he must explain why X is a proper principle of
limitation on majority power at all. Why should he not choose non-X? If he may
not choose lawlessly between cases in applying principle X, he may certainly
not choose lawlessly in defining X or in choosing X, for principles are after all
only organizations of cases into groups. To choose the principle and define it is
to decide the cases.
It follows that the choice of "fundamental values" by the Court cannot be
justified. 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. The case just mentioned illustrates
the point. The Griswold decision has been acclaimed by legal scholars as a
major advance in constitutional law, a salutary demonstration of the Court's
ability to protect fundamental human values. I regret to have to disagree, and
my regret is all the more sincere because I once took the same position and did
so in print. In extenuation I can only say that at the time I thought, quite
erroneously, that new basic rights could be derived logically by finding and
extrapolating a more general principle of individual autonomy underlying the
particular guarantees of the Bill of Rights. ***
The Griswold opinion fails every test of neutrality. The derivation of the
principle was utterly specious, and so was its definition. In fact, we are left
with no idea of what the principle really forbids. Derivation and definition are
interrelated here. Justice Douglas called the amendments and their
penumbras "zones of privacy," though of course they are not that at all. They
protect both private and public behavior and so would more properly be
labelled "zones of freedom." If we follow Justice Douglas in his next step, these
zones would then add up to an independent right of freedom, which is to say, a
general constitutional right to be free of legal coercion, a manifest impossibility
in any imaginable society.
Griswold, then, is an unprincipled decision, both in the way in which it
derives a new constitutional right and in the way it defines that right, or rather
fails to define it. We are left with no idea of the sweep of the right of privacy
and hence no notion of the "cases to which it may or may not be applied in the
future. The truth is that the Court could not reach its result in Griswold
through principle. The reason is obvious. Every clash between a minority
claiming freedom and a majority claiming power to regulate involves a choice
between the gratifications of the two groups. When the Constitution has not
spoken, the Court will be able to find no scale, other than its own value
preferences, upon which to weigh the respective claims to pleasure. Compare
the facts in Griswold with a hypothetical suit by an electric utility company
and one of its customers to void a smoke pollution ordinance as
unconstitutional. The cases are identical.
In Griswold a husband and wife assert that they wish to have sexual
relations without fear of unwanted children. The law impairs their sexual
gratifications. The State can assert, and at one stage in that litigation did
assert, that the majority finds the use of contraceptives immoral. Knowledge
that it takes place and that the State makes no effort to inhibit it causes the
majority anguish, impairs their gratifications.
The electrical company asserts that it wishes to produce electricity at low
cost in order to reach a wide market and make profits. Its customer asserts
that he wants a lower cost so that prices can be held low. The smoke pollution
regulation impairs his and the company's stockholders' economic
gratifications. The State can assert not only that the majority prefer clean air
to lower prices, but also that the absence of the regulation impairs the
majority's physical and aesthetic gratifications.
Neither case is covered specifically or by obvious implication in the
Constitution. Unless we can distinguish forms of gratification, the only course
for a principled Court is to let the majority have its way in both cases. It is
clear that the Court cannot make the necessary distinction. There is no
principled way to decide that one man's gratifications are more deserving of
respect than another's or that one form of gratification is more worthy than
another. Why is sexual gratification more worthy than moral gratification?
Why is sexual gratification nobler than economic gratification? There is no way
of deciding these matters other than by reference to some system of moral or
ethical values that has no objective or intrinsic validity of its own and about
which men can and do differ. Where the Constitution does not embody the
moral or ethical choice, the judge has no basis other than his own values upon
which to set aside the community judgment embodied in the statute. That, by
definition, is an inadequate basis for judicial supremacy. The issue of the
community's moral and ethical values, the issue of the degree of pain an
activity causes, are matters concluded by the passage and enforcement of the
laws in question. The judiciary has no role to play other than that of applying
the statutes in a fair and impartial manner.
One of my colleagues refers to this conclusion, not without sarcasm, as the
"Equal Gratification Clause." The phrase is apt, and I accept it, though not the
sarcasm. Equality of human gratifications, where the document does not
impose a hierarchy, is an essential part of constitutional doctrine because of
the necessity that judges be principled. To be perfectly clear on the subject, I
repeat that the principle is not applicable to legislatures. Legislation requires
value choice and cannot be principled in the sense under discussion. Courts
must accept any value choice the legislature makes unless it clearly runs
contrary to a choice made in the framing of the Constitution.
It follows, of course, that broad areas of constitutional law ought to be
reformulated. Most obviously, it follows that substantive due process, revived
by the Griswold case, is and always has been an improper doctrine.
Substantive due process requires the Court to say, without guidance from the
Constitution, which liberties or gratifications may be infringed by majorities
and which may not. This means that Griswold's antecedents were also wrongly
decided, e.g., Meyer v. Nebraska, which struck down a statute forbidding the
teaching of subjects in any language other than English; Pierce v. Society of
Sisters, which set aside a statute compelling all Oregon school children to
attend public schools; Adkins v. Children's Hospital, which invalidated a
statute of Congress authorizing a board to fix minimum wages for women and
children in the District of Columbia; and Lochner v. New York, which voided a
statute fixing maximum hours of work for bakers. With some of these cases I
am in political agreement, and perhaps Pierce's result could be reached on
acceptable grounds, but there is no justification for the Court's methods. In
Lochner, Justice Peckham, defending liberty from what he conceived as a mere
meddlesome interference, asked, "[A]re we all . . . at the mercy of legislative
majorities?" The correct answer, where the Constitution does not speak, must
be "yes."
The argument so far also indicates that most of substantive equal protection
is also improper. The modern Court, we need hardly be reminded, used the
equal protection clause the way the old Court used the due process clause. The
only change was in the values chosen for protection and the frequency with
which the Court struck down laws.
The equal protection clause has two legitimate meanings. It can require
formal procedural equality, and, because of its historical origins, it does require
that government not discriminate along racial lines. But much more than that
cannot properly be read into the clause. The bare concept of equality provides
no guide for courts. All law discriminates and thereby creates inequality. The
Supreme Court has no principled way of saying which non-racial inequalities
are impermissible. What it has done, therefore, is to appeal to simplistic
notions of "fairness" or to what it regards as "fundamental" interests in order
to demand equality in some cases but not in others, thus choosing values and
producing a line of cases as improper and as intellectually empty as Griswold
v. Connecticut. Any casebook lists them, and the differing results cannot be
explained on any ground other than the Court's preferences for particular
values: Skinner v. Oklahoma (a forbidden inequality exists when a state
undertakes to sterilize robbers but not embezzlers) ; Kotch v. Board of River
Port Pilot Commissioners (no right to equality is infringed when a state grants
pilots' licenses only to persons related by blood to existing pilots and denies
licenses to persons otherwise as well qualified); Goesaert v. Cleary (a state does
not deny equality when it refuses to license women as bartenders unless they
are the wives or daughters of male owners of licensed liquor establishments);
Railway Express Agency v. New York (a city may forbid truck owners to sell
advertising space on their trucks as a distracting hazard to traffic safety
though it permits owners to advertise their own business in that way); Shapiro
v. Thompson (a state denies equality if it pays welfare only to persons who have
resided in the state for one year) ; Levy v. Louisiana (a state may not limit
actions for a parent's wrongful death to legitimate children and deny it to
illegitimate children). The list could be extended, but the point is that the cases
cannot be reconciled on any basis other than the Justices' personal beliefs
about what interests or gratifications ought to be protected. *** There is no
principled way in which anyone can define the spheres in which liberty is
required and the spheres in which equality is required. These are matters of
morality, of judgment, of prudence. They belong, therefore, to the political
community. In the fullest sense, these are political questions.
We may now be in a position to discuss certain of the problems of legitimacy
raised by Professor Wechsler. Central to his worries was the Supreme Court's
decision in Brown v. Board of Education. Wechsler said he had great difficulty
framing a neutral principle to support the Brown decision, though he
thoroughly approved of its result on moral and political grounds. It has long
been obvious that the case does not rest upon the grounds advanced in Chief
Justice Warren's opinion, the specially harmful effects of enforced school
segregation upon black children. That much, as Wechsler and others point out,
is made plain by the per curiam decisions that followed outlawing segregated
public beaches, public golf courses and the like. The principle in operation may
be that government may not employ race as a classification. But the genesis of
the principle is unclear. ***
… Professor Wechsler … has framed the issue in insoluble terms by calling
it a "conflict between human claims of high dimension," which is to say that it
requires a judicial choice between rival gratifications in order to find a
fundamental human right. So viewed it is the same case as Griswold v.
Connecticut and not susceptible of principled resolution.
A resolution that seems to me more plausible is supported rather than
troubled by the need for neutrality. A court required to decide Brown would
perceive two crucial facts about the history of the fourteenth amendment.
First, the men who put the amendment in the Constitution intended that the
Supreme Court should secure against government action some large measure
of racial equality. That is certainly the core meaning of the amendment.
Second, those same men were not agreed about what the concept of racial
equality requires. Many or most of them had not even thought the matter
through. Almost certainly, even individuals among them held such views as
that blacks were entitled to purchase property from any willing seller but not
to attend integrated schools, or that they were entitled to serve on juries but
not to intermarry with whites, or that they were entitled to equal physical
facilities but that the facilities should be separate, and so on through the
endless anomalies and inconsistencies with which moral positions so
frequently abound. The Court cannot conceivably know how these long-dead
men would have resolved these issues had they considered, debated and voted
on each of them. Perhaps it was precisely because they could not resolve them
that they took refuge in the majestic and ambiguous formula: the equal
protection of the laws.
But one thing the Court does know: it was intended to enforce a core idea of
black equality against governmental discrimination. And the Court, because it
must be neutral, cannot pick and choose between competing gratifications and,
likewise, cannot write the detailed code the framers omitted, requiring equality
in this case but not in another. The Court must, for that reason, choose a
general principle of equality that applies to all cases. For the same reason, the
Court cannot decide that physical equality is important but psychological
equality is not. Thus, the no-state-enforced-discrimination rule of Brown must
overturn and replace the separate-but-equal doctrine of Plessy v. Ferguson. The
same result might be reached on an alternative ground. If the Court found that
it was incapable as an institution of policing the issue of the physical equality

of separate facilities, the variables being insufficiently comparable and the
cases too many, it might fashion a no-segregation rule as the only feasible
means of assuring even physical equality.
In either case, the value choice (or, perhaps more accurately, the value
impulse) of the fourteenth amendment is fleshed out and made into a legal
rule-not by moral precept, not by a determination that claims for association
prevail over claims for separation as a general matter, still less by
consideration of psychological test results, but on purely juridical grounds. ***
The argument thus far claims that, cases of race discrimination aside, it is
always a mistake for the Court to try to construct substantive individual rights
under the due process or the equal protection clause. Such rights cannot be
constructed without comparing the worth of individual gratifications, and that
comparison cannot be principled. Unfortunately, the rhetoric of constitutional
adjudication is increasingly a rhetoric about "fundamental" rights that inhere
in humans. That focus does more than lead the Court to construct new rights
without adequate guidance from constitutional materials. It also distorts the
scope and definition of rights that have claim to protection. ***
Pamela S. Karlan
WHAT CAN BROWN® DO FOR YOU? NEUTRAL PRINCIPLES AND

