WHAT BROWN TAUGHT US ABOUT THE CONSTITUTION

In every way that matters, Brown is part of the Constitution. It has become a truism to say that any approach to constitutional interpretation, if it is to be taken seriously, has to be consistent with Brown. Today—and for several decades, now—to say that Brown is wrong is roughly like saying that some part of the text should be ignored.

Of course, just as people disagree about how various provisions of the text should be interpreted, they disagree about what Brown implies. The Brown opinion itself emphasized the importance of education, but it soon became clear that Brown had established the unconstitutionality of Jim Crow segregation and the associated forms of discrimination more generally. But what follows from that? Most conspicuously today, people disagree about whether Brown condemns or supports race-conscious actions favoring minorities. The terms of that disagreement, though, make the point: the arguments over affirmative action are mostly about how to interpret Brown.³ When Brown is in the picture, the “majestic generalities”⁴ of the document become secondary or even disappear entirely. Brown is the most important text.

Bolling v. Sharpe,⁵ the companion case to Brown, also demonstrates, maybe even more dramatically, how Supreme Court precedents can effectively become a part of the Constitution. Bolling declared that segregation in District of Columbia public schools was unconstitutional. The case presents a notorious puzzle: Brown relied on the Equal Protection Clause of the Fourteenth Amendment, which by its terms applies to the states, but the District of Columbia is not a state; it is part of the federal government. So what was the basis of Bolling?

The Court said that the Due Process Clause of the Fifth Amendment (which does apply to the federal government) justified its conclusion about D.C. schools. But as a verbal matter, that is a questionable claim, to say the least. The Due Process Clause says nothing about equality and permits deprivations of “liberty,” as long as they are accompanied by due process. Also, the Fourteenth Amendment includes a Due Process Clause, in addition to the Equal Protection Clause, so Bolling’s understanding of due process seems to make the Equal Protection Clause superfluous. Ordinarily that is a mistaken way to read a provision.

Earlier in the twentieth century, the Court had interpreted the Due Process Clause broadly, to invalidate regulatory measures that the Court thought were not adequately justified. That kind of aggressive reading of the Due Process Clause might have justified Bolling. But the Brown-era Court emphatically rejected that view of the Due Process Clause.⁶ And, of course, the Fifth Amendment was adopted at a time when race-based slavery was a central institution in much of the country, so at its adoption it could not possibly have been understood to prohibit racial segregation. By the same token, members of the generation that adopted the Fourteenth Amendment, having just fought a war in which the federal government defeated secessionist states, were unlikely to have carelessly referred only to “State[s]” in the Fourteenth Amendment when they meant to include the federal government too.

But as the Court said in Bolling, it would have been “unthinkable” to declare segregation unconstitutional in the rest of the United States and allow it to persist in the nation’s capital.⁷ That—the unthinkability of any other outcome, once Brown had been decided—was the actual basis of the decision; the text had to fit itself around that conclusion. Brown, not the text, dictated the result in Bolling.

If Bolling were just about racial segregation in Washington, D.C., schools, it might not have such great significance for our understanding of the Constitution. Bolling might have been justified by saying that the District of Columbia, while not actually a state according to the Constitution, is enough like a state so that at least some of the same principles should apply to it. Or Bolling might have been treated as an exception to the usual principles of constitutional interpretation because ending Jim Crow segregation was such an urgent national priority—making Bolling a kind of justifiable judicial civil disobedience.

Instead, Bolling took on a life of its own, detached from the District of Columbia and race discrimination as well as from the text of the Constitution. The Court has treated the Equal Protection Clause as if it applied to the actions of the federal government across the board. Without even a glance back at Bolling’s anomalies, the Court took the equal protection principles that apply to states and used them to declare unconstitutional federal laws that discriminated on the basis of sex; to consider claims that federal laws were irrational; and, with the critical support of justices who claimed to be committed to the text and the original meaning of the Constitution, to question the constitutionality of federal affirmative action measures.⁸ In its opinions, the Court referred to the “equal protection component”⁹ of the Fifth Amendment’s Due Process Clause, a clause that, of course, does not contain those words—a graphic illustration of how precedents become equivalent to provisions in the text.

