In my most recent response to Paul Craig Roberts, I took him to task for faulting Brown as “government by judges” but stating that he agreed with Justice Harlan’s Plessy v. Ferguson dissent, which would have accomplished much the same thing. Dr. Roberts replied as follows:
Dear Mr. Volokh: The answer is simple: Justice Harlan’s position was based on the 14th Amendment. The Brown decision was NOT based on the 14th amendment. Amazing that I have to point this out to a law professor!!!
I then e-mailed Dr. Roberts the following:
Hmm; the Brown Court described the case as involving the allegation that segregation “deprive[d] the plaintiffs of the equal protection of the laws under the Fourteenth Amendment,” mentioned the Fourteenth Amendment several times during its opinion, and ultimately held “that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. What exactly do you mean then by “The Brown decision was NOT based on the 14th amendment”?
Dr. Roberts then sent the following:
Dear Mr. Volokh: You are obviously unfamiliar with the case. You could read the case. You could read my account with Stratton in The New Color Line, or you could read a number of other accounts. Harvey Silverglate, a noted civil libertarian, for example, believes that Brown could have been argued as a 14th amendment case, although he understands that it was not.
In my own opinion, your opinions on these issues outrun your knowledge.
I recommend that you read the New Color Line. Brown was not argued as a 14th amendment case, because the Justices and Ellman in the DOJ, all of whom wanted to get rid of segregation, were convinced that it could not be done on the basis of the 14th amendment. You can read their own words. This is generally known, not some claim unique to me. What I have noticed among the younger generation of professors is PC opinions that do not rest on knowledge. That is your problem with the Brown case. I am sorry to be rude, but I do think your insinuations that I am some kind of nazi for speaking truth to myth are worse than rude. My criticisms of Brown have nothing whatsoever to do with segregation. They have to do with precisely what my column states: the substitution of coercion for persuasion and the denial that good will is an effective basis for reform. The result today is status-based legal rights, which you conflate with social conventions.
Well, I’ve already spoken to how “substitution of coercion for persuasion” applies equally to the Plessy dissent — which would have coercively dismantled segregation just as Brown did — and how “status-based legal rights” have existed in the U.S. since the founding of the nation, and are hardly the “result” of Brown. But since Dr. Roberts’ most recent points seem focused on whether Brown (which, as it happens, I have indeed read) is “based on the Fourteenth Amendment,” I quote Brown:
In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. . . .
The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that hence they are deprived of the equal protection of the laws. . . .
Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.
An additional reason for the inconclusive nature of the Amendment’s history, with respect to segregated schools, is the status of public education at that time. In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.
In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of “separate but equal” did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. . . .
In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. . . .
We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. . . .
We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term. [footnote:] “4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment “(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or “(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions? . . . [end footnote] . . .
“The Brown decision was NOT based on the 14th amendment” — accurate or not? You decide.
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