Wednesday, October 28, 2015

Canonical Case Skepticism and the Cartoon Version of Nonoriginalism

by Michael Dorf

One week ago, I posted a critique of a certain move that is sometimes made to defend originalism and other constitutional theories that produce the wrong result in Brown v. Board of Education. I argued that it is not sufficient that these theories allow for stare decisis because the "Brown test" is about what a theory produces rather than what it preserves. Prof. Larry Solum then offered some thoughts and posed some questions for me, which I answered on Monday. That same day, Prof. Solum added some additional thoughts based mostly on my first post on this subject. Meanwhile, Prof. Paul Horwitz raised questions about the canonical status of Brown and canonical status more broadly. Here I'll respond first to Horwitz and then pivot to Solum and a couple of others.

Although Horwitz agrees with just about everyone that Brown is rightly decided, he worries about the notion that it--or any case--is sacrosanct. His concern is that a practice that treats any case as sacrosanct forecloses radical alternatives. Voicing themes that sound partly in freedom of thought and expression, he writes that although he is happy to teach his students
something about what polite society demands of them, I don't want to preclude their rejection of polite society, or their individual interests in pushing the boundaries of what constitutes a polite society. Although overwhelmingly politically liberal, the legal academy is also highly conservative and anti-radical.  . . . I worry that [our] discussions are too much about making sure that the academy makes enough room for doctrinaire conservatives, or doctrinaire conservatives and doctrinaire libertarians, alongside doctrinaire liberals, and not enough about really widening the scope of our discussions. In the legal academy in particular, I worry that we don't make enough room for, let alone positively encourage, people whose views or approaches or priors are more genuinely radical. I wonder what conversations and possibilities we miss as a result. 
I agree wholeheartedly. Indeed, reading Horwitz I have come to regret that in my post last week I equated the notion of Brown being sacrosanct with what Steve Sachs describes as the possiblility that Brown is right "because Brown." That sounds like the rightness of Brown is stipulative, a given that cannot be challenged. I agree with Horwitz that we should not have such stipulations, such unchallengeable results. The fact that many people start with the settled conviction that Brown is right is not a sufficient reason for ending there.

Indeed, in my work on animal rights, I aim to unsettle settled convictions. Most people hold as settled convictions all sorts of propositions regarding non-human animals that I believe are simply false: Humans need animal-derived foods to live healthy, fulfilled lives; non-human animals lack the relevant capacities for moral consideration; rights necessarily rest on reciprocity; etc.  In arguing that these and other beliefs--no matter how strongly held--are false, I take for granted that a settled conviction can be rejected.

The same is true regarding settled convictions about sacrosanct cases like Brown. In my constitutional law class last week, I challenged my students' convictions about Brown with the argument of W. E. B. Du Bois in Does the Negro Need Separate Schools?.  If integration means that Black schoolchildren will learn from racist white teachers, is that really a step up? And--as we discuss in connection with Brown's legacy when studying the Parents Involved case--if we can't agree on what Brown means for our current circumstances, does it really matter that we all think that Brown was rightly decided?

So yes, by all means, do not end with the proposition that Brown is sacrosanct simply because you started there. If Brown is sacrosanct, that should be because its rightness remains a settled conviction even after it has been rigorously scrutinized. Not "because Brown" but because . . . well what, exactly?

I'll return to that question in a moment but first I want to make one point in response to Solum's Monday post. Recognizing that this barely scratches the surface of what he says, I'll leave fuller responses for others because I take Solum at his word that he is merely using my post as a point of departure for a broader discussion with a great many people within and outside of the originalist camp.

In my original post I stated that by contemporary standards even Ronald Dworkin was a semantic originalist. I had in mind such statements as the following (from page 10 of Dworkin's book, Freedom's Law): "We are governed by what our lawmakers said--by the principles they laid down--not by any information we might have about how they themselves would have interpreted those principles or applied them in concrete cases." Throughout Freedom's Law and other works, Dworkin distinguished between semantic intentions--which he thought binding--and other intentions--which he thought largely irrelevant to constitutional interpretation. For example, he repeats the point on page 118 in his response to Justice Scalia's lead essay in A Matter of Interpretation. Dworkin says there that he and Scalia agree on the difference between semantic intentions (they count) and other intentions (they don't), but then in the rest of his chapter Dworkin goes on to chide Scalia for relying on evidence based on those other intentions and departing from semantic originalism.

