A New Look at Brown v. Board and the Constitution

On May 17, 1954, the cultural landscape of America was changed forever. The United States Supreme Court unanimously and explicitly outlawed racial segregation of public education facilities. The landmark decision placed the force of the law behind civil rights, inspiring the subsequent Civil Rights movement, which dramatically strengthened minority rights within one generation. Nevertheless, the case did not assuage resentment of the Constitution and federal law in a large segment of the African American community. Such skepticism is, to a degree, grounded in history. Slavery, the three-fifths clause, failure of Reconstruction, “separate but equal,” and segregation in the armed forces pointed to the Constitution’s complicity in an often tragic African-American experience. Supreme Court Justice Thurgood Marshall, even after successfully arguing Brown as a lawyer, warned against undue reverence for the Framers, claiming that the “government they devised was defective from the start [in]… its respect for the individual freedoms and human rights, we hold as fundamental today.”

It is not surprising then that the philosophy of originalism has not historically resonated among African-Americans. Broadly, originalism is a legal theory which accepts that the Constitution has a fixed meaning to which judges should adhere. Implicit in originalism is a faith in the wisdom of the Founding. Traditionally, politically conservative judicial scholars have most actively promoted the theory. Today, Justices Scalia and Thomas are the strongest proponents of originalism.

Critics of originalism argue that strict adherence to a “racist” document is bound to produce flawed legal decisions. They instead advocate a concept of the Constitution as an evolving document, which judges should interpret in line with contemporary notions of justice. The Warren Court’s majority opinion in Brown, which clearly reflected an evolutionist interpretation, put originalism on the defensive. With the handing down of Brown, critics of originalism were armed with a potentially powerful weapon. On the assumption that strict adherence to the original meaning of the Fourteenth Amendment would not have yielded the just result, the end to the evils of segregated public schools, the validity of originalism as a theory of constitutional interpretation became questionable. But is this criticism of originalism, and more broadly, the Constitution valid?

For nearly a century preceding 1954, race relations in the United States were dominated by institutionalized segregation, a system of racial separation which, while in theoretically providing for separate but equal treatment of both white and black Americans, in practice perpetuated inferior treatment of the latter group. The separate but equal standard was legally enshrined into the law with the 1896 Supreme Court decision Plessy v. Ferguson. In one of the most famous legal holdings in American history, the Warren Court overturned this injustice by ruling that “separate educational facilities are inherently unequal.”

Perhaps due to the compelling moral case for the result in Brown, contemporary discussion of the serious defects in its methodology has been muffled. Beyond Brown’s
instrumental role in barring segregation, the case pioneered the admission of social science research as hard evidence. Using education psychologist Kenneth Clark’s study on black children’s reaction to black and white dolls, Marshall and his colleagues concluded from the more favorable reaction to white dolls that black children regarded themselves as inferior. In introducing social science to the case, the Warren Court radically jeopardized the fundamental integrity of legal reasoning. To oppose institutionalized segregation on the basis of disputable social science research weakens the sound legal case against such a practice. If research indicated that integrated schools increased black children’s feelings of inferiority would the Court be justified in reversing Brown?

Rather than relying on social-science research, the Court could have arrived at the just decision with the principled thrust of the Constitution behind it by pointing to the original construction of the Fourteenth Amendment. At the time of its ratification, large majorities of Congress understood the Fourteenth Amendment to mandate equal protection of the law in all public facilities, including public education, as seen by the legislative debates between 1870 and 1875. In Plessy v. Ferguson, however, the Court unequivocally strayed from the original meaning of the Constitution and instead embraced a doctrine that was overwhelmingly rejected by Congress at the time of the framing. Between 1870 and 1875, Congress explicitly refused to vote in favor of bills allowing for a “separate but equal” standard. By looking to the original meaning of the Constitution, the Court would have positioned itself to fully overturn Plessy while tempering opposition to its ruling. The Constitution recognizes the immutability of certain rights regardless of social science research. Laws which deliberately subordinate the inherent worth of individuals based on accidental racial characteristics are indubitably inconsistent with the original meaning and text of the Fourteenth Amendment, which insists on the equality of rights regardless of race. At its core, the holding in Brown is ultimately a vindication of the theory of originalism.

The issue of originalism in Brown points to a more fundamental lesson. In rejecting the theory of originalism, much of the modern Civil Rights movement has placed itself in opposition to the Constitution. This disillusionment with the legal traditions of the nation is unfortunate. Inquiry into the original meaning of the Constitution reveals that the powerful weight of the nation’s legal foundation is consistent with the cause of racial justice. It is not originalism, but rather deviation from the strict meaning of the Constitution, which has produced many of the grossest violations of equality. By invoking the Constitution, the Civil Rights movement has the ability to promote its agenda in the context of the nation’s historical traditions. Perhaps such a change in legal paradigms can ultimately instill in a generation of African-Americans, a deeper sense of pride and patriotism in a new generation of African Americans.