THE STRUGGLE OVER THE EQUAL PROTECTION CLAUSE
58 Duke L. J 1049–1063, 1066–1069 (2009)
This is a story about two of the most influential texts in American
constitutional law. The first, the Supreme Court’s decision in Brown v. Board
of Education1 striking down de jure segregation of public schools, has become
the most revered opinion in the Court’s history--the most “super-duper,” to use
Senator Arlen Specter’s phrase, of all the Court’s precedents. The second,
Professor Herbert Wechsler’s Harvard Law Review article, Toward Neutral
Principles of Constitutional Law, has become the second-most-cited law review
article in American history. The final pages of Neutral Principles are in fact
devoted to arguing that Brown cannot be squared with the demands of
principled adjudication.
Over time, the relationship between Brown and Neutral Principles has
changed dramatically. If Neutral Principles were remembered primarily as an
attack on Brown as an unprincipled decision, it would never have had such
staying power. Neutral Principles would then be so firmly on the wrong side of
history that citing it for the proposition that adjudication should rest on reason
and principle would be like citing Dred Scott v. Sandford for the proposition
that “when a plaintiff sues in a court of the United States, it is necessary that
he should show, in his pleading, that the suit he brings is within the
jurisdiction of the court.”
But that is not how Neutral Principles is remembered. It is remembered
instead for its title--it may have begun the practice of starting articles with the
word “toward” (which suggests in a falsely modest way that the author is not
quite getting all the way there)--and for its general statement of the features
that make judicial review legitimate in a democracy. Its analysis of the decision
in Brown has largely been forgotten. And precisely because the tension
between Neutral Principles the article and Brown the decision has been
forgotten, the Supreme Court treats Brown as the apotheosis of “neutral
principles,” in particular, of a principle of race neutrality or colorblindness as
the essence of the Fourteenth Amendment’s Equal Protection Clause. Neutral
principles the idea, if not Neutral Principles the article, seems to be winning
the struggle to claim Brown for itself.
Brown occupies a peculiar position within constitutional interpretation.
The Rehnquist and Roberts Courts have devoted pages upon pages of their
opinions to plumbing the meaning that constitutional provisions possessed at
the time of their framing and ratification. Although the contemporary fixation
on originalism arose from conservative resistance to decisions by the Warren
and Burger Courts, professed fidelity to some form of “original meaning” or
“original understanding” now seems firmly in the ascendancy…. But whatever
originalism means with respect to other constitutional issues, when it comes
to the Equal Protection Clause and its application to questions of race-
conscious government action, the Court seldom looks back beyond Brown. Put
simply, the Court has abandoned “Framers’ originalism” in favor of “Brown
originalism,” in which Justices claim fidelity, not to what the Equal Protection
Clause meant in 1868, but rather to what the Supreme Court meant in 1954.
***
I. Brown and Wechsler
Brown involved challenges by black public school students to official policies
mandating separate schools for black and white pupils. When the case first
was argued, in October Term 1952, the Court found itself deeply divided.
Aware that “a close vote would likely be a disaster for Court and country alike,”
the Court set the cases for reargument in the next Term, asking the parties to
address, among other things, [three questions about the original
understanding of the Fourteenth Amendment]. ***
At first blush, these questions might suggest that the Justices were
originalists of some stripe. But the two leading accounts of the Justices’
deliberations show that these questions were a “pretense” devised by Justice
Felix Frankfurter to avoid the appearance of stalling while the Justices tried
to reach consensus. And far from relying on the results of this originalist
inquiry, the Court’s opinion instead declared that … “we cannot turn the clock
back to 1868 when the Amendment was adopted [and] must consider public
education in the light of its full development and its present place in American
life throughout the Nation.”
To say that the Supreme Court in Brown sidestepped how the framers of
the Fourteenth Amendment acted or thought about school segregation,
however, is not to say that the Court ignored contemporaneous understanding
of the amendment altogether. To the contrary, Chief Justice Warren’s opinion
for the Court explicitly hearkened back to its earliest decisions concerning the
Reconstruction amendments, which had located their meaning in the
particular history of black slavery and emancipation. *** Put in contemporary
terms, the first opinions construing the Fourteenth Amendment had treated it
as a prohibition on racial subordination and had recognized its aspiration that

blacks become full members of civic society.
It was in light of that understanding that the Court turned to the
constitutionality of public school segregation. To separate black school children
“from others of similar age and qualifications solely because of their race,” the
Court declared, “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.” Precisely because “the policy of separating the races is usually
interpreted as denoting the inferiority of the negro group,” segregated
educational facilities “are inherently unequal” and violate the Equal Protection
Clause.
As I read Brown, the evil at which the decision was directed was not an
arbitrary or irrelevant use of race to separate similar children from one
another--as would have been the case had a school system assigned children to
different schools on the basis of astrological signs or blood type. Rather, the
problem was an invidious use of race: school segregation reinforced blacks’
subordinate status and perpetuated the exclusion from mainstream
institutions that dated back to the time of slavery.
So it is something of a puzzle to then read Professor Wechsler’s account of
Brown in Neutral Principles. Wechsler sought to enter two ongoing debates,
one over the legitimacy of judicial review and the nature of principled
adjudication and the other over the Supreme Court’s recent decisions,
particularly in the school segregation cases. Wechsler’s starting point, set out
near the beginning of his article, is that courts function solely as an
(illegitimate) “naked power organ” when they decide cases based on the
identity of the parties before them. Thus, Wechsler condemns the person who
“disapproves of a [judicial] decision when all he knows is that it has sustained
a claim put forward by a labor union or a taxpayer, a Negro or a segregationist,
a corporation or a Communist.” To be sure, Wechsler is making an important
point: in a wide variety of cases, the identity of the litigant should not matter.
It is hard to imagine a justification, for example, for denying compensatory
damages to plaintiffs in medical malpractice cases because they are
segregationists or Communists. But there is also a wide array of cases in which
the identity of a litigant or injured party does matter. The Federal Sentencing
Guidelines, for example, recommend that judges take into account whether a
victim is vulnerable or was selected because of the victim’s race, religion,
ethnicity, gender, disability, or sexual orientation, and sentencing courts often
take into account a defendant’s age when deciding an appropriate sentence.
Sometimes, the litigant’s identity is the hinge on which the entire case turns.
For example, statutes such as Title VII, the Age Discrimination in
Employment Act, and the Civil Service Reform Act reject the doctrine of at-will
employment entirely on the basis of an employee’s status. They treat decisions
to hire, fire, or promote employees on the basis of their race, sex, political
beliefs, or age differently from decisions to take personnel actions on the basis
of employees’ performances or even such irrelevant factors as their choice of
college football team to support.
Wechsler treats the Supreme Court’s decision in Brown as one preferring
the claims of blacks over the claims of segregationists because of the identity
of the litigants. He rejects the idea that “racial segregation” can be, “in
principle, a denial of equality to the minority against whom it is directed[,] that
is, the group that is not dominant politically and, therefore, does not make the
choice involved,” because he forgets that that is the principle embodied in the
Equal Protection Clause. Because of his insistence on a kind of formal
symmetry, Wechsler denies that racial nonsubordination can be a principle.
How, he asks, can racial nonsubordination be a neutral value?
In one sense, I do not understand Wechsler’s problem. As Professor John
Hart Ely later remarked, “there are neutral principles of every hue. (How about
‘No racial segregation, ever?’).” But one need not even go that far. To be sure,
saying that the Constitution forbids creating racial out-groups is not neutral
with respect to race: it treats differentiation among individuals on the basis of
race differently from differentiation based on other factors, such as talent or
ability to pay…. But that nonneutrality is a product of constitutional choices--
most explicitly in the Fifteenth Amendment, but implicitly in the Fourteenth
as well--rather than judicial willfulness or will. The Reconstruction
amendments were “fashioned to one major end,” namely, “the full
emancipation” of black Americans. Still, within the category of racial groups,
a nonsubordination principle can be neutral, even in Wechsler’s terms: the
government can be prohibited from treating any racially defined group as
subordinate or inferior. As a matter of American history, blacks have been the
primary beneficiaries of the nonsubordination principle, but that position is
entirely contingent: the Equal Protection Clause also protects Hispanics, Asian
Americans, and Native Americans against discrimination on the basis of race
or ancestry.
Because Wechsler thought nonsubordination could not serve as a neutral
principle, he found himself casting around for some other principle that could
apply to the injury suffered by black persons subjected to Jim Crow, and he
latched onto the idea that the problem with segregation was not that it
discriminates against black people but that it denies all people the right to
associate across racial lines. ***
Only because Wechsler identified the relevant constitutional principle as a
right of association was he confronted with the problem he found himself
unable to solve: finding a principled way for courts to choose between those
who wished to associate (that is, black schoolchildren seeking to attend white
schools) and those who wished not to associate (namely, whites who found
integration “unpleasant or repugnant.”) If instead he had treated the central
issue as one of equal civic status, rather than equal government
accommodation of individual preference, Wechsler would have had no real
difficulty in deciding that whites’ desire to subordinate blacks and blacks’
desires for equality were constitutionally different from one another.
But whether or not Brown was principled in the sense that Wechsler used
that term in Neutral Principles, the decision marks the Supreme Court’s
greatest triumph. It transformed equal protection from what Justice Oliver
Wendell Holmes derisively once called the “usual last resort of constitutional
arguments” into a bedrock principle of constitutional law. Not for nothing did
the Court later choose the Equal Protection Clause as its vehicle for remaking
the American political system in the reapportionment cases or as the
justification for resolving the presidential election of 2000. Precisely because