In his Monday post, Solum says that contemporaneous practices can shed light on original public meaning, not just on expected applications. I agree with the general point, but I also agree with Dworkin that there are instances of Scalia and other Justices and judges using examples of practices contemporaneous with a provision's adoption in ways that seem only to bear on expected applications rather than original public meaning, even as they profess original public meaning in their academic writings.

Solum also says Dworkin was not a semantic originalist because Dworkin would have allowed that in some circumstances precedent and practice may supersede text, and that idea is inconsistent with what Solum regards as one of the two fundamental commitments of originalism: the so-called Constraint Principle. I'm less sure that Dworkin's views fell outside of originalism than Solum is but, as Solum says, we can all be working with different definitions of originalism (or anything else). More to the present point, I don't think Dworkin's acceptance of precedent and practice as potentially overriding text are especially relevant to a discussion of Brown's sacrosanctity because, obviously, at the time it was decided, Brown could not have been based on precedent (Plessy was the most relevant one) or practice. Dworkin thought Brown was right because it was the best understanding of the original semantic meaning of equal protection, not despite the (non)fact that it contradicted that meaning.

Why did Dworkin think that? Why do I agree? Now we come to the question I temporarily forestalled: In virtue of what is Brown sacrosanct?

The answer, for me at least, is the answer that Charles Black gave in The Lawfulness of the Segregation Decisions:
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.  
So that's it. Brown is correct because Jim Crow was inconsistent with any plausible conception of "equal protection of the laws," regardless of what anyone might have thought in 1868. The reason Brown is sacrosanct is that any interpretive theory of a Constitution that contains an equal protection clause that doesn't produce Brown is immoral.

Piggybacking on a post by Asher Steinberg, Prof. Michael Ramsey asks whether I would think that Brown should come out as it did even if the Fourteenth Amendment had never been ratified. It's hard to know what I would think about that, because it would suppose a whole different history of the last century and a half, not just a single counterfactual at a particular time, but I can answer a better question that gets at the same thing: Is Bolling v. Sharpe correctly decided? After all, with respect to the federal government, the equal protection clause was never ratified.

I think Bolling was rightly decided but I don't think it is sacrosanct in the way that I think Brown is. Put differently, if a constitutional theory produced Brown but not Bolling, I don't think that theory would be out of bounds as monstrous in the way that I think that a theory that doesn't produce Brown--given the Constitution we have--is monstrous. Someone could plausibly say that although it is immoral that the Constitution imposes no equal protection constraint on the federal government, that is nonetheless the law. (Note that this would be complicated by language in Korematsu, which says that there is a kind of racial equality norm applicable to the federal government before Bolling, but I'm imagining that this person would have rejected that language too.)

Perhaps it will surprise Ramsey, Steinberg, or some other originalists that I think Bolling is right but not sacrosanct. If so, let me suggest that their surprise arises only because they entertain cartoonish ideas about what it means to reject originalism. Perhaps they imagine that we nonoriginalists think the Constitution mandates whatever the progressive wing of the Democratic Party favors as a matter of policy at any particular moment. That's a fantasy, however. Serious participants in constitutional theory who consider themselves either nonoriginalist or who can accept those versions of semantic originalism that allow for considerable value evolution at the level of construction or otherwise are not, ipso facto, natural lawyers all the way down. We recognize that there is space between the ideal Constitution we might want and the actual Constitution we have.

Postscript 1: Ramsey accuses me of thinking that originalism must mean old-school expectations originalism. ("Dorf seems still to be operating under an old-style 'original intent' originalism . . . .") Yet both of my prior posts in this thread, as well as just about everything I've written on the subject in the last 25 years (including my 2012 piece in the Harvard Law Review) carefully distinguish semantic originalism (and its variants) from expectations originalism. I honestly don't understand how Ramsey could have read either of my prior posts and come away thinking that I have been hibernating since the 1980s and have only now just awoken to take on Raoul Berger and Ed Meese, blissfully unaware of the changes in originalist thought since they propounded Originalism 1.0.

