America's Unwritten Constitution: The Precedents and Principles We Live By (25 page)

With defenders like this, who needs detractors? Even if the Warren Court justices were indeed smarter and fairer than everyone else—a doubtful
proposition—these men in robes swore oaths to uphold the Constitution, and their opinions purported to apply, not amend, that document. Let us, then, review the work of the Warren Court and measure it against the words of the written Constitution.

PERHAPS THE MOST ICONIC MOMENT
in twentieth-century American judicial history occurred on May 17, 1954, when the Court held that racial segregation in public schools was per se unconstitutional.
Brown v. Board of Education
famously ruled against state and local regimes of race separation, and a companion case,
Bolling v. Sharpe
, proclaimed that the same antisegregation principles applied to the federal government. In a widening circle of later rulings that made clear that the justices were completely repudiating the “separate but equal” doctrine underlying the 1896 case of
Plessy v. Ferguson
, the Warren Court held that apartheid had to end not just in public schools but in virtually every domain where Jim Crow laws had prevented whites and blacks from intermingling—at state beaches, on public golf courses, inside buses, and even within the bonds of matrimony.
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These companion rulings had deep constitutional roots. Jim Crow aimed to create two hereditary classes of Americans, with whites on top and blacks on the bottom. This racial class system was a throwback to aristocracy, assigning Americans unequal and intergenerationally entrenched legal slots on the basis of birth status. Such a regime was hard to square with the democratic social structure expressed and implied by the Philadelphia Constitution. Beyond the Preamble and the Article IV republican-government clause, the bans on federal and state titles of nobility in Article I explicitly condemned the trappings of aristocracy: “No Title of Nobility shall be granted by the United States” and “[n]o state shall…grant any Title of Nobility.” Under the letter and spirit of these clauses, which promised a democratic republic and renounced a feudalism based on birth and blood, no American government could properly name some Americans “lords” and others “commoners.” But in effect that was precisely what Jim Crow circa 1954 aimed to do, perpetuating a hereditary overclass of fair-skinned lords atop a hereditary underclass of dark-skinned commoners.

Alongside the antinobility clauses, another pair of Article I provisions
prohibited both the state and federal governments from enacting “Bill[s] of Attainder”—statutes that singled out persons by name and pronounced them guilty of capital offenses. Beneath this specific rule ran a deeper and wider principle that forbade government from stigmatizing persons because of who they were (their status) as opposed to what they did (their conduct). When read generously, with idealistic attention to both letter and spirit, the original Constitution thus seemed to condemn a legalized racial hierarchy.
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However, this idealistic reading did not prevail in the early republic. Arrayed against this grand vision were antebellum arguments that on racial-equality issues, the Constitution had to be understood as a compromising and compromised document. Strong constitutional protections of chattel slavery were tightly woven into both the fabric of the document—most enduringly in the three-fifths clause, giving slaveholders extra political clout in both Congress and the electoral college—and the fabric of everyday life in antebellum America. In the old South there was in fact a legal structure of lordship and serfdom despite the antinobility clauses. Nor were these clauses unique in not meaning what they seemed to say. Slavery contradicted a huge part of the original Constitution, if the words of that document were read idealistically. For example, despite the Bill of Rights, slaves had no entitlements to worship, assemble, speak, bear weapons, or marry—indeed, no right even to eat and sleep as they pleased. In effect, each slave was sentenced to life imprisonment at birth without any ordinary due process in the form of an individualized adjudication of wrongdoing.
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Candid antebellum interpreters resolved the original Constitution’s seeming contradictions by conceding that slaves were simply not part of “We the People” at the Founding. Rather, slaves were akin to enemy aliens, and America’s Constitution aimed to protect Americans first and foremost. If protections for the American people meant privations for other peoples—whether the British, the Spanish, the French, the Mohawks, or the slaves—then so be it.

