Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (33 page)

But how did Brown come to be, and what did it actually accomplish?

The Court's first anti-school segregation decision was 1938's Missouri
ex rel. Gaines v. Canada. The Court ruled that Missouri had to provide
its black citizens who wanted to attend law school the same opportunities it did its white ones. Arguably, this was simply an application of
Plessy's "separate but equal" doctrine.

The next notable race discrimination case was Shelley v. Kraemer
(1948). At issue was a restrictive covenant, an agreement among neighbors that none of them would sell his house to a non-white. The legal
issue, according to the Court, was whether the state court system in Missouri could be involved in enforcing such an agreement.

Consider what was really going on in the case: the Court was intervening to consider the validity of a private contract freely entered into among neighbors. Clearly, the Fourteenth Amendment's injunction that no state
could deny any person the equal protection of the laws was not at issue;
the law involved was simply the law of private contracts. Such agreements are made all the time, and courts-without looking into the
motives underlying them-enforce them as a matter of course. So, for
example, if someone writes in his will that he will leave more of his property to his sons than to his daughters or more to his Baptist grandchildren
than to his Lutheran ones, courts simply do not care.

In Shelley, however, the Court ruled that if a state enforced a private
agreement discriminating against non-whites, as the restrictive covenants
did, it would violate the Fourteenth Amendment. And while no state
action had been involved in making these covenants, the state courts
were implicated because they enforced them-which supposedly violated the Fourteenth Amendment.

If anyone took this reading of the matter seriously, provisions in wills
favoring people or institutions by race, sex, religion, ethnic background,
national origin, or any of a score of other suspect classifications would be
unenforceable; so would donations to scholarship funds directed to particular sex, racial, ethnic, or religious groups. But the Court majority intended
its reasoning to be applied solely to restrictive covenants. In short, the justices had decided that they did not like restrictive covenants, and the Equal
Protection Clause offered them plausible-if legally fatuous-grounds for
invalidating them. So they did.

Desegregation in the South was already under way by 1948, as various
cities considered integrating police forces and sporting events, cities in
the upper South started electing blacks to political positions, and the segregation of public transportation was up for debate. At the same time,
lawyers from the National Association for the Advancement of Colored
People (NAACP) systematically attacked segregation through the courts.

In 1950, the Supreme Court decided in Sweatt v. Painter that Texas
could not require black law students to attend a different state law school from white students. No matter how many resources were poured into
the black school, the justices reasoned, it would never be on par, in terms
of prestige, alumni influence, or history, with the University of Texas
School of Law in Austin. When it came to legal education, "separate but
equal" was impossible, and so separation was unconstitutional.

By this point, as the late Georgia governor and U.S. senator Herman
Talmadge conceded, white politicians in the South could see the handwriting on the wall. Yet they rushed to spend money on upgrading facilities in black primary and secondary schools in an attempt to render them
truly "separate but equal."

Too late. In 1954, with Brown v. Board of Education, the Court served
up what justice Robert H. Jackson admitted was new law for a new day:
segregation of the races in public schools would be unconstitutional ever
after. The Court based its holding on "modern authority," in Warren's
words, in the field of psychology: specifically, on Kenneth Clark's doll
experiments.

Clark had shown northern and southern black children a white doll
and a black doll and asked them to identify which one they preferred.
Many black children from segregated schools chose the white doll. Clark
testified that he had demonstrated that "a fundamental effect of segregation is basic confusion in individuals and their concepts about themselves," adding that the black kids had "been definitely harmed in the
development of their personalities."

On examination, however, Clark's own data showed that black kids
from unsegregated environments were more likely to prefer the white
dolls than those from segregated environments. If the experiment proved
anything, in other words (which seems doubtful), it was that segregation
improved children's "concepts about themselves."

In any event, it should go without saying that neither the ratifiers of
the Constitution nor the ratifiers of the Fourteenth Amendment imagined
that the Supreme Court should analyze doll tests to decide how states must organize their school systems. If the doll tests were relevant to anyone, perhaps they were relevant to teachers, principals, school boards,
and maybe even city, county, and state legislators. But the Supreme
Court? Why? Where is the "doll test" in the Constitution?

On the same day the Court issued its opinion in Brown v. Board of
Education, it decided in Bolling v. Sharpe that the Fifth Amendment's
Due Process Clause banned segregation of public schools in the District
of Columbia. This was hardly a tenable reading of the Fifth Amendment,
which had been drafted chiefly by James Madison (owner of more than
one hundred slaves) and ratified by the states, a majority of which still
had legal slavery. Nor was it any more tenable under the Fourteenth
Amendment. The Congress that wrote the Fourteenth Amendment had
itself established segregated schools in Washington, D.C.

And, of course, the Brown ruling violated the Court's own precedent
of Plessy v. Ferguson, which said that segregation was constitutional. No amendment had changed the Constitution since. The South, predictably,
was outraged by Brown. The growing support for desegregation among
white southerners fell away. Senator Harry Flood Byrd of Virginia-scion
of one of the South's great seventeenth-century families and never a racial
bomb-thrower-promised "massive resistance" to desegregation.