Postscript 2: As Prof. Jim Fleming has noted, originalism was originally conceived as an ideological program on the right, an "ism."  It still functions largely that way in the courts and in public debate. For that reason, more intellectually defensible versions of originalism have the effect of working as a kind of bait-and-switch that gives cover to the conservative judges and politicians who invoke "originalism" generically to say things like there can't be a constitutional right to same-sex marriage because nobody thought there was such a right in 1868. Solum (understandably) misunderstood me to be accusing semantic originalists of deception by participating in the bait-and-switch, but all I meant was that the old-style originalist judges and public officials who seize on the respectability given all originalism by the greater coherence of semantic originalism are acting in a way that, from the perspective of the average citizen, looks like a bait and switch. I did not mean to accuse any of the academic proponents of semantic originalism of bad faith.


Shag from Brookline said...

Brown was not sacrosanct immediately upon the decision being handed down. Perhaps someone might consider a paper listing chronologically the critiques of Brown by honored, renowned legal scholars and the political events challenging Brown, that might lead us to the point in time when Brown became sacrosanct. Such a paper could also include during such period works of legal scholars supporting Brown; as Mike notes, Charles Black did that quite well.

Mike has done a yeoman job of responding to critiques of his earlier posts. I incorporate here by reference my comments at these earlier posts.

By the way, several years ago I attended a "review/roast" of Dworkin's then new "Hedgehog" book at BU Law School's auditorium. I use the word "roast" advisedly. To Dworkin's great credit, he well parried critiques. During the Q & A, I made an attempt to get Dworkin to address originalism, which seemed to underlay some of the critiques. (I think this may have been just prior to the emerging of the New Originalism.) But Dworkin made it clear that he did not wish to get into that discussion at that time. Efforts have been made by some originalists in recent years to "fit" Dworkin as an originalist; alas, he was no longer with us to defend himself. Dworkin's words speak quite well even today.

Joe said...

I appreciate this serious discussion but continue to find all this debate about originalism on some level hard to take seriously. It at some point comes off as medieval scholasticism at its most obscure.

Regarding Bolling v. Sharpe, I recall something about it being self-evident that all men were created equal & that equality was a basic right in a just society. The idea that some core of equality is a basic substantive right protected by due process is basic to me too. If anything, an argument could have been made that state rights led education policy should be a state matter and states had various means of dealing with race issues. The national government had more of a duty to have integrated schools arguably.

Bolling cites a 1896 case; the section cited in part:

"Underlying all of those decisions is the principle that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race. All citizens are equal before the law. The guarantees of life, liberty and property are for all persons, within the jurisdiction of the United States, or of any State, without discrimination against any because of their race."

And, a deeper look at history shows this too. Equal protection as a general basic principle of liberty was cited repeatedly, it being a basic principle of Jeffersonian and Jackson democracy etc. The Constitution has multiple signs of this -- all religions are treated equally, no titles of nobility, rights given to "the people" or "persons," not specific classes of people, etc.

Finally, overall, treatment of blacks in an inferior fashion is a 'badge of slavery,' that even applied to private parties in certain cases can be a violation of the 13th Amendment. Before than, blacks were treated differently, of course, but the 13A changed that significantly. At least as to race, basic equality is clearly protected as to the federal government as well.

tjchiang said...

This has been a great series of posts, but I think we are now venturing into the territory where you are talking past each other. For example, I don't think Ramsey is misreading you but is instead contesting your metalinguistic argument. Your original post does distinguish between old-style original intent originalism and newer public meaning or semantic originalism. But the way you draw the distinction is that you don't want to call the latter "originalism." As I understood your bait-and-switch point, the only type of originalism that one should call "originalism" is the old-style intentions and expectations type. And Ramsey is contesting that labeling point.

In your original post, the reason you posit that originalism conflicts with Brown is because "most historians believe these arguments fail, at least if meant to tell us anything about the concrete intentions and expectations of the framers and ratifiers." That was a mode of argument premised on old-style original intent. That is what I read Ramsey to be reacting to.