Free
blacks, however, were a different story. Many had borne arms for America in the Revolution and had even voted on the Constitution itself. Thus, free blacks in antebellum America could plausibly claim all the Constitution’s
guarantees—or, more modestly, could claim these guarantees in any state that recognized their formal citizenship. Alas, the antebellum Supreme Court saw things differently. Chief Justice Taney’s 1857 opinion in
Dred Scott
went so far as to proclaim that a free black descended from slaves could never be a citizen even if his home state said otherwise. Taney’s was a twisted and ultimately temporary reading of the document. In the wake of the Civil War, America adopted a trio of amendments reaffirming the most idealistic elements of the Philadelphia Constitution and renouncing the original text’s original sin.

The Thirteenth Amendment abolished slavery and empowered Congress to pass sweeping anti-caste legislation, a mission Congress immediately began to fulfill. The Fourteenth and Fifteenth Amendments made clear that the republic was being refounded on principles of free and equal citizenship. Pointedly repudiating Taney, the first sentence of the Fourteenth Amendment declared the birthright citizenship of all persons born in America, black and white alike: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Notably, this clause governed the federal government as well as the states. In the next sentence, the word “equal” explicitly appeared, promising that all persons would receive “equal protection of the laws.” Finally, the Fifteenth Amendment threw voting booths open, inviting blacks to participate equally with whites in the grand project of American democracy. With this trio of amendments proclaiming a new birth of freedom, the key contradictions and compromises of the Founders’ Constitution melted away. No longer was it necessary or proper to read the Preamble and the other anti-aristocracy and anti-attainder clauses in a stingy way.

In light of all these constitutional clauses, all these structural considerations, and all this historical evidence,
Brown
and
Bolling
were not just correct but
clearly
correct. These iconic cases vindicated the central meaning of the Reconstruction Amendments. Jim Crow laws were not truly equal. American apartheid created a subordinated caste in violation of the vision of the Thirteenth Amendment and its early implementing legislation; perpetuated two unequal classes of citizens in defiance of the logic of the Fourteenth Amendment’s first sentence; deprived blacks of the
genuinely equal laws commanded by the Fourteenth Amendment’s next sentence (and by the companion Fifth Amendment); and kept blacks and whites apart in a manner that renounced the premise and promise of the Fifteenth Amendment that Americans of different races would come together—at polling places, in legislatures, on juries—as democratic equals.
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LEADING CRITICS (AND SOME FRIENDS)
of the Warren Court have raised two counterarguments based on the alleged original intent of the Reconstruction Amendments. First, while the Fourteenth Amendment was pending, many congressional supporters emphatically stated that it would not prohibit segregation. Second, although the Reconstruction Congress never explicitly enacted legal segregation, it did continue to fund the preexisting segregated schools in the nation’s capital, and it even allowed its own public galleries in the Capitol building to be racially segregated.

Practices put in place as the ink on a newly ratified constitutional clause is still drying may properly help resolve textual ambiguities. But post-enactment practices cannot trump the central meaning of a constitutional provision as that provision was plainly understood by the public at the moment of its enactment. When the Fourteenth Amendment was adopted, Americans undeniably understood that one of its central purposes was to end all “Black Codes”—laws that withheld from blacks the ordinary civil rights enjoyed by whites. Virtually all the amendment’s supporters agreed that it would prohibit any law that enforced white supremacy in the domain of civil rights.

For example, had any legislature in 1869 enacted a candid statute entitled “An Act to Put Blacks in Their Proper Place at the Bottom of Society,” or “An Act to Demean and Degrade Negroes,” or “An Act to Deny the Equal Citizenship and Civil Equality of Non-Whites,” such a statute would have plainly violated the core meaning of the Fourteenth Amendment as understood by those who framed and ratified it in 1866–1868. The only question in 1954 was whether Jim Crow was legally equivalent to these hypothesized laws—equivalent in purpose, equivalent in effect, and equivalent in social meaning. True, Jim Crow laws, with a sly wink, purported to be “equal” and did not declare their true social meaning with the candor
of our hypothetical statutes. But by 1954, honest observers understood that the “equal” part of “separate but equal” was a sham. The whole point of Jim Crow was inequality, and everyone knew it.
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How, then, are we to account for the fact that the Reconstruction Congress itself failed to end segregation and instead ended up perpetuating segregation in certain respects?