Brown has become the crown jewel of the United States Reports, every
constitutional theory must claim Brown for itself. A constitutional theory that
cannot produce the result reached in Brown--the condemnation of de jure Jim
Crow--is a constitutional theory without traction. Even Robert Bork, whose
judicial nomination foundered in no small part because of his article Neutral
Principles and Some First Amendment Problems--an homage in important
ways to Wechsler’s argument--has noted that any constitutional “theory that
seeks acceptance must, as a matter of psychological fact, if not of logical
necessity, account for the result in Brown.”
II. Shades of Brown: The Roberts Court and Parents Involved
The imperative of keeping faith with Brown is all the more pressing when
it comes to cases involving school desegregation. So one of the most striking
aspects of the Supreme Court’s 2007 decision in Parents Involved in
Community Schools v. Seattle School District No. 1 was the struggle among the
Justices over what Brown meant. The policies at issue in Parents Involved
were promulgated by elected local school boards in Seattle, Washington, and
Louisville, Kentucky. To produce racially integrated schools in the face of
continued residential segregation, each school board took race into account in
some pupil assignments. The Supreme Court, by a 5-4 vote, held that both
policies were unconstitutional.
Before Parents Involved, the Court had not given plenary consideration to
the question of public school desegregation in a dozen years. That hiatus was
significant because, in the interim, the Court had taken a fairly decisive stance
on an interpretive issue posed, but not resolved, by the opinion in Brown: what
is the central meaning of the Equal Protection Clause. In his foundational
article, Groups and the Equal Protection Clause, Professor Owen Fiss
identified two principles that might drive interpretations of the clause: the
“antidiscrimination principle” and the “group-disadvantaging principle.” The
former principle, often referred to as an “anticlassification” principle, sees the
evil to which the clause is addressed as the government’s classification and
subsequent differential treatment of individuals along racial lines. It is
embodied in the view that “[a]t the heart of the Constitution’s guarantee of
equal protection lies the simple command that the Government must treat
citizens as individuals, not as simply components of a racial, religious, sexual
or national class.” This principle calls for symmetry in the treatment of
individuals. Although Wechsler might have some quibbles with its status as a
neutral principle, it avoids, at the very least, Wechsler’s criticism of decisions
that turn on the characteristics of the litigants. Under the
antidiscrimination/anticlassification principle, all individuals enjoy identical
protection against adverse treatment.
By contrast, the group-disadvantaging principle, often referred to as an
“anticaste” or “antisubordination” principle, sees the Equal Protection Clause
as directed toward laws that perpetuate the historical exclusion of racial
groups from full civic participation. It sees a “constitutional asymmetry”
between government action that “seeks to exclude and that which seeks to
include members of minority races.”
At the time of Brown, the Court did not need to pick between the two
principles because both demanded the same result. Moreover, the doctrinal
framework of equal protection analysis was then far less structured. Although
Korematsu v. United States had held that government action resting on race-
based distinctions faced “the most rigid scrutiny,” strict scrutiny as a doctrinal
category did not emerge until the mid-1960s. And it was not until its decisions
in City of Richmond v. J. A. Croson Co. [(1989)] and Adarand Constructors,
Inc. v. Pena [(1995)]--both cases involving the distinctive practice of
competitive bidding for government contracts--that the Court embraced the
rule that all governmental uses of race were subject to strict scrutiny. So
Parents Involved marked the first time that the Court returned to the issue in
Brown--the assignment of children to public schools--in the context of
contemporary colorblind constitutionalism. ***
Like the ghost of Hamlet’s father, Brown the opinion makes only a very few,
albeit critical, appearances in the Court’s opinion. Although Brown--and what
the promise of Brown was--looms over the entire case, it is not until the
antepenultimate page of the slip opinion announcing the judgment that the
Chief Justice actually cites the Supreme Court’s initial 1954 decision in Brown.
And then, in the course of explaining why Brown supports an anticlassification
approach, he quotes only a fragment of a single sentence from the opinion.
Referring to segregation, the Chief Justice writes that “[t]he impact is greater
when it has the sanction of the law.” The Chief Justice quotes that fragment,
which actually involves a quotation of the district court’s opinion, to support
his claim that “[i]t was not the inequality of the facilities but the fact of legally
separating children on the basis of race on which the Court relied to find a
constitutional violation in 1954.” But re-placed in its context, the quotation
from Brown shows how the Parents Involved Court posed a false choice. The
sentence immediately preceding the quoted fragment reads, “Segregation of
white and colored children in public schools has a detrimental effect upon the
colored children.” And the remainder of the quoted sentence itself drives this
point home: “The impact is greater when it has the sanction of the law; for the
policy of separating the races is usually interpreted as denoting the inferiority
of the negro group.” The vice to which the Brown Court was pointing was
neither the provision of inferior tangible facilities nor the simple separation of
groups. It was subordination. The reduction of a direct quotation from Brown
to a single misleading sentence fragment illustrates the problem the Parents
Involved Court faced in trying to enlist Brown in the ranks of anticlassification
decisions: all of the ringing language in the Court’s initial opinion sounded in
antisubordination. ***
The message of Brown for the Chief Justice and his three conservative
colleagues is a symmetrical one: “Before Brown,” the Court explained,
“schoolchildren were told where they could and could not go to school based on
the color of their skin.” As Justice Stevens noted in dissent, there is a troubling
deracination to that account, which bears a startling resemblance to
Wechsler’s account of his lunch with Charles Hamilton Houston: … “The Chief
Justice fails to note that it was only black schoolchildren who were so ordered;
indeed, the history books do not tell stories of white children struggling to
attend black schools.”
Although Justice Breyer’s dissent, like the Chief Justice’s opinion, ends
with a discussion of “the hope and promise of Brown,” Justice Breyer, unlike
the Chief, anchored his opinion in the original animating concern of the
Fourteenth Amendment…. By looking back before Brown, Justice Breyer was
able to see that Brown was directed at policies that did far more than simply
classify children on the basis of skin color; “they perpetuated a caste system
rooted in the institutions of slavery and 80 years of legalized subordination.”
*** In Parents Involved, the majority claimed Brown for a tamed and minimal
view of the Fourteenth Amendment as simply a bar on race-based
classifications and not a promise of full civic inclusion.
***
In the dark comedy, The Merchant of Venice, Antonio warns “Mark you this,
Bassanio--/ The devil can cite Scripture for his purpose.” Brown is, in an
important sense, our national scripture. But in Parents Involved, the Court
wrenched Brown free of its original context. It adopted a reading of Brown that
would have been unrecognizable to the participants whose words it invoked,
and in service of a vision of deracinated neutrality that Brown’s critics, and not
its champions, had advanced. Responding to the Chief Justice’s invocation of
Brown to support his claim that “history will be heard,” Justice Stevens
trenchantly quoted back to the Chief his dissenting statement earlier in the
Term that “[i]t is a familiar adage that history is written by the victors.” If
Americans are going to live in a world of Brown originalism, then it is at least
worth remembering that Brown rested, not on the forms of neutrality that
Herbert Wechsler and the Parents Involved majority embraced, but on a far
richer vision of an integrated society.
QUESTION
Brown v. Board of Education still exerts a powerful rhetorical influence in
judicial decisions, even as its holding and remedy has been overtaken by a new
history of civil rights. A contemporary opinion’s citation to Brown sends a
message that trades on its rare canonical status, even if its meaning remains
contested today. Why would a court cite Brown? Consider how a court might
have chosen Brown to legitimate its own reasoning.
E. CRITICAL APPROACHES: BEYOND NEUTRAL PRINCIPLES

Where the previous selections largely debated on Professor Wechsler’s
terms over the correct “neutral principles” that justify Brown v. Board of
Education and its legacy, Critical Legal Studies (CLS) questions neutrality
itself. With influences in Marxism and later continental philosophy mixed with
American Legal Realism, the CLS movement emerged as some of the social
activists of the 1960s became legal scholars in the 1970s. The movement is
ideologically and methodologically diverse, and its core “critique” is that the
legal liberalism of American law (including American constitutional law) is not
neutral. Instead, according to scholarship in CLS and associated fields like
feminist legal theory and critical race theory, the law serves to structure power
relationships in systems of social control that reinforce and perpetuate
hierarchies. We will consider Critical Legal Studies more later, but its central
themes are sufficiently distinct to merit an introduction. CLS scholarship is
diverse and sometimes self-contradictory, but in general it emphasizes an
underdeterminacy or indeterminacy in law, which enables the more powerful
to maintain social structures of advantage over the less powerful, while
legitimating or even mystifying those structures in the name of “law.” Unlike
the legal commentators earlier in this chapter, who make claims about the
meaning of law within the legal system, this critique assumes a perspective
external to the legal system. This position outside the system enables insights
about the behavior of actors inside the system but also can complicate efforts
to operationalize its insights through the law itself.
Professors Bell and Harris each engage the legacy of Brown v. Board of
Education. While Professor Bell agrees that racial equality underlies Brown as
a legal principle, he recognizes this principle masks and is constrained by a
non-legal principle of interest convergence, which in turn limits Brown’s
remedial effect. Note how Professor Bell turns from an internal perspective
(assessing the debate between Wechsler and Black in doctrinal terms) to an
external perspective (critiquing Brown and its implementation in interest-
convergence terms).
Professor Harris demonstrates two additional methods of critical legal
studies. First she offers a personal narrative to recenter the analysis on the
lived experience of an outsider to illustrate underappreciated social and
dignitary harms imposed by the legal system upon persons at its margins.
Second, Professor Harris deconstructs formal legal categories like property and
equal protection, thereby transforming what is apparently an issue of public
law (the constitutionality of affirmative action) into an issue of private law (the
status of whiteness as property).
THOUGHT QUESTIONS:
(1) How would a lawyer who agrees with this external critique return to
the internal discourse of Brown’s legal meaning and the remedies it
requires?
(2) Does Professor Bell’s critique serve to reorient lawyers toward an
extra-legal (social?) project of restructuring power relationships to
create space for more effective remedies, or to reorient lawyers toward
a legal project of advocating for different remedies better suited to the
existing interest-convergence, or both? In other words, if this critique
provides leverage toward reform through awareness, how is such
leverage applied, and where? (Or does the awareness generated by
critique have a different purpose?)
(3) How does Professor Harris’s grandmother’s narrative, in addition to
the additional contextualization of Homer Plessy’s and the Mashpee
Tribe’s stories, advance her argument in ways a conventional historical
account of the cases would not?
(4) What if anything turns on Professor Harris’s reification of “whiteness
as property” (a legal conception made real) as opposed to a use of it as
an analogy to state a claim about white privilege?
(5) Note at the end of her critique Professor Harris turns back toward an
internal perspective in her conclusion that the implementation of
affirmative action policies could de-legitimate whiteness as property.
How and where does affirmative action work within that same legal
system to dismantle whiteness as property after it has been entrenched
by centuries of oppression by law?
(6) After deconstructing the legal system to reveal the underlying power
dynamics that ultimately constitute the law itself, what remains to do
the work of justice?
Derrick A. Bell, Jr.