For what it is worth, I share your bait-and-switch concern, and am sympathetic to your broader point. Many originalists in my experience will take Ramsey's position in the abstract--i.e. "it is not the job of constitutional theory to reach every popular outcome, or even every enormously morally important outcome, and so pointing to some bad outcome is a non-sequitur"--but at some level they don't seem to really believe it, in that their first reaction to the bloody shirt of Brown isn't to treat it as a non-sequitur argument but to cite McConnell (which implicitly acknowledges the canonical case argument has force).

Greg said...

I'm going to take the bait and make the contrary argument.

While I have no doubt that Brown was the right decision, was it truly so glaringly obvious as to be considered the only reasonable legal decision? If so, on what basis?

As best I understand, according to the facts on record in Brown specifically (not necessarily in the combined cases), schools in Topeka were equal in facilities, quality of education, etc. The only difference was the students who were allowed to attend them. I'm sure we probably all have suspicions about how actually equal they were, but that wasn't in the record.

If we assume the factual record says the Topeka schools really were "separate but equal," then on what grounds did the Court rule in Brown? One option is that they ruled based on the racial animus in enacting these laws, but the court tends to avoid striking down legitimate acts based purely on improper intent, and that's not how I read the decision. Another option is that it was based on what we would now call disparate impact. Was it simply that, despite being generally legal, racial segregation was having a disparate impact on the students? (Disparate impact was in the factual record.) Was the court ruling that there is something fundamentally wrong with schools that are segregated on any basis other than geography? Or, did the justices use facts not in the record to decide that racial segregation really isn't equal, even if the factual record says it is?

This isn't just an intellectual game, because if we're going to call Brown judicially sacrosanct, we have to understand WHY. It isn't enough for us all to look at it with modern eyes and see it as obviously the right decision, because our modern attitudes are partially a result of Brown. This becomes a form of begging the question.

If we do understand Brown, it can help us understand how to apply it to modern cases:
If it was decided based on animus, then it was a special case and doesn't tell us much.
If it was decided based on disparate impact, this means that disparate impact is enshrined in the 14th amendment, and should be applied to all cases implying a racial disparate impact, even if the laws don't specifically say so.
If it was decided based on the idea that segregation on any basis other than geography is wrong, then what does that mean for single-gender public schools?
If it was decided based on facts outside the record, does that significantly lower the quality of the decision, and raise questions about calling it sacrosanct?

The point is, it isn't meaningful to say that Brown is sacrosanct unless we can say what in the factual record is so special about it that there is no other reasonable legal ruling.

If there's nothing specific about the facts and the reasoning that make it sacrosanct, then we really are saying that it's right "because Brown." Just because it's the right decision, does that really make it the only reasonable legal one?

I think when we try to call Brown sacrosanct we may really be saying something completely different. What we're really saying is that any constitutional interpretation that doesn't consider all people, regardless of genetics, as equal fails in protecting what we really believe the constitution says on an emotional level. Brown has come to be the symbol of that view, but like most real cases, there was more to it than that. In considering it sacrosanct, we may blind ourselves to what may be fundamental problems with the case or how it was decided. Ultimately, analyzing those problems and weaknesses may tell us more about our judicial system than a stalwart view that it was the only reasonable legal decision.

Shag from Brookline said...

I'm mulling over Greg's comment but am concerned with his "regardless of genetics" in his closing paragraph. Perhaps this was gratuitous, but then again Greg may have had something specific in mind.

Joe said...

I assume Greg read Brown -- Warren went out of his way to write a simple opinion for the average reader, one that could be reprinted in the paper for the average citizen. At least, that was the intent.

The opinion cited a previous case involving a segregated law school with a "finding that a segregated law school for Negroes could not provide them equal educational opportunities," holding that "intangible" factors were involved such as "his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." Integrated facilities were necessary here, not isolation with the same books etc. or funding to go out of state.

Brown has a paragraph discussing the importance of public education for informed citizenship. More so than law, separating the races interfered there in the eyes of the justices in obtaining equal citizenship. The opinion could have went into this more but then raised still controversial psychological concerns -- segregation caused a feeling of inferiority that burdened the ability of black children to equally be educated.