When Brown was decided, apologists for segregation attacked it, of course. But a much more creditable criticism came from Herbert Wechsler, a Columbia law professor who actively opposed segregation: among other things, he had helped the advocates who prevailed in Brown.¹⁰ He also went on to represent the newspaper in New York Times v. Sullivan,¹¹ an important First Amendment case that was also about uprooting Jim Crow. In the same article in which Wechsler criticized Brown and other civil rights–era decisions, he said that those decisions “have the best chance of making an enduring contribution to the quality of our society.”¹²

Wechsler’s criticism was that there was no “basis in neutral principles” for the holdings in Brown.¹³ Some of what he said about Brown seems obtuse. Brown, according to Wechsler, never adequately rebutted the reasoning of Plessy v. Ferguson, the now-notorious case that permitted “separate but equal” segregation. Wechsler endorsed a passage in Plessy that has become one of the most infamous in constitutional law. He asked, rhetorically, “is there not a point in Plessy in the statement that if ‘enforced separation stamps the colored race with a badge of inferiority’ it is solely because its members choose ‘to put that construction upon it?’”¹⁴

But this unfortunate comment of Wechsler’s can be charitably interpreted to make a point worth considering, and one that aligns with the concern about principle. Plessy was wrong, and Brown is right, because the claim that segregation imposed a “badge of inferiority” was not just a subjective perception; that claim is, for constitutional purposes, simply, objectively, true. The question Wechsler implicitly raised is whether we can accept, as a matter of principle, that courts should make judgments of that kind about the intangible expressive effects of laws. It is not clear what equips judges to make those judgments—to act as if they were (a critic might say) social psychologists determining the social meaning of actions and institutions.

Opponents of affirmative action, for example, say that affirmative action actually constitutes discrimination against minorities because it announces that the beneficiaries are inferior, since they supposedly cannot succeed on the same terms as everyone else. When the Supreme Court held that there is a right to same-sex marriage, a dissenting opinion expressed concern that the decision stigmatized people whose religious beliefs condemn same-sex marriage.¹⁵ Or, if the basis of Brown is the principle that John Hart Ely suggested in response to Wechsler—“How about ‘No racial segregation, ever?’”¹⁶—would Brown necessarily dictate that racially segregated schools are unconstitutional even if a historically disadvantaged minority group insisted (today, in a nation different from what it was in 1954) that it preferred racially segregated schools? Or, at a further remove, what should a court say about the constitutionality of separate but equal sex-segregated public schools?

All of these examples might require judgments about the message conveyed by government actions. Wechsler’s criticism of Brown can be understood in that light: if courts can make determinations about Jim Crow segregation like the one the Brown Court had to make in order to reject Plessy, then, as a matter of principle, courts can make that kind of judgment whenever someone makes a similar argument about the message conveyed by some institution. It is not obvious when courts should do that, or how they should go about doing it, or if they are even qualified to do it. So, notwithstanding the problems with some of the things Wechsler said, it was, then and even now, not that easy to articulate a fully principled justification for Brown.

But the lesson from Brown is that we do not need a fully developed principle. Sometimes it is enough that we are confident in the specific judgment, even if we can see only the hazy outlines of a principle. That is why Wechsler’s argument, which is plausible in the abstract, was wrong about Brown. In Plessy, Justice Harlan, in his dissent, said that “[e]very one knows” that segregation was intended to make the statement that Black people are inferior.¹⁷ It was enough for the Brown Court to conclude that Justice Harlan was right about racial segregation in the Jim Crow South. To decide Brown, the Court did not need to define the limits of courts’ capacity to make judgments of that kind—what a fully worked-out, principled justification would have required. The Court might have to had to resolve borderline questions about those limits when a more difficult case presented itself, but that was not a reason to reject a conclusion about Brown that was obviously correct.