BROWN V. BOARD OF EDUCATION
AND THE INTEREST-CONVERGENCE DILEMMA
93 Harv. L. Rev. 518 (1980)
IN 1954, the Supreme Court handed down the landmark decision Brown v.
Board of Education, in which the Court ordered the end of state-mandated
racial segregation of public schools. Now, more than twenty-five years after
that dramatic decision, it is clear that Brown will not be forgotten. It has
triggered a revolution in civil rights law and in the political leverage available
to blacks in and out of court. As Judge Robert L. Carter put it, Brown
transformed blacks from beggars pleading for decent treatment to citizens
demanding equal treatment under the law as their constitutionally recognized
right.
Yet today, most black children attend public schools that are both racially
isolated and inferior. Demographic patterns, white flight, and the inability of
the courts to effect the necessary degree of social reform render further
progress in implementing Brown almost impossible. The late Professor
Alexander Bickel warned that Brown would not be overturned but, for a whole
array of reasons, “may be headed for — dread word — irrelevance.” Bickel’s
prediction is premature in law where the Brown decision remains viable, but
it may be an accurate assessment of its current practical value to millions of
black children who have not experienced the decision’s promise of equal
educational opportunity.
Shortly after Brown, Professor Herbert Wechsler rendered a sharp and
nagging criticism of the decision. Though he welcomed its result, he criticized
its lack of a principled basis. Professor Wechsler’s views have since been
persuasively refuted, yet within them lie ideas which may help to explain the
disappointment of Brown and what can be done to renew its promise.
In this Comment, I plan to take a new look at Wechsler within the context
of the subsequent desegregation campaign. By doing so, I hope to offer an
explanation of why school desegregation has in large part failed and what can
be done to bring about change.
I. PROFESSOR WECHSLER’S SEARCH FOR NEUTRAL PRINCIPLES
IN BROWN
The year was 1959, five years after the Supreme Court’s decision in Brown.
If there was anything the hard-pressed partisans of the case did not need, it
was more criticism of a decision ignored by the President, condemned by much
of Congress, and resisted wherever it was sought to be enforced. Certainly, civil
rights adherents did not welcome adding to the growing list of critics the name
of Professor Herbert Wechsler, an outstanding lawyer, a frequent advocate for
civil rights causes, and a scholar of prestige and influence. Nevertheless,
Professor Wechsler chose that time and an invitation to deliver Harvard Law
School’s Oliver Wendell Holmes Lecture as the occasion to raise new questions
about the legal appropriateness and principled shortcomings of Brown and
several other major civil rights decisions.
Here was an attack that could not be dismissed as after-the-fact
faultfinding by a conservative academician using his intellect to further a
preference for keeping blacks in their “separate-but-equal” place. Professor
Wechsler began by saying that he had welcomed the result in Brown; he noted
that he had joined with the NAACP’s Charles Houston in litigating civil rights
cases in the Supreme Court. He added that he was not offended because the
Court failed to uphold earlier decisions approving segregated schools. Nor was
he persuaded by the argument that the issue should have been left to Congress
because the Court’s judgment might not be honored.
Wechsler did not align himself with the “realists,” who “perceive in law only
the element of fiat, in whose conception of the legal cosmos reason has no
meaning or no place,” nor with the “formalists,” who “frankly or covertly make
the test of virtue in interpretation whether its result in the immediate decision
seems to hinder or advance the interests or the values they support.” Wechsler
instead saw the need for criteria of decision that could be framed and tested as
an exercise of reason and not merely adopted as an act of willfulness or will.
He believed, in short, that courts could engage in a “principled appraisal” of
legislative actions that exceeded a fixed “historical meaning” of constitutional
provisions without, as Judge Learned Hand feared, becoming “a third
legislative chamber.” Courts, Wechsler argued, “must be genuinely principled,
resting with respect to every step that is involved in reaching judgment on
analysis and reasons quite transcending the immediate result that is
achieved.” Applying these standards, which included constitutional and
statutory interpretation, the subtle guidance provided by history, and
appropriate but not slavish fidelity to precedent, Wechsler found difficulty with
Supreme Court decisions where principled reasoning was in his view either
deficient or, in some instances, nonexistent. He included the Brown opinion in
the latter category. ***
II. THE SEARCH FOR A NEUTRAL PRINCIPLE: RACIAL EQUALITY
AND INTEREST CONVERGENCE
Scholars who accepted Professor Wechsler’s challenge had little difficulty
finding a neutral principle on which the Brown decision could be based. Indeed,
from the hindsight of a quarter century of the greatest racial consciousness-
raising the country has ever known, much of Professor Wechsler’s concern
seems hard to imagine. To doubt that racial segregation is harmful to blacks,
and to suggest that what blacks really sought was the right to associate with
whites, is to believe in a world that does not exist now and could not possibly
have existed then. Professor Charles Black, therefore, correctly viewed racial
equality as the neutral principle which underlay the Brown opinion. In Black’s
view, Wechsler’s question “is awkwardly simple,” and he states his response in
the form of a syllogism. Black’s major premise is that “the equal protection
clause of the fourteenth amendment should be read as saving that the Negro
race, as such, is not to be significantly disadvantaged by the laws of the states.”
His minor premise is that “segregation is a massive intentional disadvantaging
of the Negro race, as such, by state law.” The conclusion, then, is that the equal
protection clause clearly bars racial segregation because segregation harms
blacks and benefits whites in ways too numerous and obvious to require
citation.
Logically, the argument is persuasive, and Black has no trouble urging that
“[w]hen the directive of equality cannot be followed without displeasing the
white[s], then something that can be called a ‘freedom’ of the white[s] must be
impaired.” It is precisely here, though, that many whites part company with
Professor Black. Whites may agree in the abstract that blacks are citizens and
are entitled to constitutional protection against racial discrimination, but few
are willing to recognize that racial segregation is much more than a series of
quaint customs that can be remedied effectively without altering the status of
whites. The extent of this unwillingness is illustrated by the controversy over
affirmative action programs, particularly those where identifiable whites must
step aside for blacks they deem less qualified or less deserving. Whites simply
cannot envision the personal responsibility and the potential sacrifice inherent
in Professor Black’s conclusion that true equality for blacks will require the
surrender of racism-granted privileges for whites.
This sober assessment of reality raises concern about the ultimate import
of Black’s theory. On a normative level, as a description of how the world ought
to be, the notion of racial equality appears to be the proper basis on which
Brown rests, and Wechsler’s framing of the problem in terms of associational
rights thus seems misplaced. Yet, on a positivistic level — how the world is —
it is clear that racial equality is not deemed legitimate by large segments of
the American people, at least to the extent it threatens to impair the societal
status of whites. Hence, Wechsler’s search for a guiding principle in the context
of associational rights retains merit in the positivistic sphere, because it
suggests a deeper truth about the subordination of law to interest-group
politics with a racial configuration.
Although no such subordination is apparent in Brown, it is possible to
discern in more recent school decisions the outline of a principle, applied
without direct acknowledgment, that could serve as the positivistic expression
of the neutral statement of general applicability sought by Professor Wechsler.
Its elements rely as much on political history as legal precedent and emphasize
the world as it is rather than how we might want it to be. Translated from
judicial activity in racial cases both before and after Brown, this principle of
“interest convergence” provides: The interest of blacks in achieving racial
equality will be accommodated only when it converges with the interests of
whites. However, the fourteenth amendment, standing alone, will not
authorize a judicial remedy providing effective racial equality for blacks where
the remedy sought threatens the superior societal status of middle and upper
class whites.
It follows that the availability of fourteenth amendment protection in racial
cases may not actually be determined by the character of harm suffered by
blacks or the quantum of liability proved against whites. Racial remedies may
instead be the outward manifestations of unspoken and perhaps subconscious
judicial conclusions that the remedies, if granted, will secure, advance, or at
least not harm societal interests deemed important by middle and upper class
whites. Racial justice — or its appearance — may, from time to time, be
counted among the interests deemed important by the courts and by society’s
policymakers.
In assessing how this principle can accommodate both the Brown decision
and the subsequent development of school desegregation law, it is necessary to
remember that the issue of school segregation and the harm it inflicted on
black children did not first come to the Court’s attention in the Brown
litigation: blacks had been attacking the validity of these policies for 100 years.
Yet, prior to Brown, black claims that segregated public schools were inferior
had been met by orders requiring merely that facilities be made equal. What
accounted, then, for the sudden shift in 1954 away from the separate but equal
doctrine and towards a commitment to desegregation?
I contend that the decision in Brown to break with the Court’s long-held
position on these issues cannot be understood without some consideration of
the decision’s value to whites, not simply those concerned about the immorality
of racial inequality, but also those whites in policymaking positions able to see
the economic and political advances at home and abroad that would follow
abandonment of segregation. First, the decision helped to provide immediate
credibility to America’s struggle with Communist countries to win the hearts
and minds of emerging third world peoples. At least this argument was
advanced by lawyers for both the NAACP and the federal government. And the
point was not lost on the news media. Time magazine, for example, predicted
that the international impact of Brown would be scarcely less important than
its effect on the education of black children: “In many countries, where U.S.
prestige and leadership have been damaged by the fact of U.S. segregation, it
will come as a timely reassertion of the basic American principle that ‘all men
are created equal.”’
Second, Brown offered much needed reassurance to American blacks that
the precepts of equality and freedom so heralded during World War II might
yet be given meaning at home. Returning black veterans faced not only
continuing discrimination, but also violent attacks in the South which rivalled
those that took place at the conclusion of World War I. Their disillusionment
and anger were poignantly expressed by the black actor, Paul Robeson, who in
1949 declared: “It is unthinkable … that American Negroes would go to war on
behalf of those who have oppressed us for generations … against a country the
Soviet Union which in one generation has raised our people to the full human
dignity of mankind.” It is not impossible to imagine that fear of the spread of
such sentiment influenced subsequent racial decisions made by the courts.
Finally, there were whites who realized that the South could make the
transition from a rural, plantation society to the sunbelt with all its potential
and profit only when it ended its struggle to remain divided by state-sponsored
segregation. Thus, segregation was viewed as a barrier to further

