This Essay seeks to apply some standard tools of constitutional theory to Brown v. Board of Education, and the history of the Reconstruction Amendments more generally, and thereby derive four principles of interest to Americans who are considering changing their Constitution. First, expect that judicial fidelity to framer-made norms will depend on (1) the conformity of the norm with the judge’s own view, (2) the felt importance of the issue, and (3) the clarity of the norm—the amount of wiggle room it leaves the judge. Second, framers are well-advised to put more faith in structural provisions like the two-Senators rule than in substantive provisions like the First Amendment. Third, rules beat standards. Finally, the success of entrenchment depends on the initial reasons for adopting constitutional provisions. This Essay applies these principles to the Federal Marriage Amendment and an amendment that would revise the continuity-of-government rules.
The Road Not Taken in Brown: Recognizing the Dual Harm of Segregation
In Brown v. Board of Education, the Supreme Court was required to define the harm derived from segregation per se. In so doing, the Court focused solely on the psychological harm that segregation inflicted on blacks. This rationale created the impression that desegregation was a social welfare program where whites were compelled to donate in-kind contributions to blacks in the form of interracial contact.
When the Court rendered its opinion in Brown, there was another open path before it. The brief filed with the Court by social scientists also noted that segregation harms the children of the majority group, albeit in different ways. Explicit recognition of the dual harm of segregation—harming blacks by subjecting them to a false message of their inferiority and harming whites by subjecting them to a false message of their superiority—is what is referred to as the road not taken in Brown. If segregation was understood as creating a dual harm, remedies for it would not be viewed as social welfare for blacks (and other minorities) but as benefitting all school children and all Americans.
Revisiting the Court’s opinion in Brown, this Essay marks out the road indicated but not taken. Viewing remedies for segregation as beneficial to all students might have been enough to alter the decisions by the Supreme Court that severely restricted school desegregation remedies. In addition, the recognition of the dual harm of segregation could have influenced the Supreme Court’s opinion upholding affirmative action in Grutter v Bollinger. Justice O’Connor’s reliance on the benefits of diversity for all students and for American society as the justifications for affirmative action is consistent with the recognition of the dual harm of segregation. But, implicit in her opinion is the recognition that underrepresented minorities are not as academically qualified as their white and Asian counterparts. Thus, lowering admissions standards means that the Court is again sanctioning a situation where whites (and now also Asians) are compelled to provide in-kind benefits in the form of lost places of admissions to the underrepresented minorities. Recognizing the dual harm of segregation makes it easy to see how this society’s reliance on standardized tests disseminates the same dual message of segregation: the intellectual inadequacies of blacks and other underrepresented groups and the intellectual superiority of non-Hispanic whites.
What Brown Teaches Us About Constitutional Theory
This Essay, written for the fiftieth anniversary of Brown v. Board of Education, explains the key lessons of Brown for constitutional theory. Ironically, Brown has comparatively little to teach us about which normative constitutional theory is best, because almost every contemporary normative constitutional theory takes the correctness of Brown as a starting point. Rather Brown’s key lessons concern positive constitutional theory—the study of how constitutional development and constitutional change occur over time.
Courts, and particularly the U.S. Supreme Court, tend, over time, to reflect the views of national political majorities and national political elites. Constitutional doctrine changes gradually in response to political mobilizations and countermobilizations; minority rights gain constitutional protection as minorities become sufficiently important players in national coalitions and can appeal to the interests, and values, and self-conception of majorities, but minority rights will gain protection only to the extent that they do not interfere too greatly with the developing interests of majorities.
Although Supreme Court decisionmaking tends to reflect these larger institutional influences, it is largely uninfluenced by normative constitutional theories about the proper way to interpret the Constitution. In fact, there is little reason to believe that the product of Supreme Court decisionmaking could regularly correspond to the outcome of any particular normative constitutional theory. This suggests that one important function of normative constitutional theory may not be giving advice to judges but rather offering professional legitimation for the work of the Supreme Court.