The demand for a principled justification tests the soundness and limits of one’s specific judgments. So courts (like the rest of us) should try to identify generalizable principles that support the specific judgments they make. Ideally the objective would be to achieve what John Rawls called “reflective equilibrium”: the state in which one’s judgments about specific instances are consistent with general principles that one can also accept.¹⁸ But there is no a priori requirement that specific judgments must always give way to the general principles, and, correspondingly, if one is not in reflective equilibrium—if a court cannot fully articulate a principle that justifies its conviction that a case should come out a certain way—that is not necessarily a reason to abandon that conviction. It may just mean that the principle is hard to articulate and will have to be hammered out over time. Brown proves the point. Especially in light of the stature that Brown has acquired, it would have been a terrible outcome for the Brown Court to have said that it had to follow Plessy because it could not come up with a fully satisfactory answer to Wechsler’s challenge.

Just as it is received wisdom that Brown is now unimpeachable, it is received wisdom—for the most part; there are important revisionist dissenters—that Brown is inconsistent with what is usually called “originalism.” There are several variants of originalism, but roughly speaking it is the view that the meaning of a constitutional provision is determined by the understandings that prevailed when the provision was adopted.

The reasons for the received wisdom about Brown and originalism have been stated many times.¹⁹ When the Fourteenth Amendment was adopted, even many northern states operated racially segregated schools, if they did not exclude Black children from public schools entirely. The Congress that voted for the Fourteenth Amendment continued segregation in the schools of the District of Columbia. When the Senate debated the Fourteenth Amendment, the spectator galleries were segregated on the basis of race. Everyone agrees that the Fourteenth Amendment was intended to establish the constitutionality of the Civil Rights Act of 1866, and the sponsors of that statute denied that they intended to interfere with school segregation.²⁰

The Brown Court’s own treatment of originalism actually tells us all we need to know. Brown was decided in 1954, but the Court first heard oral argument in Brown in 1952. Instead of deciding the case then, the Court issued an order scheduling the case for reargument. In that order, the Court asked the parties to brief a series of questions, several of which concerned the original understandings of the Fourteenth Amendment. In particular, the Court asked: “What evidence is there that the Congress which submitted and the State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in the public schools?”²¹

Within the Court, the Justices and their law clerks had already begun looking at the history of the Fourteenth Amendment.²² The Court’s order of course prompted research by the advocates and by academic historians. So, as the Court said in its opinion in Brown, by the time of the reargument, the historical materials had been covered “exhaustively.”²³

But after all that, the original understandings played essentially no role in the Brown opinion. The Court said that “although [the historical] sources cast some light, it is not enough to resolve the problem with which we are faced.”²⁴ “At best,” the Court said, the history was “inconclusive.”²⁵ In any event, the Court concluded, “[i]n 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.”²⁶

All of this amounted to an admission that the original understandings did not support the ruling the Court was about to issue. The justices knew that there would be vehement opposition to their decision. They knew that it would be attacked as lawless. If they could plausibly have claimed that the original understandings supported their conclusion that segregation is unconstitutional, they would have shouted that from the rooftops. They had all the resources they could want, inside and outside the Court, and every incentive to find a way to reach that conclusion. But they couldn’t.

The obvious implication of the Brown Court’s inability to find an originalist justification is that there isn’t one: Brown cannot be justified on originalist grounds. There is, as I said, a revisionist claim that the Court was mistaken on that point. The notable thing is that the revisionist claim is offered not as a way to justify Brown—Brown doesn’t need to be justified anymore—but in an attempt to rehabilitate originalism.²⁷ But even if that revisionist account is correct, it does not save originalism.