industrialization in the South.
These points may seem insufficient proof of self-interest leverage to produce
a decision as important as Brown. They are cited, however, to help assess and
not to diminish the Supreme Court’s most important statement on the
principle of racial equality. Here, as in the abolition of slavery, there were
whites for whom recognition of the racial equality principle was sufficient
motivation. But, as with abolition, the number who would act on morality alone
was insufficient to bring about the desired racial reform.
Thus, for those whites who sought an end to desegregation on moral
grounds or for the pragmatic reasons outlined above, Brown appeared to be a
welcome break with the past. When segregation was finally condemned by the
Supreme Court, however, the outcry was nevertheless great, especially among
poorer whites who feared loss of control over their public schools and other
facilities. Their fear of loss was intensified by the sense that they had been
betrayed. They relied, as had generations before them, on the expectation that
white elites would maintain lower class whites in a societal status superior to
that designated for blacks. In fact, there is evidence that segregated schools
and facilities were initially established by legislatures at the insistence of the
white working class. Today, little has changed. Many poorer whites oppose
social reform as “welfare programs for blacks” although, ironically, they have
employment, education, and social service needs that differ from those of poor
blacks by a margin that, without a racial scorecard, is difficult to measure.
Unfortunately, poorer whites are now not alone in their opposition to school
desegregation and to other attempts to improve the societal status of blacks:
recent decisions, most notably by the Supreme Court, indicate that the
convergence of black and white interests that led to Brown in 1954 and
influenced the character of its enforcement has begun to fade. In Swann v.
Charlotte-Mecklenburg Board of Education [(1971)], Chief Justice Burger
spoke of the “reconciliation of competing values” in desegregation cases. If
there was any doubt that “competing values” referred to the conflicting
interests of blacks seeking desegregation and whites who prefer to retain
existing school policies, then the uncertainty was dispelled by Milliken v.
Bradley [(1974)], and by Dayton Board of Education v. Brinkman (Dayton I)
[(1977)]. In both cases, the Court elevated the concept of “local autonomy” to a
“vital national tradition”: “No single tradition in public education is more
deeply rooted than local control over the operation of schools; local autonomy
has long been thought essential both to the maintenance of community concern
and support for public schools and to quality of the educational process.” Local
control, however, may result in the maintenance of a status quo that will
preserve superior educational opportunities and facilities for whites at the
expense of blacks. As one commentator has suggested, “It is implausible to
assume that school boards guilty of substantial violations in the past will take
the interests of black school children to heart.”
As a result of its change in attitudes, the Court has increasingly erected
barriers to achieving the forms of racial balance relief it earlier had approved.
Plaintiffs must now prove that the complained-of segregation was the result of
discriminatory actions intentionally and invidiously conducted or authorized
by school officials. It is not enough that segregation was the “natural and
foreseeable” consequence of their policies. And even when this difficult
standard of proof is met, courts must carefully limit the relief granted to the
harm actually proved. Judicial second thoughts about racial balance plans with
broad-range busing components, the very plans which civil rights lawyers have
come to rely on, is clearly evident in these new proof standards. ***
At the very least, these decisions reflect a substantial and growing
divergence in the interests of whites and blacks. The result could prove to be
the realization of Professor Wechsler’s legitimate fear that, if there is not a
change of course, the purported entitlement of whites not to associate with
blacks in public schools may yet eclipse the hope and the promise of Brown.
III. INTEREST-CONVERGENCE REMEDIES UNDER BROWN
Further progress to fulfill the mandate of Brown is possible to the extent
that the divergence of racial interests can be avoided or minimized. Whites in
policymaking positions, including those who sit on federal courts, can take no
comfort in the conditions of dozens of inner-city school systems where the great
majority of nonwhite children attend classes as segregated and ineffective as
those so roundly condemned by Chief Justice Warren in the Brown opinion.
Nor do poorer whites gain from their opposition to the improvement of
educational opportunities for blacks: as noted earlier, the needs of the two
groups differ little. Hence, over time, all will reap the benefits from a concerted
effort towards achieving racial equality.
The question still remains as to the surest way to reach the goal of
educational effectiveness for both blacks and whites. I believe that the most
widely used programs mandated by the courts — “antidefiance, racial balance”
plans — may in some cases be inferior to plans focusing on “educational
components,” including the creation and development of “model” all-black
schools. A short history of the use of the antidefiance strategy would be helpful
at this point.
By the end of the 1950’s, it was apparent that compliance with the Brown
mandate to desegregate the public schools would not come easily or soon. In
the seventeen border states and the District of Columbia, fewer than 200
thousand blacks were actually attending classes with white children. The
states in the deep South had not begun even token desegregation, and it would
take Supreme Court action to reverse the years-long effort of the Prince
Edward County School Board in Virginia to abolish rather than desegregate
its public schools. Supreme Court orders and presidential action had already
been required to enable a handful of black students to attend Central High
School in Little Rock, Arkansas. Opposition to Brown was clearly increasing.
Its supporters were clearly on the defensive, as was the Supreme Court itself.
For blacks, the goal in school desegregation suits remained the effective use
of the Brown mandate to eliminate state-sanctioned segregation. These efforts
received unexpected help from the excesses of the massive resistance
movement that led courts to justify relief under Brown as a reaffirmance of the
supremacy of the judiciary on issues of constitutional interpretation. Brown,
in the view of many, might not have been a wise or proper decision, but violent
and prolonged opposition to its implementation posed an even greater danger