Portrait of a Justice

William Brennan (1906-1990) played a leading role in the revolutionary Warren Court of the 1950s and 1960s and then, with the liberal bloc's decline in the
Burger and early Rehnquist years, became the Court's chief liberal spokesman.
His approach to judging was captured in his Rule of Five: with five votes, he could do anything. He
led the majority that wrote the failed Equal Rights Amendment into "constitutional law," banned
capital punishment for a number of years, forced children to submit to school busing for racial balance, restricted legislatures' discretion in punishing criminals, drove Christianity from the public
square, and generally made McGovernism the country's ruling legal philosophy. Brennan was to the
twentieth century what John Marshall was to the nineteenth: the judge who won for a roundly
rejected political impulse a lasting victory in the courts.

Had segregationists known what was going on behind closed doors at
the Supreme Court, they would have been even more outraged. One justice had asked his law clerk to research the question of whether the Fourteenth Amendment had been intended to ban racial segregation in
schools. The clerk, despite his own predilections, had answered no, and
his research was shared among the justices. Some of the nation's leading
historians advised the NAACP the same way.

But in his opinion for the Court, Chief Justice Earl Warren said that the
Court could not be bound by the understanding of 1868. In short, the
Court could not be bound by the Constitution or the clear original understanding of its amendments. Nor did the Court have to show the slightest respect to the laws made by freely elected legislatures in the states. In
fact, the Court was bound by nothing at all but the personal policy preferences of nine justices.

How, exactly, could this judicial ukase be enforced? Did school districts across the country, not just the South (the case was Brown v. Board
of Education of Topeka, Kansas, after all), have to desegregate overnight?
The Court said that the parties should come back the next year to talk
about it.

So Brown v. Board of Education was really a multi-part decision. The ruling in 1954 was only Part I. In Brown v. Board of Education (II) (1955), the
Court said that schools must be desegregated "with all deliberate speed."
Meanwhile, resistance was building. In the end, some southern localities
closed their public schools-for years-rather than have black and white students attend school together; whites in some areas, meanwhile, were provided state-supported private schooling while their black neighbors were left with
few or no educational options. The issue of desegregation now dominated
southern politics

President Dwight Eisenhower thought that Brown was incorrect, but
he did not say so in public. He essentially kept his hands off the schools
issue, although his administration was involved in ongoing litigation concerning other forms of segregation. In 1958, however, when the governor
of Arkansas sent in the National Guard rather than allow Little Rock's
Central High School to admit a handful of black students, Eisenhower
intervened by sending in U.S. Army paratroopers.

Here the Supreme Court saw its opening. In an opinion in Cooper v.
Aaron (1958) signed by all the justices, the Court declared that it was the
final decider of all questions constitutional. It denied that state governors
and legislators had anything to say about segregated schools. Calling on
Chief Justice John Marshall's claim of
judicial supremacy in Marbury v. Madison (1803), the Court insisted that the
Supremacy Clause of the Constitution
made not only the Constitution, but also
the Court's "constitutional law," "the
supreme law of the land." State executive
and legislative attempts to circumvent
Supreme Court decisions, the Court said,
were attempts to circumvent the Constitution itself.

With the strong wind of the Brown decision at its back, the Court would
soon undertake a wide-ranging revolution in American law and government. In time, it would become accustomed to deciding any question it
found interesting, despite the absence of constitutional authority to do so.
Its critics would have to answer the question, "If you disapprove of the
Court's reasoning in this case, does that mean you don't accept Brown?"

A Book You're Not
Supposed to Read

A Time to Lose: Representing Kansas in
Brown v. Board of Education by Paul E. Wilson; Lawrence, KS: University Press of
Kansas, 1995.

The Court's frustration with Brown's results did not end in 1958. In
fact, between 1954 and 1964, Brown had almost no effect on Deep South
enrollment patterns. It was only the Civil Rights Act of 1964, with its
assignment of limitless federal resources to enforcement of the Fifteenth
Amendment, and the Voting Rights Act of 1965, that forced southern
Democrats to appeal for black votes, that ended racial segregation in
southern education.

One issue that had arisen repeatedly during the debate over the Civil Rights
Act of 1964-which, thanks to Democratic opposition, was the longest
debate in the history of Congress-concerned the act's constitutionality.
After all, the Supreme Court had ruled in the Civil Rights Cases of 1883 that
the nearly identical Civil Rights Act of 1875 was an unconstitutional
attempt by Congress to regulate matters reserved exclusively to the states.

By any fair reading, the Civil Rights Cases were correctly decided. But,
as justices had made clear in handing down the Brown (I) decision in
1954, they did not intend to be bound by history-that is, by the people's
intention when they ratified the Fourteenth Amendment. Instead, the
Court was in the business of giving America "new law for a new day."