Tuesday, December 05, 2006

Roberts and the problematic legacy of Brown

Sherry Colb’s discussion of the Integration Cases and Robert’s use of Brown provides opportunity for me to throw out one of the things that I’ve been exploring recently: which is how the common law doctrine of precedent distorts our understanding of constitutional history, and the lessons we might draw from that history (an idea first articulated by Frederic Maitland in his inaugural lecture as professor of English legal history at Cambridge in 1880) (no, I wasn’t there).

The common law doctrine of precedent effectively requires us to conflate constitutional development with formal judicial decisionmaking. And, I believe, this prevents us from learning as much as we can from our constitutional history, and its true constitutional meaning. To my mind, one of the paradigmatic examples of how the common law’s use of precedent can prevent effective constitutional understanding is Brown. Brown is, it doesn’t need to be said, a iconic case. It is the case, we are told, that transformed the constitution by wiping out the separate-but-equal doctrine, and replacing it with a new, post-apartheid constitutional order in the form of the anti-discrimination principle.

The problem is, this isn’t true. The separate-but-equal doctrine was already largely discredited, juridically and socially (at least in the North), by the time Brown was issued. Brown expressly did not overturn Plessy, and it certainly did not articulate a successor constitutional test. Perhaps most problematic, Brown and its succeeding line of cases had no actual impact on American segregation. In fact, American society actually became increasingly more segregated after Brown was decided

The growing segregation of American society would not reverse until Congress passed the Civil Rights Act of 1964. In this sense, it was the Civil Rights Act of 1964 that really overturned Plessy. And, I would argue we should therefore be looking first-and-foremost to that Act, not than Brown, in our continuing efforts to conceptualize, construct, or even just celebrate our still very-much-up-in-the-air, post-Plessy constitutional order. Certainly, at the very least, the 1964 Act provides a much more robust description of what that order might look like than anything found in Brown.

But we can’t do that, because the doctrine of precedents causes the common-law mind to look more or less exclusively at judicial decisions for defining constitutional doctrine, and thus for defining changes in the constitutional order (a point I also made earlier in critiquing Ackerman’s particular notion of constitutional moments). The real reason we worship Brown, I suspect, is because Brown is the last, full judicial opinion on the constitutional meaning of race to issue prior to the flowering of the civil rights movement. This causes us to attribute the civil rights movement, and it transformative vision of race, to Brown, when in fact, Brown was – I would at least be willing to propose – really epi-phenomenal to this movement. In short, the reason why Robert’s vision of both Brown and the lessons of constitutional history are so simplistic is that this is precisely the view of constitutional and legal development that the common law foists upon us.

10 comments:

Caleb said...

Is it fair to blame the system though? I suspect (and I could be far off in this) that the Court that faced Brown would be quite willing to find the type of race-based choices that the Court today is pronouncing on constitutional. In a sense then, the problem is not Brown, but what it has come to stand for. In which case, two interesting questions follow; why courts looked to Brown rather than the Civil Rights Act for precedent? And why they chose to construe Brown in the way they did? I would imagine (and again, I could be far off in this) that the answer to both of these questions has more to do with what philosophy members of the judiciary have brought to answering these tough questions than to the constraints that the precedential system has imposed on them.

Anonymous said...

Why are these cases referred to as the "Integration Cases"?

Why do we assume that these school districts are using race to promote "integration," rather than engaging in rigid, unthinking racial quotas?

The Seattle Schools aren't interested in integration or promoting a melting pot.

In fact, the Seattle Schools publicly denounce "concepts such as a melting pot" on their web site, calling them a failure.

They have treated students as members of competing racial groups rather than individuals, claiming that "individualism" is a form of "cultural racism."

They have also engaged in offensive racial stereotyping, claiming that planning ahead ("future time orientation") is a white characteristic that it is racist to expect minorities to exhibit.

The above bizarre, racially inflammatory statements by the Seattle Schools have been reported in newspapers such as the Rocky Mountain News and the Seattle Post-Intelligencer.

They also have been discussed in a December 3 editorial by George Will in the Washington Post. Will points out that it makes little sense to give special deference to the Seattle School District's judgment on racial matters -- as the Ninth Circuit did in upholding its race-based student assignments -- when the School District's judgment seems so poor.

Moreover, the Seattle Schools are diverse even without using race, and no court has ever held them to be segregated.

Thus, there isn't any "integration" rationale here for using race.

The Seattle Schools are using to race to promote racial stereotypes.

Adam P. said...

Hans is wrong. A) I don't know what stereotypes you're claiming Seattle is promoting. Kids have better outcomes in racially diverse schools. B) The goal ranges are hardly "rigid quotas."

And a rejection of "melting pot" is not a rejection of diversity- Canada has long rejected the idea of a melting pot in favor of multiculturalism. But integration sadly is still about removing the badges of inferiority of slavery. African-Americans are still damaged by slavery and the continued subordination in this country since then. The residential segregation that persists can be traced to the norms of the early 19th c., and the disparities in socioeconomic status are most definitely still tied to illegal segregation in the 20th century.

I question why this wasnt brought up in the cases yesterday, as a kind of Section 5 claim. As Justice O'Connor pointed out in the Michigan cases, there may come a time when students of different races stand on equal footing, but we have not reached that time.

Michael W. Dowdle said...

Responding to Caleb: I don't think that philosophy is really at issue, because the deification of Brown occurs on both the left and the right. Similarly, I have never seen anyone, left of right, try to use the Civil Rights Act as a jurisprudential substitute for Brown. So I think it is systemic, or more precisely, epistemic.

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