This aspect of the opinion did not have much staying power, I think. Segregation as a whole was blocked -- on buses etc. -- and the Bolling v Sharpe holding that racial discrimination itself was suspect w/o such psychological concerns was more often used. A stronger argument -- the unanimity of Brown v. Bd. in part encouraged softening the blow -- against the evils of racism as a whole was used.

Thus, e.g., in Loving v. VA a ban on interracial marriage was struck down in part based on the fact that it clearly was based on ideas of racial supremacy. And, that is what John Harlan said in his Plessy dissent -- "everyone knows" segregation was motivated in large part based on racism against whites; it wasn't like men/women bathrooms, something largely in place truly to benefit both groups.

So, I think it is important to know "why" Brown is sacrosanct and it is more the result and some of the reasoning, not all of it. The "all deliberate speed" part, e.g., is debatable as is the usage of psychological evidence, some of which is looked at as overly primitive like the famous doll study.

Joe said...

ETA: The psychological evidence probably had some value and does show how the ruling was not simply concerned with race based policies. There is some concern not as much for animus but harm to the black school children. So, the ruling would not necessarily compel overturning race based affirmative action programs if the programs advanced overall education aims without illegally harming the people. This is of course a matter of dispute as to the facts.

Greg said...

Shag - "regardless of genetics" was an attempt to encompass a broad set of criteria (race, gender, sexuality*, etc.) that are all criteria on which there's fairly strong modern agreement that the government should not be discriminating. It's by no means an ideal metric, but it's just the one I chose. The point is that there are some criteria on which the government is allowed to discriminate, such as prior felony conviction or (to a lesser extent) current geographic location.
*-the "something I had in mind."

Joe - Rereading Brown (thank you for prompting this), I'm struck by a few things, some of which you point out.
1.) The opinion reads like it is primarily decided on the basis of stare decisis from McLaurin v. Oklahoma State Regents. If that's the case, then I would view Mr. Dorf's original point to be moot. If Brown was decided based on stare decisis, then stare decisis alone is not just enough to preserve Brown, but is enough to produce it. Hardly the stuff of a special sacrosanct case here.

2.) The opinion provides, as I remembered, more of a "disparate impact" kind of explanation, focusing on the psychological and civic consequences of segregating based on race, rather than its inherent illegality or inequality.

3.) There is almost no part of the opinion that justifies its key holding that "Separate educational facilities are inherently unequal." [emphasis mine.] They may produce unequal results if the separation is based on race in a way that reinforces existing stereotypes (#2), but this holding is a much stronger assertion, closer to preventing segregation on any basis other than geography.

There's some evidence that some of the above may be due to Warren's determination to produce a unanimous opinion, which may have diluted it substantially.

Based on the above, particularly #1 and #3, there really isn't anything in Brown that makes it significantly more special than the civil rights cases that came before or after it, and nothing that stands out to me as making it a good test of methods of constitutional interpretation. Indeed, the evidence suggests that the NAACP and other civil rights organizations wanted it that way, as they were intentionally building up a long string of cases that step by step took the justices toward legal equality.

Shag from Brookline said...

While I did not disclose it in my short comment on Greg's "regardless of genetics," my reaction to it was "code." Greg's response has not changed my view, especially in light of Joe's tutorial" comments on Greg's entire comment and Greg's response to them. My reaction brought to mind the views of Jefferson and of CJ Taney on Africans and their progeny pre-Reconstruction Amendments.

The word "sacrosanct" was not my choice. Rather, I have stated that currently very few directly challenge Brown. It seems that Greg is one of those few. Greg compresses much in the closing paragraph of his response to Joe. He refers to:

" ... and nothing that stands out to me as making it [Brown] a good test of methods of constitutional interpretation."

Originalism as we now know - or don't know - it had yet to be spawned as this was early in the days of the Warren Court that originalists and the Federalist Society subsequently objected to. It was many years later that some originalists felt obliged to comport Brown with originalism, as originalists (or most of them) were not prepared to directly challenge Brown, but "bring it home" to originalism.

