The Living Constitution, Post-Script: Plessy v. Ferguson Edition

A brief follow-up to my previous post about how no one really believes in the living constitution. Steve Calabresi liked to say, in the class I took with him about constitutional theory, that the first task of any good constitutional theory is to explain why Brown v. Board of Education is correct. Brown is in many ways the center-piece of the modern constitutional understanding and its relationship to society; any theory which views it as erroneous has, therefore, a fatal weakness. But I've often had the thought, especially when reading anything written by Bruce Ackerman but also when reading Jack Balkin's Living Originalism, that this is only half of the test. I don't just want a theory to tell me why Brown is correct. I want it to tell me why Plessy v. Ferguson was wrong. Now, that might sound like the same thing, since the one overturned the other. But I mean that I want a theory to tell my why Plessy has always been wrong, why it was wrong the day it was decided. Partly that's because I believe it was wrong the day it was decided. Partly that's because I think it's important that it was wrong the day it was decided. If we think Brown is right, and that it's important that it's right, which we do, I think it equally important to state clearly that the contrary result could never be the correct one under our Constitution. If Plessy was not really wrong the day it was decided, then the Fourteenth Amendment, which we think of as guaranteeing racial equality, does not really do so, because somehow Plessy was consistent with it, once upon a time.

So I found it very interesting when the article from which I drew the Newtonian-vs.-Darwinian imagery later described the holding of the Brown case thusly:

Not that Plessy v. Ferguson was wrong in 1896, the Court argued, but rather Plessy v. Ferguson had become erroneous because of what separate but equal had come to represent.

The Court, in other words, rejected my view. Plessy wasn't wrong at the time, but it became wrong, as the meaning of segregation changed or perhaps as we just grew to understand that meaning better.

But I actually think this is a perfect example of my point from my last post. Because, really? Do we really think anyone believed that? That Earl Warren did? That William Brennan did? That they thought the problem with Plessy was just that it had become outdated? I know that the architect of the Brown case, Thurgood Marshall, didn't think Plessy was correct. He was the leader of an organized movement that had been working to undermine and eventually overturn Plessy for more than half of the time between the two cases. Of course he thought Plessy had been wrong the day it was decided. Certainly my grandfather, who defended the Brown case on traditional legal grounds during the controversy it generated, though Plessy had been wrong, and obviously so. Do we really think that Warren, Brennan, Hugo Black, Felix Frankfurter thought that Louisiana's railroad segregation laws of the 1890s were constitutional? I don't think they did. I just don't buy it. I think they all thought that racial segregation was and had always been a denial of the equal protection of the laws.

But that isn't what they said. Instead they couched their opinion in the terms of a living constitution, for some reason. One way or another, they didn't want to condemn the past as strongly as their own opinions would condemn it. Which was arguably a mistake. After all, the living constitution idea, or at least what people usually mean by that phrase, really is a philosophically weak idea. It opens you up to the attack of people like Antonin Scalia and Herbert Weschler, who'll accuse you of judicially rewriting the Constitution. Better to just say, no, the ones who rewrote the Constitution were the Plessy Court, who struck out the Equal Protection Clause from the document. It might make the immediate firestorm worse, as those on the other side castigate you for repudiating their past, but in the long run I think it would lead to a more solid theoretical foundation for the new constitutional understanding.