Actually, many Fourteenth Amendment supporters opposed racial segregation. One of the amendment’s chief architects, House leader Thaddeus Stevens, established an interracial orphanage upon his death and chose to be buried alongside African Americans in an integrated graveyard. He composed his own tombstone inscription:

       
I repose in this quiet and secluded spot

       
Not from any natural preference for solitude.

       
But, finding other cemeteries limited as to race

       
by charter rules,

       
I have chosen this that I might illustrate

       
in my death

       
The principles which I advocated

       
Through a long life

       
EQUALITY OF MAN BEFORE HIS CREATOR.

Stevens went to his final resting place in August 1868, less than a month after the Fourteenth Amendment became the supreme law of the land.
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While Stevens ranked among the most radical of Republicans on racial issues, many other Republicans were also high-minded opponents of legally imposed segregation. But some Republicans were considerably less zealous, and most Democrats refused to support an all-out crusade against segregation. In the end, faithful constitutional interpreters must investigate not merely how many segregationists existed in 1866–1868 but also what they said and did and whether their words and deeds plausibly glossed the Fourteenth Amendment. In short, we must probe how the unwritten Constitution of the mid-1860s interacted with the written Constitution itself. The question is not just whether Representative X or Senator Y supported segregation in 1867 or 1869, but how he read the Constitution’s
words—how he reconciled segregationism with the Constitution’s express commands.

Ultimately, nothing in what segregationists actually said or did provides good grounds for revising our initial understanding of the Fourteenth Amendment’s central meaning. The text calls for equal protection and equal citizenship, period. There is no textual exception for segregation, no clause that says “segregation is permissible even if unequal.” Nor did most 1860s segregationists who supported the amendment argue that there was such a categorical exception. Instead, they offered up a medley of legal and factual assertions, some plausible and others less so.
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Many merely argued that separation was not intrinsically unequal. As a matter of logic, they were right. It is logically possible to imagine forms of separation that are not unequal. For example, separate bathrooms for men and women today are not widely understood, by either men or women, as stigmatizing or subordinating. But in some places and at some times, separate bathrooms might indeed be a way of keeping women down. In Jim Crow America, racially separate train cars, bus seats, schools, bathrooms, drinking fountains, and the like were engines of inequality in purpose, effect, and social meaning. They were ways of keeping blacks down, creating a pervasive legal system of untouchability and uncleanness that violated the basic equality ideal constitutionalized by the Fourteenth Amendment.

Put differently, this first segregationist argument accepted the correct legal meaning of the Fourteenth Amendment and simply posited that as a matter of fact—not law—separate could and would be equal in the Capitol galleries and elsewhere. Whether or not this fact was true in 1868, it hardly answered the question in 1896 or 1954. Surely the Court was entitled to draw its own factual conclusions about whether separate was actually equal. Although the
Brown
Court overstated when it proclaimed that in the field of education separate was
inherently
unequal, the Court surely could properly say, with the benefit of history, that Jim Crow in America was
inevitably
unequal.
Brown
came at the end of a decades-long string of cases in which black plaintiffs challenging regimes that claimed to be “separate but equal” had been obliged to bear the expense of proving actual inequality case by case—a string of cases in which inequality was indeed invariably found by the judiciary when it looked closely. In light of this
experience, the
Brown
Court sensibly shifted the burden of proof to segregationist governments in all future Jim Crow cases. Henceforth, governments would need to offer compelling evidence that racial separation was indeed equal in purpose, effect, and social meaning.
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