to the federal system.
The Supreme Court quickly recognized this additional basis on which to
ground school desegregation orders. “As this case reaches us,” the Court began
its dramatic opinion in Cooper v. Aaron [(1958)], “it raises questions of the
highest importance to the maintenance of our federal system of government.”
Reaching back to Marbury v. Madison, the Court reaffirmed Chief Justice
Marshall’s statement that “it is emphatically the province and duty of the
judicial department to say what the law is.” There were few opponents to this
stand, and Professor Wechsler was emphatically not one of them. His criticism
of Brown concluded with a denial that he intended to offer “comfort to anyone
who claims legitimacy in defiance of the courts.” Those who accept the benefits
of our constitutional system, Wechsler felt, cannot deny its allegiance when a
special burden is imposed. Defiance of court orders, he asserted, constituted
the “ultimate negation of all neutral principles.”
For some time, then, the danger to federalism posed by the secessionist-
oriented resistance of Southern state and local officials provided courts with
an independent basis for supporting school desegregation efforts. In the lower
federal courts, the perceived threat to judicial status was often quite personal.
Surely, I was not the only civil rights attorney who received a favorable
decision in a school desegregation case less by legal precedent than because a
federal judge, initially hostile to those precedents, my clients and their lawyer,
became incensed with school board litigation tactics that exhibited as little
respect for the court as they did for the constitutional rights of black children.
There was a problem with school desegregation decisions framed in this
antidefiance form that was less discernible then than now. While a
prerequisite to the provision of equal educational opportunity, condemnation
of school board evasion was far from synonymous with that long-promised goal.
Certainly, it was cause for celebration when the Court recognized that some
pupil assignment schemes, “freedom-of-choice” plans, and similar
“desegregation plans,” were in fact designed to retain constitutionally
condemned dual school systems. And, when the Court, in obvious frustration
with the slow pace of school desegregation, announced in 1968 what Justice
Powell later termed “the Green/Swann doctrine of ‘affirmative duty,”’ which
placed on school boards the duty to disestablish their dual school systems, the
decisions were welcomed as substantial victories by civil rights lawyers. Yet,
the remedies set forth in the major school cases following Brown — balancing
the student and teacher populations by race in each school, eliminating one-
race schools, redrawing school attendance lines, and transporting students to
achieve racial balance— have not in themselves guaranteed black children
better schooling than they received in the pre-Brown era. Such racial balance
measures have often altered the racial appearance of dual school systems
without eliminating racial discrimination. Plans relying on racial balance to
foreclose evasion have not eliminated the need for further orders protecting
black children against discriminatory policies, including resegregation within
desegregated schools, the loss of black faculty and administrators, suspensions
and expulsions at much higher rates than white students, and varying forms
of racial harassment ranging from exclusion from extracurricular activities to
physical violence. Antidefiance remedies, then, while effective in forcing
alterations in school system structure, often encourage and seldom shield black
children from discriminatory retaliation.
The educational benefits that have resulted from the mandatory
assignment of black and white children to the same schools are also debatable.
If benefits did exist, they have begun to dissipate as whites flee in alarming
numbers from school districts ordered to implement mandatory reassignment
plans. In response, civil rights lawyers sought to include entire metropolitan
areas within mandatory reassignment plans in order to encompass mainly
white suburban school districts where so many white parents sought sanctuary
for their children.
Thus, the antidefiance strategy was brought full circle from a mechanism
for preventing evasion by school officials of Brown’s antisegregation mandate
to one aimed at creating a discrimination-free environment. This approach to
the implementation of Brown, however, has become increasingly ineffective;
indeed, it has in some cases been educationally destructive. A preferable
method is to focus on obtaining real educational effectiveness which may entail
the improvement of presently desegregated schools as well as the creation or
preservation of model black schools.
Civil rights lawyers do not oppose such relief, but they clearly consider it
secondary to the racial balance remedies authorized in the Swann and Keyes
cases. Those who espouse alternative remedies are deemed to act out of suspect
motives. Brown is the law, and racial balance plans are the only means of
complying with the decision. The position reflects courage, but it ignores the
frequent and often complete failure of programs which concentrate solely on
achieving a racial balance.
Desegregation remedies that do not integrate may seem a step backward
toward the Plessy “separate but equal” era. Some black educators, however, see
major educational benefits in schools where black children, parents, and
teachers can utilize the real cultural strengths of the black community to
overcome the many barriers to educational achievement. As Professor
Laurence Tribe argued, “Judicial rejection of the ‘separate but equal’ talisman
seems to have been accompanied by a potentially troublesome lack of sympathy
for racial separateness as a possible expression of group solidarity.”
This is not to suggest that educationally oriented remedies can be developed
and adopted without resistance. Policies necessary to obtain effective schools
threaten the self-interest of teacher unions and others with vested interests in
the status quo. But successful magnet schools may provide a lesson that
effective schools for blacks must be a primary goal rather than a secondary
result of integration. Many white parents recognize a value in integrated
schooling for their children but they quite properly view integration as merely
one component of an effective education. To the extent that civil rights
advocates also accept this reasonable sense of priority, some greater racial
interest conformity should be possible.
***
Is this what the Brown opinion meant by “equal educational opportunity”?
Chief Justice Warren said the Court could not “turn the clock back to 1868
when the [fourteenth] Amendment was adopted, or even to 1896 when Plessy
v. Ferguson was written.” The change in racial circumstances since 1954 rivals
or surpasses all that occurred during the period that preceded it. If the decision
that was at least a catalyst for that change is to remain viable, those who rely
on it must exhibit the dynamic awareness of all the legal and political
considerations that influenced those who wrote it.
Professor Wechsler warned us early on that there was more to Brown than
met the eye. At one point, he observed that the opinion is “often read with less
fidelity by those who praise it than by those by whom it is condemned.” Most
of us ignored that observation openly and quietly raised a question about the
sincerity of the observer. Criticism, as we in the movement for minority rights
have every reason to learn, is a synonym for neither cowardice nor capitulation.
It may instead bring awareness, always the first step toward overcoming still
another barrier in the struggle for racial equality.
Cheryl I. Harris
WHITENESS AS PROPERTY
106 Harv. L. Rev. 1709, 1710–1711, 1713–1716, 1737, 1740–1741, 1745–1759,
1761, 1764–1768, 1776–1780, 1787–1789 (1993)
***
I. INTRODUCTION
In the 1930s, some years after my mother’s family became part of the great
river of Black migration that flowed north, my Mississippi-born grandmother
was confronted with the harsh matter of economic survival for herself and her
two daughters. Having separated from my grandfather, who himself was
trapped on the fringes of economic marginality, she took one long hard look at
her choices and presented herself for employment at a major retail store in
Chicago’s central business district. This decision would have been
unremarkable for a white woman in similar circumstances, but for my
grandmother, it was an act of both great daring and self-denial, for in so doing
she was presenting herself as a white woman. In the parlance of racist
America, she was “passing.”
Her fair skin, straight hair, and aquiline features had not spared her from
the life of sharecropping into which she had been born in anywhere/nowhere,
Mississippi - the outskirts of Yazoo City. But in the burgeoning landscape of
urban America, anonymity was possible for a Black person with “white”
features. She was transgressing boundaries, crossing borders, spinning on
margins, traveling between dualities of Manichean space, rigidly bifurcated
into light/dark, good/bad, white/Black. No longer immediately identifiable as
“Lula’s daughter,” she could thus enter the white world, albeit on a false
passport, not merely passing, but trespassing.
Every day my grandmother rose from her bed in her house in a Black
enclave on the south side of Chicago, sent her children off to a Black school,
boarded a bus full of Black passengers, and rode to work. No one at her job ever
asked if she was Black; the question was unthinkable. By virtue of the
employment practices of the “fine establishment” in which she worked, she
could not have been. Catering to the upper-middle class, understated tastes
required that Blacks not be allowed.
She quietly went about her clerical tasks, not once revealing her true
identity. She listened to the women with whom she worked discuss their
worries - their children’s illnesses, their husband’s disappointments, their
boyfriends’ infidelities - all of the mundane yet critical things that made up
their lives. She came to know them but they did not know her, for my
grandmother occupied a completely different place. That place - where white
supremacy and economic domination meet - was unknown turf to her white co-
workers. They remained oblivious to the worlds within worlds that existed just
beyond the edge of their awareness and yet were present in their very midst.
Each evening, my grandmother, tired and worn, retraced her steps home,
laid aside her mask, and reentered herself. Day in and day out, she made
herself invisible, then visible again, for a price too inconsequential to do more
than barely sustain her family and at a cost too precious to conceive. She left
the job some years later, finding the strain too much to bear. ***
My grandmother’s story illustrates the valorization of whiteness as
treasured property in a society structured on racial caste. In ways so embedded
that it is rarely apparent, the set of assumptions, privileges, and benefits that
accompany the status of being white have become a valuable asset that whites
sought to protect and that those who passed sought to attain - by fraud if
necessary. Whites have come to expect and rely on these benefits, and over
time these expectations have been affirmed, legitimated, and protected by the
law. Even though the law is neither uniform nor explicit in all instances, in
protecting settled expectations based on white privilege, American law has
recognized a property interest in whiteness that, although unacknowledged,
now forms the background against which legal disputes are framed, argued,
and adjudicated. ***
II. THE CONSTRUCTION OF RACE AND THE EMERGENCE OF
WHITENESS AS PROPERTY
The racialization of identity and the racial subordination of Blacks and
Native Americans provided the ideological basis for slavery and conquest.
Although the systems of oppression of Blacks and Native Americans differed
in form - the former involving the seizure and appropriation of labor, the latter
entailing the seizure and appropriation of land - undergirding both was a
racialized conception of property implemented by force and ratified by law.
The origins of property rights in the United States are rooted in racial
domination. Even in the early years of the country, it was not the concept of
race alone that operated to oppress Blacks and Indians; rather, it was the
interaction between conceptions of race and property that played a critical role
in establishing and maintaining racial and economic subordination.
The hyper-exploitation of Black labor was accomplished by treating Black
people themselves as objects of property. Race and property were thus
conflated by establishing a form of property contingent on race - only Blacks
were subjugated as slaves and treated as property. Similarly, the conquest,
removal, and extermination of Native American life and culture were ratified
by conferring and acknowledging the property rights of whites in Native
American land. Only white possession and occupation of land was validated
and therefore privileged as a basis for property rights. These distinct forms of
exploitation each contributed in varying ways to the construction of whiteness
as property. ***
The law assumed the crucial task of racial classification, and accepted and
embraced the then-current theories of race as biological fact. This core precept
of race as a physically defined reality allowed the law to fulfill an essential
function - to “parcel out social standing according to race” and to facilitate
systematic discrimination by articulating “seemingly precise definitions of
racial group membership.” This allocation of race and rights continued a
century after the abolition of slavery. ***
The standards were designed to accomplish what mere observation could
not: “That even Blacks who did not look Black were kept in their place.”
Although the line of demarcation between Black and white varied from rules
that classified as Black a person containing “any drop of Black blood,” to more
liberal rules that defined persons with a preponderance of white blood to be
white, the courts universally accepted the notion that white status was
something of value that could be accorded only to those persons whose proofs
established their whiteness as defined by the law. Because legal recognition of
a person as white carried material benefits, “false” or inadequately supported
claims were denied like any other unsubstantiated claim to a property interest.
Only those who could lay “legitimate” claims to whiteness could be legally
recognized as “white,” because allowing physical attributes, social acceptance,
or self-identification to determine whiteness would diminish its value and
destroy the underlying presumption of exclusivity. In effect, the courts erected
legal “No Trespassing” signs.
In the realm of social relations, racial recognition in the United States is
thus an act of race subordination. In the realm of legal relations, judicial
definition of racial identity based on white supremacy reproduced that race
subordination at the institutional level. In transforming white to whiteness,
the law masked the ideological content of racial definition and the exercise of
power required to maintain it: “It convert[ed] [an] abstract concept into [an]
entity.” ***
III. BOUND BY LAW: THE PROPERTY INTEREST IN WHITENESS AS
LEGAL DOCTRINE IN PLESSY AND BROWN
Even after the period of conquest and colonization of the New World and
the abolition of slavery, whiteness was the predicate for attaining a host of
societal privileges, in both public and private spheres. Whiteness determined
whether one could vote, travel freely, attend schools, obtain work, and indeed,
defined the structure of social relations along the entire spectrum of
interactions between the individual and society. Whiteness then became
status, a form of racialized privilege ratified in law. Material privileges
attendant to being white inhered in the status of being white. After the
dismantling of legalized race segregation, whiteness took on the character of
property in the modern sense in that relative white privilege was legitimated
as the status quo. In Plessy v. Ferguson and the case that overturned it, Brown
v. Board of Education, the law extended protection to whiteness as property,
in the former instance, as traditional status-property, in the latter, as modern
property.
A. Plessy
Plessy arose at a time of acute crisis for Blacks. The system of legalized race
segregation known as Jim Crow and heightened racial violence had reversed
the minimal gains attained by Blacks during Reconstruction. Against a
background of extreme racial oppression, the Supreme Court’s opinion in
Plessy rejecting thirteenth and fourteenth amendment challenges to state
enforced racial segregation was consonant with the overall political climate.
***
Plessy’s claim, however, was predicated on more than the Equal Protection
Clause of the Fourteenth Amendment. Plessy additionally charged that the
refusal to seat him on the white passenger car deprived him of property - “this
reputation [of being white] which has an actual pecuniary value” - without the
due process of law guaranteed by the amendment. Because phenotypically
Plessy appeared to be white, barring him from the railway car reserved for
whites severely impaired or deprived him of the reputation of being regarded
as white. He might thereafter be regarded as or be suspected of being not white
and therefore not entitled to any of the public and private benefits attendant
to white status.
The brief filed on Plessy’s behalf advanced as its first argument that,
because “the reputation of belonging to the dominant race ... is property, in the
same sense that a right of action or inheritance is property,” empowering a
train employee to arbitrarily take property away from a passenger violated due
process guarantees. Because of white supremacy, whiteness was not merely a
descriptive or ascriptive characteristic - it was property of overwhelming
significance and value. Albion Tourgée, one of Plessy’s attorneys, pointedly
argued that the property value in being white was self-evident:
How much would it be worth to a young man entering upon the practice
of law, to be regarded as a white man rather than a colored one? Six-
sevenths of the population are white. Nineteen-twentieths of the property
of the country is owned by white people. Ninety-nine hundredths of the
business opportunities are in the control of white people.... Probably most
white persons if given a choice, would prefer death to life in the United
States as colored persons. Under these conditions, is it possible to conclude
that the reputation of being white is not property? Indeed, is it not the most
valuable sort of property, being the master-key that unlocks the golden door
of opportunity? ***
The opinion … inexplicably proceeded to consider whether Plessy had
suffered damage to his property in the form of his reputation, a question
dependent on the issue of racial classification that the Court had previously
declined to address…. The Court stated:
If he be a white man and assigned to a colored coach, he may have his
action for damages against the company for being deprived of his so-called
property. Upon the other hand, if he be a colored man and be so assigned,
he has been deprived of no property, since he is not lawfully entitled to the
reputation of being a white man.
At one level, the Court’s opinion amounted to a wholesale evasion of the