For one thing, the law developed in the way it did on the assumption that Brown was inconsistent with originalism. That was the Court’s assumption, and Brown became a “fixed star in our constitutional constellation”²⁸ (to borrow a phrase from another celebrated case) when the near-universal consensus was the same.²⁹ If Brown could be so successful not only without any help from originalism but in the face of what nearly everyone thought was its conflict with originalism, it is not clear why we should regard originalism as a plausible way to resolve constitutional issues. The revisionist accounts do shed light on history, and if Brown needed further support, the revisionist views would supply it. But those revisionist accounts do not vindicate originalism as an approach to constitutional law when originalism was—at best—irrelevant to the most important constitutional development of modern times.

In fact, if the revisionist accounts are accurate, they (ironically) undermine the case for originalism. If Brown is actually consistent with originalism, then the upshot is that originalism is so hard to apply correctly that even in the best possible conditions—with all the resources and incentives one could hope for—the Court was still not able to get to the right answer. Nor was anyone else for several decades. A viable approach to constitutional interpretation should not require that judges and others responsible for applying constitutional principles have extraordinary abilities. So even assuming that revisionists have finally come up with an originalist justification, the lesson, if there is one, is that originalism is too esoteric or unreliable as a method to be a plausible way to decide constitutional questions.

The most common originalist defense of Brown does not require extraordinary abilities, but it is also notoriously unsuccessful. This defense does not claim that the Fourteenth Amendment was understood to outlaw school segregation; instead, the argument is, the Fourteenth Amendment adopted a principle of racial equality, and the Court’s obligation today is to enforce that principle. If the Court concludes that (as Brown put it) segregation is inherently unequal, then segregation is inconsistent with the original understandings because it is inconsistent with that principle. Whether the people who adopted the amendment shared that view about school segregation—whether they thought school segregation was consistent with equality—is, on this account, beside the point; what matters is their general commitment to racial equality.

This version of originalism redefines the level of generality at which the original understandings are characterized. The relevant understanding becomes the understanding about racial equality generally, not about school segregation specifically. This kind of redefinition of the level of generality presents problems that are endemic with originalism. Once the question stops being specifically about segregation, there is no nonarbitrary basis for choosing a level of generality. Is the relevant original understanding (or, if not original understanding, whatever the originalist criterion is) about racial equality, or the equality of groups that have been subjected to discrimination that resembles racial discrimination, or equality in some still more general sense? Those more general characterizations might, for example, dictate that discrimination against LGBTQ+ individuals is unconstitutional. That’s a good outcome, many of us think, and it would be rhetorically advantageous to claim that it is an originalist outcome. But at that point it seems clear that originalism is not doing much useful work.³⁰

Brown was the centerpiece of a series of egalitarian Warren Court decisions. The reapportionment decisions establishing the principle of “one person, one vote” had remarkably far-reaching effects; they required every state in the nation to reform its central political institutions. The Warren Court gave increased protection to criminal defendants, to political dissidents, and to religious minorities. All of this prompted Archibald Cox, in his comment on those decisions, to say that the “idea of Equality is not easily cabined.”³¹

In fact, within a few years after the end of the Warren Court, many of its egalitarian decisions were quite effectively cabined by the Burger Court. But it seems reasonable to speculate that Brown, in addition to effects it had on the law and on race relations, changed the Court’s view of itself. The Brown Court had taken on a central problem in U.S. society, and it had done so at a time when the other branches of government were unable or unwilling to. There are ongoing disputes about how much Brown actually accomplished. But the successes of the civil rights movement as a whole helped establish Brown’s iconic status and reflected favorably back on the Court in a way that could only have made the Court more confident about its ability to address controversial issues.