I plan to comment further, but must prepare for today's liberal lunch (some progressives). But it is laughable that Greg thinks this:

" ... there really isn't anything in Brown that makes it significantly more special than the civil rights cases that came before or after it, ..."

And Greg's reference to:

"Indeed, the evidence suggests that the NAACP and other civil rights organizations wanted it that way, as they were intentionally building up a long string of cases that step by step took the justices toward legal equality."

covers many, many decades, with much frustration, disguising the extent of the long, hard battles to bring about some semblance of recognizing the Reconstruction Amendments.

I fear a neo-separate-but-equal movement. Apparently the changing demographics is having an impact, similar to the Tea Party movement.

Greg said...

There may be a neo-separate-but-equal movement, but if there is, I'm not a part of it. I'm terrified by the public all girl schools, as I fear these are an attempt to reinstate separate but equal, but with respect to gender rather than race. In my view, separate but equal never was, and never can be, in virtually any context.

Insofar as I'm challenging Brown on its face, I'm doing so more for rhetorical reasons than because I actually believe it was a bad decision (I don't.) I am challenging its use as a constitutional test case.

In actuality, insofar as I object to Brown as a constitutional test case, it's because I feel it doesn't say enough, especially in separating itself from the prior cases. WHY are separate facilities inherently unequal? Is this really a very narrow holding specific to race relations in the 1950s, or is this a dramatically more general one? If it is more general, what were the grounds for getting there, and can they be used for contexts outside education?

If Brown is a good constitutional test case because it actually didn't decide that much then that's fine, but I don't think that's the point that others are making by holding it up as such.

Shag ends up in many ways restating the very point I'm trying to make. History books tend to see the civil right cases as being Plessy and then out of nowhere came Brown. Reality is that there were decades of hard-fought battles, many of them likely as important as Brown itself. By taking Brown in isolation and holding it up as a constitutional test case, we mask the decades of hard work and related cases that got us there.

Joe said...

To reply once more to Greg.

There is a point where the law clearly changes as to stare decisis though in our system even this occurs usually by building off past cases. Brown noted this case was "different" in that it held that segregation was inherently equal in education. This was a big change. And, the application (without comment at first) to other contexts also was more than applying precedent. It clearly overturned Plessy in hindsight.

The opinion does hold that racial segregation in education is inherently unconstitutional. I'm not really sure about this disparate impact focus. It bluntly says "Separate educational facilities are inherently unequal." Bolling v. Sharpe is more clear that racial discrimination has no "legitimate purpose" and therefore going by the rules even fail rational basis review.

As to the justification that segregation is inherently unequal, it does reference precedent to show how separation interfered with equal education. This focuses on its "inequality" and this is true both in practice (if this is what is meant by "disparate impact") and in principle. The question than would be the breadth (is one sex schools okay? never truly a settled question if somewhat covered in U.S. v Virgina & never applied with this scope anyway).

Nor, are the reasons given limited to the "1950s" -- the problems with separation in accomplishing the goals of education in citizenship didn't change. The value of integration here helps the cause of affirmative action. The psychological concerns are somewhat more soft in a way (e.g., based on the research), but this still is a major concern in equality suits -- the feeling of inferiority issue also arose in same sex cases, especially in lower courts. And, the RESULT of both cases are fundamental in that the result was that race based segregation was wrong & Plessy was no longer good law.

This holds -- the basic principle that racial segregation in education is unconstitutional, the importance of education in forming a citizen and how the courts have power to interfere with states there (applied, e.g., to school prayer), the reach of court power (this alone makes it different than the law and graduate school cases in this field) and the seeds for future development (e.g., the case's principles were not limited to education) all make Brown special.

The NAACP also believed it a seminal case -- it was built up to since it was a great landmark case and to get that far had to be done in stages.

Greg said...

Joe - I think you're right to focus on Bolling v. Sharpe when discussing the more important decision. Bolling's finding that "Segregation in public education is not reasonably related to any proper governmental objective" is exactly the kind of distinct reasoning that I'm looking for but not finding in Brown.