argument that, as a matter of federal constitutional law, Plessy’s assignment
to a railway car for Blacks, in the absence of a clear standard defining who was
white, was an arbitrary and unauthorized taking of the valuable asset of being
regarded as white. At another level, the Court’s decision lent support to the
notion of race reputation as a property interest that required the protection of
law through actions for damages. It did not specifically consider any particular
rule of race definition, but it protected the property interest in whiteness for
all whites by subsuming even those like Plessy, who phenotypically appeared
to be white, within categories that were predicated on white supremacy and
race subordination. Officially, the court declined to consider whether Plessy
met any statutory definition of whiteness, but deferred to state law as the
legitimate source of racial definitions. Although the opinion rhetorically
signaled some qualifications about the existence of the property right in
whiteness, in fact, the Court protected that right by acknowledging that whites
could protect their reputation of being white through suits for damages and by
determining that Plessy would be subject to rules that continued white
privilege. Plessy demonstrated the Court’s chronic refusal to dismantle the
structure of white supremacy, which is maintained through the institutional
protection of relative benefits for whites at the expense of Blacks. In denying
that any inferiority existed by reason of de jure segregation, and in denying
white status to Plessy, “whiteness” was protected from intrusion and
appropriate boundaries around the property were maintained.
B. Brown I
Nearly sixty years later, Brown I reversed the Court’s prior endorsement of
“separate but equal” in Plessy and marked the end of the legal recognition of
state-enforced racial separation…. To its credit, the Court not only rejected the
property right of whites in officially sanctioned inequality, but also refused to
protect the old property interest in whiteness by not accepting the argument
that the rights of whites to disassociate is a valid counterweight to the rights
of Blacks to be free of subordination imposed by segregation. It did not accept
the premise that neutral principles guaranteed that white preferences should
remain undisturbed.
Yet Brown I was plagued by ambiguous motives and clouded rhetorical
vision. In fact, it is unclear what definition of equality was articulated by
Brown I, and in this ambiguity, the property interest in whiteness continued
to reside. Against the backdrop of real inequality, even as the Court abandoned
the highly formalistic view of equality underpinning Plessy, it remained
unwilling to embrace any form of substantive equality, unwilling to
acknowledge any right to equality of resources. The Court refused to extend
continued legal protection to white privilege, yet it simultaneously declined to
guarantee that white privilege would be dismantled, or even to direct that the
continued existence of institutionalized privilege violated the equal protection
rights of Blacks.
In its unwillingness to do so, the Brown I Court failed to address the full
measure of the harm. A very real aspect of injury was that legalized race
segregation structured material inequalities into all socioeconomic relations
and institutions, including publicly funded schools. All other things, then, most
assuredly were not equal. The purpose of the law of segregation was to
subordinate and disadvantage Blacks. Indeed, legalized segregation could not
achieve its purpose without imposing inequality. The purposeful creation and
maintenance of inequality, then, was the violation from which the plaintiffs in
Brown I sought relief. Although the Court partially recognized the claim and
acknowledged that “separate ... is inherently unequal,” it failed to expose the
problem of substantive inequality in material terms produced by white
domination and race segregation.
Brown I’s dialectical contradiction was that it dismantled an old form of
whiteness as property while simultaneously permitting its reemergence in a
more subtle form. White privilege accorded as a legal right was rejected, but
de facto white privilege not mandated by law remained unaddressed. In failing
to clearly expose the real inequities produced by segregation, the status quo of
substantive disadvantage was ratified as an accepted and acceptable base line
- a neutral state operating to the disadvantage of Blacks long after de jure
segregation had ceased to do so. In accepting substantial inequality as a
neutral base line, a new form of whiteness as property was condoned. Material
inequities between Blacks and whites - the product of systematic past and
current, formal and informal, mechanisms of racial subordination - became the
norm. Brown disregarded immediate associational preferences of whites, but
sheltered and protected their expectations of continued race-based privilege.
Redressing the substantive inequalities in resources, power, and ultimately,
educational opportunity that were the product of legislated race segregation
was left for another day, as yet not arrived. Although the Court might
legitimately retreat from the task of articulating a remedy that might too
deeply involve the judiciary in the operation of public schools, it is unacceptable
for the Court to ignore the infringement or violation of a constitutionally
protected right because of concerns about the proper institutional role of the
judiciary. As Laurence Tribe notes, “there is a very real difference between
saying ‘There is a violation here but institutional considerations prevent us
from providing a remedy,’ and saying ‘There is no violation.”’ Similarly, when
Brown declined to acknowledge the problem of substantive and de facto
inequities in the education system, it failed to identify clearly the harm, and
instead, set the matter of remediation on a defective foundation.
C. Brown II
The Court’s remedial approach in Brown II also can be seen as an example
of judicial weakness and undue deference to white concerns; but more
fundamentally, Brown II recognized the property interest in whiteness by
leaving intact the ability of whites to control, manage, postpone, and if
necessary, thwart change. *** Integration …, at least in the way it is currently
structured and implemented, has not led to the goal sought by Blacks: a quality
education for Black children or, at least, minimum equity. Eliminating the
subordination of the intended beneficiaries of the Brown decision - Black
children - would have required more expansive remedies. Selecting
desegregation as the sole remedy was the consequence of defining the injury
solely as racial separation.
Moreover, Brown II’s order to desegregate with all deliberate speed was so
open-ended that it engendered increasingly protracted battles with social and
political forces that defiantly resisted court-ordered integration. Robert Carter,

former General Counsel of the National Association for the Advancement of
Colored People, noted that Brown II represented a break with a tradition in
constitutional law that constitutionally protected rights were regarded as
“personal and present,” the violation of which required immediate remediation.
Thus, when Brown II directed the schools to desegregate “with all deliberate
speed” rather than immediately, it articulated a new and heretofore unknown
approach to rectifying violations of constitutional rights - an approach that
invited defiance and delay. It is clear that the nature of the injury to Black
children was not what defined the scope of the remedy; rather, the level of
white resistance dictated the parameters of the remedy. Although the Court
was unwilling to give official sanction to legalized race segregation and thus
required an end to “separate but equal,” it sought to do so in a way that would
not radically disturb the settled expectations of whites that their interests -
particularly the relative privilege accorded by their whiteness - would not be
violated.
D. Brown’s Mixed Legacy
Milliken v. Bradley [(1974)] marks the logical consequence of Brown’s
ambivalence on the question of the state’s responsibility to give content to the
mandate of equality. Because the Milliken Court saw no evidence that
suburban school districts had directly caused or substantially contributed to
the segregation of Detroit’s school system, it rejected, by a five to four vote, an
interdistrict, metropolitan desegregation plan, stating that it would exceed the
permitted boundaries of judicial action. The majority did not contest the
factual determination that the government at all levels had “participated in
the maintenance” of racially discriminatory policies in the Detroit school
system, nor did it reject the findings of the court below that private sectors
such as real estate and lending institutions had engaged in exclusionary
practices that created residential segregation and reinforced school
segregation. It reinterpreted all of these facts, however, to be neutral and,
therefore, an inadequate predicate for intervention in an unfortunate but
unrectifiable inequity. In effect, the protection of the expectations of the local
school boards that the de facto segregation resulting from exogenous factors
would be left undisturbed was determined to be of greater significance than
any constitutional injury caused by the state. Like the substantive inequality
of power and resources in Brown, the white privilege and Black subordination
fostered by systems of interlocking private and public power was left intact by
Milliken.
Thus, we are left with Brown’s mixed legacy: Brown held that the
Constitution would not countenance legalized racial separation, but Brown did
not address the government’s responsibility to eradicate inequalities in
resource allocation either in public education or other public services, let alone
to intervene in inequities in the private domain, all of which are, in significant
measure, the result of white domination. In attempting to remedy state-
mandated racial separation by the simple prescription of desegregation, the
Brown decisions finessed the question of what to do about the inequality
produced by state and private policy and practice. Brown modified Plessy’s
interpretation of the Equal Protection Clause and accommodated both Blacks’
claims for “equality under law” and the global interests of white ruling elites.
What remained consistent was the perpetuation of institutional privilege
under a standard of legal equality. In the foreground was the change of formal
societal rules; in the background was the “natural” fact of white privilege that
dictated the pace and course of any moderating change. What remained in
revised and reconstituted form was whiteness as property.
IV. THE PERSISTENCE OF WHITENESS AS PROPERTY
In the modern period, neither the problems attendant to assigning racial
identities nor those accompanying the recognition of whiteness have
disappeared. Nor has whiteness as property. Whiteness as property continues
to perpetuate racial subordination through the courts’ definitions of group
identity and through the courts’ discourse and doctrine on affirmative action.
The exclusion of subordinated “others” was and remains a central part of the
property interest in whiteness and, indeed, is part of the protection that the
court extends to whites’ settled expectations of continued privilege.
The essential character of whiteness as property remains manifest in two
critical areas of the law and, as in the past, operates to oppress Native
Americans and Blacks in similar ways, although in different arenas….
A. The Persistence of Whiteness as Valued Social Identity
Even as the capacity of whiteness to deliver is arguably diminished by the
elimination of rigid racial stratifications, whiteness continues to be perceived
as materially significant. Because real power and wealth never have been
accessible to more than a narrowly defined ruling elite, for many whites the
benefits of whiteness as property, in the absence of legislated privilege, may
have been reduced to a claim of relative privilege only in comparison to people
of color. Nevertheless, whiteness retains its value as a “consolation prize”: it
does not mean that all whites will win, but simply that they will not lose, if
losing is defined as being on the bottom of the social and economic hierarchy -
the position to which Blacks have been consigned. ***
B. Subordination Through Denial of Group Identity
Whiteness as property is also constituted through the reification of
expectations in the continued right of white-dominated institutions to control
the legal meaning of group identity. This reification manifests itself in the
law’s dialectical misuse of the concept of group identity as it pertains to racially
subordinated peoples. The law has recognized and codified racial group
identity as an instrumentality of exclusion and exploitation; however, it has
refused to recognize group identity when asserted by racially oppressed groups
as a basis for affirming or claiming rights. The law’s approach to group identity
reproduces subordination, in the past through “race-ing” a group - that is, by
assigning a racial identity that equated with inferior status, and in the present
by erasing racial group identity. ***
In Mashpee Tribe v. Town of Mashpee [(1978)], the Mashpee sued to recover
land that several Indians had conveyed to non-Indians in violation of a statute
that barred alienation of tribal land to non-Indians without the approval of the
federal government. In order to recover possession of the land, the Mashpee
were required to prove that they were a tribe at the time of the conveyance.
*** The Mashpee’s experience was filtered, sifted, and ultimately rendered
incoherent through [an] externally constituted definition of tribe that