The Warren Court’s egalitarianism was cabined by three Burger Court decisions in particular. In Milliken v. Bradley,³² the Court all but put an end to the kinds of school desegregation efforts that began with Brown. Milliken held that federal courts could not remedy segregation in a district that had engaged in discrimination by adopting a remedy that involved districts that had not discriminated (or, more precisely, that could not be shown in litigation to have discriminated). That meant that, for example, when the public school student population in a city that had discriminated became predominantly minority—which often happened—courts could not remedy that discrimination by requiring students from predominantly white suburbs to attend the urban schools, unless the suburban school districts had also discriminated. But it was often difficult to show that suburban districts had previously discriminated, in part because many were newly created. As a result, after Milliken, most large-scale court-ordered desegregation came to a standstill.

In Washington v. Davis,³³ the Court held that the Constitution forbids only intentional discrimination; even if a government action disproportionately harms minority groups, that is not enough to make it unconstitutional (or even to require some especially good justification). Some important cases following Brown had seemed to suggest that government action that perpetuated segregation or disadvantaged minority groups could be unconstitutional for that reason, irrespective of intent—a potentially very far-reaching principle³⁴—but Washington v. Davis rejected that position. Finally, San Antonio Independent School District v. Rodriguez³⁵ upheld the constitutionality of state laws that funded public education from local property taxes. That practice had been attacked because it created large disparities in funding between districts that contained a lot of valuable property and those that did not. Rodriguez was not explicitly about race, but near the end of its tenure the Warren Court had begun to turn its attention from race to economic inequality.³⁶Rodriguez, along with other Burger Court decisions from the same time, put an end to those tentative efforts.

But the Burger Court did not put an end to the Court’s willingness to address controversial political issues. That has continued for the last half century in a variety of contexts and shows no signs of abating. Roe v. Wade³⁷ was an early example, and there have been many since, in many contexts: affirmative action,³⁸ campaign finance reform,³⁹ claims of religious free exercise,⁴⁰ gun rights,⁴¹ constitutional limits on federal regulatory agencies.⁴² In Bush v. Gore,⁴³ the Court effectively decided a presidential election on a basis that, the Court more or less acknowledged, it had made up for the occasion.

Of course it is impossible to say for sure whether these decisions were the product of the Court’s having been emboldened by the prestige that Brown conferred on it. But it does seem likely that Brown had some effect, especially if Brown, and its transformation into an icon during and after the civil rights era, is considered together with what came before. In the first third of the twentieth century, the Court was also confident and aggressive—too confident and aggressive for its own good. It invalidated a number of social welfare and regulatory measures enacted by the states and by Congress. When the Court threatened President Franklin Roosevelt’s New Deal, Roosevelt responded by trying to “pack” the Court—to persuade Congress to increase its size (which Congress has the power to do) so that Roosevelt could appoint enough new justices to create a majority that would uphold New Deal programs.⁴⁴ The court-packing effort failed, but the Court changed course and began upholding state and federal regulatory and social-welfare laws.

The Justices of the Court that decided Brown not only had lived through the New Deal–era conflicts about the Court’s role but, in some instances, were intimately involved in Roosevelt’s efforts. The lesson that they took away—like many other members of their generation of lawyers—was that the Court undermined its own legitimacy when it defied popular opinion. They believed they were taking that risk when they decided Brown. Against that background, the near-universal celebration of Brown, when it eventually happened, made the post–New Deal caution seem unnecessary, or at least overstated. The Court’s legitimacy not only survived Brown; it was enhanced.

The extent to which the afterglow of Brown led to Roe v. Wade, Bush v. Gore, and the more recent decisions overturning federal and state laws is, of course, a matter of speculation. And it does not follow that all those decisions were wrong; Roe, for example, if understood as a decision that protected the rights of women, a group that has historically been discriminated against, was in that sense faithful to the principles of Brown.

Most of those decisions do not protect vulnerable groups, though, and the Court continues to invoke Brown when it does something that it knows will be controversial.⁴⁵ So it seems plausible to think that an indirect effect of Brown has been to cause the Court to assert its power more aggressively than it otherwise would. And—as the affirmative action cases illustrate—perhaps in ways that are inconsistent with Brown’s most important lesson: the imperative of overcoming racial discrimination and its effects in American life.