While the practical consequences of Brown were far larger, Bolling provides a clearer picture of what the real problem is.

Brown took precedent that assigning seats in a law school based on race was inequality and decided that assigning different schools in public education based on race was also inequality. I'm not sure how to arrive at a different decision with that precedent, unless what's really unique about Brown was the willingness to apply the principles of equality to public education at all.

Bolling took much less clear precedent and provides the helpful direction that "Classifications based solely upon race must be scrutinized with particular care." Unfortunately, Mr. Dorf specifically precludes treating Bolling as sacrosanct, because he doesn't view the decision as inevitable.

It seems what we're looking for in a constitutional test case is a case that was both inevitable and has an interesting finding. It's not clear to me that such a case really exists.

Shag from Brookline said...

The law school separate but equal challenge preceding Brown did not impact that many as under the 14th A it applied only to state law schools. Many states back then did not have state law schools. In contrast, Brown involved public schools and the former slave states and some border states had segregated public schools. So Brown was a big deal (Landmark!) and recognized nationally as such and as evidenced by actions taken in these states with segregated public schools for decades, including the political aspects that survive today.

As to Bolling v. Sharpe, it was a companion case before the Court, both cases being delayed in 1952. The Bolling decision followed on the same day as Brown. While Brown addressed the 14th A and proscriptions against state action, Bolling was addressed via the 5th A proscribing federal actions. Here's an excerpt from Wikipedia on Bolling that will save a geezer like myself some time easing off from a nice lunch finished with a fine port:

"Bolling did not address school desegregation in the context of the Fourteenth Amendment's Equal Protection Clause, which applies only to the states, but held that school segregation was unconstitutional under the Due Process Clause of the Fifth Amendment to the United States Constitution. In Bolling, the Court observed that the Fifth Amendment to the United States Constitution lacked an Equal Protection Clause, as in the Fourteenth Amendment to the United States Constitution. The Court held, however, that the concepts of Equal Protection and Due Process are not mutually exclusive."

Imagine what might have been the outcry if Bolling had not been decided that way.

I apologize for using Wikipedia as a source. Hopefully Joe may follow up with greater detail than have I. After all, a glass of even fine port can only go so far.

It has been said that the decision in Dred Scott contributed to the happening of the Civil War. While Brown led to skirmishes, eventually there was a semblance of Brown's acceptance in varying degrees.

By the way, the decision in Brown may not have been perfect in addressing resolution of the basic decision. Jack Balkin and Sandy Levinson (and others) have written on what Brown coulda, shoulda said. But if Brown had said those things, would the decision have been unanimous and with a single opinion? And what might the reaction of impacted states have been? Court decisions are not perfect, especially in applications beyond the parties to a case or controversy. The Court does not issue advisory opinions. So we make progress on a case by case basis, two cases forward, one case back.

Joe said...
This comment has been removed by the author.
Joe said...

I covered Bolling v. Sharpe above. Here's a link:

Brown did the heavy lifting -- the "illegitimate" aspects are covered there, which again shown why it's an important case. Bolling was left to need to find a jurisdictional hook. It shows how precedent holds "liberty" has an equal protection component and racial discrimination was suspect. The only "less clear" part again was the application to this context, with Brown providing the heavy lifting.

Still an important case, but Bolling remains a more limited one in scope. As to applying precedent, again, the scope of the Brown opinion was much greater, not just to a limited number of blacks who go to higher education & the understanding that in that specialized level of education integration was necessary.

And, as Brown notes "expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education." Brown did not. It in a broad fashion, grades K-12, held segregation was unconstitutional in education. In hindsight, this might seem in today's world simply a logical simple extension, but it wasn't then.

I don't see where Prof. Dorf is looking for an "interesting" case or one that is "inevitable." I think he is using Brown because it in time was seen as fundamentally true and essential to justice even though by using various types of originalism it would be decided the other way. In fact, even those (even if you don't see any difference) accepted segregation in a law school is unconstitutional at the time -- including a few justices early in the process -- thought this too far. A more limited case or one less broadly held as true is a less obvious example.

There is no perfect case here and one case won't only be a poison pill to originalism but it's a useful example all the same.