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Brown v. Board, a great but wrongly written decision

By Robert S. Sargent, Jr.
web posted August 16, 2004

The Desegregation Cases had this generative force in other areas because the opinions rejected the presumption of Constitutionality and other rules of judicial self restraint. - Archibald Cox

I have gotten some grief for my statement in my last column that Brown v. Board was a great decision. I'm sure that my millions of readers would agree that now, fifty years after Brown was decided, it is time to reveal the true meaning of the case.

In 1954, the Warren Court, in Brown v. Board, overturned the 1896 decision known as Plessy v. Ferguson which held that "separate but equal" public facilities for blacks and whites was Constitutional. One criticism of Brown is that the decision overturned 50 years of accepted jurisprudence. Stare Decisis should control. This, of course, is nonsense. Justices have never hesitated to overrule past decisions, and bad decisions should be overturned. Another criticism has been a linkage between Brown and the subsequent court-ordered busing. Again, nonsense. Brown did not mandate that Courts would decide the method that states would take to desegregate their schools.

Cass Sunstein in the New Yorker (May 3, 2004), says of Derrick Bell, author of Silent Covenants: Brown V. Board of Education and the Unfulfilled Hopes for Racial Reform: "If Brown was destined to fail, as Bell believes, what would he have had the Supreme Court do in 1954? Surprisingly, he argues that the Court should have reaffirmed Plessy and permitted segregation to continue – but should have insisted that separate must be genuinely equal." More nonsense. Just because it "failed," in Bell's opinion, doesn't mean one looks for other results. The opinion itself must be examined as to its Constitutionality.

The Fourteenth Amendment states that "No State shall…deny to any person within its jurisdiction the equal protection of the laws." The purpose of this was to protect ex-slaves from being treated unfairly by any state government. Race-based laws were forbidden, period. And segregated school systems are race-based. It's a no-brainer. The Warren Court could have written this decision in one paragraph, but they had other ideas.

The unanimous opinion written by Chief Justice Earl Warren, does not say that Plessy was wrong. Instead, it says, "We must look…to the effect of segregation itself on public education. In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life." This formalizes the concept of a "changing Constitution." What was right in the past may not be right today. This gives the Court room for all kinds of mischief.

If the Court decides that past interpretations don't fit with their idea of today's mores, they can "change" the Constitution to make it fit. As Archibald Cox says in his The Court and the Constitution: "We…have to admit that sometimes the Court does impose constitutional interpretations supported only by the notions of justice shared by a majority of Justices." And Brown gives them the cover to do so.

Instead of deciding Brown on strictly Constitutional grounds, the opinion tries to prove that segregation discriminates. They do this by quoting social science studies: "Segregation of white and colored children in public schools has a detrimental effect upon colored children…for the policy of separating races is usually interpreted as denoting the inferiority of the negro group." Etc., etc., which leads to Lawrence Tribe's analysis in his American Constitutional Law: "The Court invalidated segregation by law in public schools in Brown v. Board because that system unavoidably communicated a social message of black inferiority." So now, the reason for the decision is based on a social science study, not the Constitution.

To decide such an important case citing non-legal social science studies trivializes the Constitutional issues. It's irrelevant whether these studies are valid or not. Unfortunately for those who don't believe in strictly following the words of the Constitution, this again gives it cover for all kinds of decisions. As Robert Bork wrote in his The Tempting of America: "Those who wish to be free of the restraints of original understanding [of the Constitution] in the hope that courts will further a particular policy agenda regularly seek to discredit that philosophy [original understanding] by claiming that it could not have produced the outcome in Brown."

So, dear readers, here is the proper analysis: The outcome of Brown v. Board was correct and contrary to Archibald Cox, Brown could have been written by 9 "original understanding" Justices without "rejecting the presumption of Constitutionality." But the opinion was incorrectly written and has led to 50 years of activist Supreme Court Justices messing with Cox's "other areas."

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right. He can be reached at rssjr@citcom.net.

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