Oh Good

I've written before that it's important to me that Plessy v. Ferguson be considered, not just to be wrong, but always to have been wrong. To have been wrong the day it was decided. Well, I was encouraged to see the following line in a Supreme Court opinion I was just reading for class:

"...we think Plessy was wrong the day it was decided..."

Yes! The Supreme Court agrees with me!

Okay, technically that wasn't a majority opinion, it was a plurality opinion. Specifically it's the plurality in Planned Parenthood v. Casey, in the section discussing stare decisis. They (it's Souter, Kennedy, and O'Connor, though one suspects that Souter, perhaps the world's biggest fan of stare decisis, wrote that section) discuss why the overruling of Plessy in Brown v. Board of Education was consistent with the theory they used to justify upholding Roe v. Wade, despite certain reservations as to its soundness. The word at the beginning of the sentence, which I didn't include above, was "while," and what follows is a version of the way people justify Brown in light of the "changing times" or whatever: however plausible they may or may not have been in 1896, the purported factual underpinnings of Plessy (that segregation was not a "badge of inferiority," etc.) were absurd by 1954, and this therefore justified reversing the case.

Still, I doubt that Souter, Kennedy, and O'Connor would say something like that if it weren't pretty much the consensus on the Court. And my sense is that the Supreme Court usually thinks of itself, when overturning a precedent, as explicitly repudiating the older case, declaring that its reasoning was faulty from the beginning. That, I think, is as it should be; though of course there will be times when genuinely changed circumstances command a different result over time, this will be rare compared to the times when a new majority simply recognizes that the old majority got it wrong. This is likely to be especially true in the constitutional context, where, in theory, the underlying law isn't changing except by Amendment. Well, that depends on whose theory, I guess; Bruce Ackerman would disagree with me in no uncertain terms there, which is after all the point of my whole "do you think Plessy was wrong when decided?" inquisition.

I'll close with a return to the reasons why I find theories, like Ackerman's, that seem to suggest that Plessy was right for its time or whatever truly offensive rather than just wrong as an intellectual matter. If Plessy was not wrong the day it was decided, then it's not quite right to say that the Equal Protection Clause of the United States Constitution forbids racial apartheid, because obviously if it prohibits racial apartheid then Plessy could never, ever have been even a little bit right. And so I find it more than a little comforting to see the Court, even a plurality of the Court, stating explicitly that Plessy was always wrong. That simple statement commits the Court, the guardian and expositor of our Constitution, to the view that it's not just some contextual happenstance that we don't allow racial segregation. It's a matter of eternal and unchanging principle.

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.

Don't Cite Harlan Against Affirmative Action

Opponents of racial affirmative action like to say that they favor an ideal of "colorblindness," i.e. the idea that the government should never ever be able to base its treatment of someone on a knowledge of their race. Affirmative action, the claim goes, violates this rule, which sounds very much like the very model of a rule against racial discrimination, every bit as much as Jim Crow laws did. Or, as Chief Justice John Roberts infamously put it, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." And as a kind of supporting precedent for that idea, either in an actual legal-precedent context or just as rhetorical support from a hero of the civil rights movement, people on that side of that issue like to cite the dissenting opinion of Supreme Court Justice John Marshall Harlan from Plessy v. Ferguson. Here are the passages that suggests a kind of color-blindness:

"In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights."

And:

"But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved."

And:

"They [the Reconstruction Amendments] declared, in legal effect, this court has further said, "that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States..."

And:

 "Our Constitution is color-blind, and neither knows nor tolerates classes among our citizens."

That last bit is perhaps the most commonly cited, especially just the first clause. It certainly does sound like it supports a color-blindness standard.

Enforced Commingling

Consider the following paragraph:

"The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinity, a mutual appreciation of each other's merits and a voluntary consent of individuals.

That is, of course, from the majority opinion in Plessy v. Ferguson, one of the worst Supreme Court decisions of all time. And I don't just mean "worst" in a moral sense; the decision is staggeringly wrong, in a purely legal sense. It assumes that the Fourteenth Amendment cannot mean what its plain text would clearly imply, because that thing is just too inconsistent with the prejudices of many but not all people in society. It claims that segregation only "stamps the colored race with a badge of inferiority" because colored people are so damn sensitive, which as Justice Hugo Black would later point out was always ridiculous to any of the actual white supremacists who were responsible for segregation laws in the first place.

And then there's this passage.