incorporated outside criteria regarding race, leadership, territory, and
community. The fact that the Mashpee had intermingled with Europeans,
runaway slaves, and other Indian tribes signified to the jury and to the court
that they had lost their tribal identity.
But for the Mashpee, blood was not the measure of identity: their identity
as a group was manifested for centuries by their continued relationship to the
land of the Mashpee; their consciousness and embrace of difference, even when
it was against their interest; and, their awareness and preservation of cultural
traditions. Nevertheless, under the court’s standard, the tribe was “incapable
of legal self-definition.” Fundamentally, then, the external imposition of
definition maintained the social equilibrium that was severely challenged by
the Mashpee land claims. *** The modern definition of “tribe” …
misinterpret[ed] the Mashpee’s adaptation to be assimilation. The Mashpee
absorbed and managed, rather than rejected and suppressed, outsiders; yet the
court erased their identity, assuming that, by virtue of intermingling with
other races, the Mashpee’s identity as a people had been subsumed. The
Mashpee were not “passing,” but were legally determined to have “passed” - no
longer to have distinct identity. This erasure was predicated on the assumption
that what is done from necessity under conditions of established hierarchies of
domination and subordination is a voluntary surrender for gain.
Beyond the immediate outcome of the case lies the deeper problem posed by
the hierarchy of the rules themselves and the continued retention by white-
controlled institutions of exclusive control over definitions as they pertain to
the identity and history of dominated peoples. Although the law will always
represent the exercise of state power in enforcing its choices, the violence done
to the Mashpee and other oppressed groups results from the law’s refusal to
acknowledge the negotiated quality of identity. Whiteness as property assumes
the form of the exclusive right to determine rules; it asserts that, against a
framework of racial dominance and unequal power, fairness can result from a
property rule, or indeed any other rule, that imposes an entirely externally
constituted definition of group identity. Reality belies this presumption. In
Plessy, the Court affirmed the right of the state to define who was white,
obliterating aspects of social acceptance and self-identification as sources of
validation and identity. The Mashpee were similarly divested of their identity
through the state’s exclusive retention of control over meaning in ways that
reinforced group oppression. When group identity is a predicate for exclusion
or disadvantage, the law has acknowledged it; when it is a predicate for
resistance or a claim of right to be free from subordination, the law determines
it to be illusory. This determinist approach to group identity reproduces racial
subordination and reaffirms whiteness as property.
C. Subjugation Through Affirmative Action Doctrine ***
The Supreme Court’s rejection of affirmative action programs on the
grounds that race-conscious remedial measures are unconstitutional under the
Equal Protection Clause of the Fourteenth Amendment - the very
constitutional measure designed to guarantee equality for Blacks - is based on
the Court’s chronic refusal to dismantle the institutional protection of benefits
for whites that have been based on white supremacy and maintained at the
expense of Blacks. As a result, the parameters of appropriate remedies are not
dictated by the scope of the injury to the subjugated, but by the extent of the
infringement on settled expectations of whites. These limits to remediation are
grounded in the perception that the existing order based on white privilege is
not only just “there,” but also is a property interest worthy of protection. Thus,
under this assumption, it is not only the interests of individual whites who
challenge affirmative action that are protected; the interests of whites as
whites are enshrined and institutionalized as a property interest that accords
them a higher status than any individual claim to relief.
This protection of the property interest in whiteness is achieved by
embracing the norm of colorblindness. Current legal definitions interpret race
as a factor disconnected from social identity and compel abandonment of race-
consciousness. Thus, at the very historical moment that race is infused with a
perspective that reshapes it, through race-conscious remediation, into a
potential weapon against subordination, official rules articulated in law deny
that race matters. Simultaneously, the law upholds race as immutable and
biological. The assertion that race is color and color does not matter is, of
course, essential to the norm of colorblindness. To define race reductively as
simply color, and therefore meaningless, however, is as subordinating as
defining race to be scientifically determinative of inherent deficiency. The old
definition creates a false linkage between race and inferiority; the new
definition denies the real linkage between race and oppression under
systematic white supremacy. Distorting and denying reality, both definitions
support race subordination. *** Together, [the Supreme Court’s affirmative
action] cases establish the Court’s major doctrinal view of affirmative action as
abnormal and against the norm of nondiscrimination. They speak the formal
language of equality, but subordinate equality by vesting the expectations of
whites that what is unequal in fact will be regarded as equal in law. Thus, they
enshrine whiteness as property.
V. DE-LEGITIMATING THE PROPERTY INTEREST IN WHITENESS
THROUGH AFFIRMATIVE ACTION
Within the worlds of de jure and de facto segregation, whiteness has value,
whiteness is valued, and whiteness is expected to be valued in law. The legal
affirmation of whiteness and white privilege allowed expectations that
originated in injustice to be naturalized and legitimated. The relative
economic, political, and social advantages dispensed to whites under
systematic white supremacy in the United States were reinforced through
patterns of oppression of Blacks and Native Americans. Materially, these
advantages became institutionalized privileges, and ideologically, they became
part of the settled expectations of whites- a product of the unalterable original
bargain. The law masks what is chosen as natural; it obscures the
consequences of social selection as inevitable. The result is that the distortions
in social relations are immunized from truly effective intervention, because the
existing inequities are obscured and rendered nearly invisible. The existing
state of affairs is considered neutral and fair, however unequal and unjust it is
in substance. Although the existing state of inequitable distribution is the
product of institutionalized white supremacy and economic exploitation, it is
seen by whites as part of the natural order of things that cannot legitimately
be disturbed. Through legal doctrine, expectation of continued privilege based

on white domination was reified; whiteness as property was reaffirmed.
Over time [the property interest in whiteness] has changed in form, but it
has retained its essential exclusionary character and continued to distort
outcomes of legal disputes by favoring and protecting settled expectations of
white privilege. The law expresses the dominant conception of “rights,”
“equality,” “property,” “neutrality,” and “power”: rights mean shields from
interference; equality means formal equality; property means the settled
expectations that are to be protected; neutrality means the existing
distribution, which is natural; and, power is the mechanism for guarding all of
this. ***
Affirmative action begins the essential work of rethinking rights, power,
equality, race, and property from the perspective of those whose access to each
of these has been limited by their oppression. *** Rereading affirmative action
to de-legitimate the property interest in whiteness suggests that if,
historically, the law has legitimated and protected the settled expectations of
whites in white privilege, delegitimation should be accomplished not merely by
implementing equal treatment, but by equalizing treatment among the groups
that have been illegitimately privileged or unfairly subordinated by racial
stratification. Obviously, the meaning of equalizing treatment would vary,
because the extent of privilege and subordination is not constant with
reference to all societal goods. In some instances, the advantage of race
privilege to poorer whites may be materially insignificant when compared to
their class disadvantage against more privileged whites. But exposing the
critical core of whiteness as property as the unconstrained right to exclude
directs attention toward questions of redistribution and property that are
crucial under both race and class analysis. The conceptions of rights, race,
property, and affirmative action as currently understood are unsatisfactory
and insufficient to facilitate the self-realization of oppressed people. ***
C. What Affirmative Action Has Been; What Affirmative Action Might
Become ***
… Formal equality overlooks structural disadvantage and requires mere
nondiscrimination or “equal treatment”; by contrast, affirmative action calls
for equalizing treatment by redistributing power and resources in order to
rectify inequities and to achieve real equality. The current polarized debate on
affirmative action and the intense political and judicial opposition to the
concept is thus grounded in the fact that, in its requirement of equalizing
treatment, affirmative action implicitly challenges the sanctity of the original
and derivative present distribution of property, resources, and entitlements
and directly confronts the notion that there is a protectable property interest
in “whiteness.” If affirmative action doctrine were freed from the constraint of
protecting the property interest in whiteness, if indeed it were conceptualized
from the perspective of those on the bottom, it might assist in moving away
from a vision of affirmative action as an uncompensated taking and inspire a
new perspective on identity as well. The fundamental precept of whiteness -
the core of its value - is its exclusivity. But exclusivity is predicated not on any
intrinsic characteristic, but on the existence of the symbolic “other,” which
functions to “create an illusion of unity” among whites. Affirmative action
might challenge the notion of property and identity as the unrestricted right
to exclude. In challenging the property interest in whiteness, affirmative action
could facilitate the destruction of the false premises of legitimacy and
exclusivity inherent in whiteness and break the distorting link between white
identity and property. ***
QUESTION
Professor Bell concludes that “[c]riticism … may … bring awareness, always
the first step toward overcoming still another barrier in the struggle for racial
equality.” Professor Harris goes beyond this, returning from her critique with
a program of reform. Based on either or both of their accounts, what do you
think would be the most effective next step toward realizing the full promise
of Brown v. Board of Education, however you would define it. Consider whether
you would take that next step within the legal system (through further
litigation or legislation, for example) or outside of the legal system (through
political or social action), and why.

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WEEK ONE

INTRODUCTION TO AND ORIGINS OF

A. CONSTITUTIONAL CONVERSATION: A CASE STUDY

year President Eisenhower, noting “citizens are keenly aware of the

B. ANXIETY ABOUT NEUTRALITY AND PRINCIPLED JUDGING

TOWARD NEUTRAL PRINCIPLES OF CONSTITUTIONAL LAW

their neutrality transcend any immediate result that is involved. When no

For me, assuming equal facilities, the question posed by state-enforced

THE LAWFULNESS OF THE SEGREGATION DECISIONS

C. THE HISTORICAL DEBATE

(4) Is Professor Klarman correct that Professor McConnell’s interpretation

ORIGINALISM AND THE SEGREGATION DECISIONS

important character of education. The Court thus forfeited its opportunity to

BROWN, ORIGINALISM, AND CONSTITUTIONAL THEORY:

debates constitute the most extensive congressional discussion of the school

though other conservatives have also succumbed to this temptation. That a

D. THE DOCTRINAL LEGACY OF BROWN & NEUTRAL PRINCIPLES

civil rights. The Supreme Court’s invocation in Bolling that “[s]egregation in

it was incapable as an institution of policing the issue of the physical equality

WHAT CAN BROWN® DO FOR YOU? NEUTRAL PRINCIPLES AND

as a prohibition on racial subordination and had recognized its aspiration that

justification for resolving the presidential election of 2000. Precisely because

E. CRITICAL APPROACHES: BEYOND NEUTRAL PRINCIPLES

Derrick A. Bell, Jr.

segregation. Thus, segregation was viewed as a barrier to further

and prolonged opposition to its implementation posed an even greater danger

At one level, the Court’s opinion amounted to a wholesale evasion of the

political forces that defiantly resisted court-ordered integration. Robert Carter,

incoherent through [an] externally constituted definition of tribe that

be disturbed. Through legal doctrine, expectation of continued privilege based

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