About That “Color-Blind Constitution”

Alan Dershowitz struggles mightily yesterday in the Wall Street Journal to persuade us that Earl Warren would have been wholly in favor of the Harvard/UNC decision banning admissions by race based on the equal protection clause of the 14th Amendment. As much as we may welcome Dershowitz’s continuing defection from the left, this article is not persuasive. To the contrary, the mistakes of the Warren Court contributed significantly to the perverted mess of civil rights jurisprudence over the last 50 years that required bringing the difficult and protracted Harvard/UNC case in the first place.

Two bold propositions before an explanation. First, Brown vs. Board of Education did not directly overturn Plessy v. Ferguson‘s “separate but equal doctrine,” at least not on 14th Amendment grounds. Everyone thinks it did, but this is one of the great judicial sleight-of-hand acts in our history, which not even the clear language of the 1964 Civil Rights Act was able to clarify. This means, second, that the original, non-discriminatory understanding of the 14th Amendment wasn’t finally vindicated until two weeks ago, most especially in Clarence Thomas’s concurrence.

Let’s start with a second, closer look at Brown. Here is the fourth paragraph in its entirety (with my emphasis in bold):

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.

Let this paragraph sink in a bit. What it really says is, “Gosh, just what were the intentions of the 14th Amendment is quite beyond the capacity of modern day jurists. We just can’t figure it out! So we’ll have to decide the case on other grounds.” Sure enough, after more throat clearing about the mystery of the equal protection clause of the 14th Amendment, Chief Justice Warren declares: “We must look instead to the effect of segregation itself on public education.” It was on this basis that Warren invoked dubious social science findings to conclude that segregated schools generated a feeling of inferiority among black students, and hence that “separate but equal” could never be achieved. Key section:

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected. We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate education facilities are inherently unequal.

Notice that Warren doesn’t say that separate but equal is unconstitutional because racial classifications are themselves unconstitutional. It is significant that the decision is limited carefully to public education. It left untouched the possibility that racial classifications might remain constitutional in other domains, i.e., affirmative action in employment and college admissions.  Keep in mind that the Plessy Court concluded that if blacks had a sense of inferiority because of segregation, well, that was on them. The point is, Warren’s famous decision did not embrace or vindicate Harlan’s famous dissent in Plessy that our Constitution is color blind, and in fact you’ll find leftist justices from Brennan to Brown Jackson today repudiating Harlan’s Plessy dissent. This was not an accident. I believe Warren and his unanimous colleagues on the Court did not want to reach the fundamental question of racial classification under the 14th Amendment because the left wanted to keep open the kind of race-conscious policy regime we’ve seen ever since, but now hopefully put in the course of ultimate extinction by the Harvard/UNC decision.

It is possible that Dershowitz may be right about Warren, but only if Warren was simply clueless about the blunder he was committing. Dershowitz points to Warren’s desire to overturn Virginia’s ban interracial marriage that finally came about in the famous case of Loving v. Virginia. Actually this case, once again read carefully, shows Warren’s confusion persisting, as its reasoning is just as big a muddle as Brown. Let’s start with the astonishing first sentence of Warren’s opinion in Loving:

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Stop right there: “a constitutional question never addressed by this court”?? Although he is trying to narrow the issue to marriage, that fact that the law in question rests “on the basis of racial classification” had come up lots of times. Like—duh—Plessy, Brown, and all their progeny. Can Warren seriously mean, “Gosh, we’ve never had a case involving racial classification before!” This is what happens when you avoid striking down all racial classifications per se.

After another jumble about the 14th Amendment, Warren finally rests the decision to strike down Virginia’s law not on grounds that racial classifications are per se unconstitutional, but by elevating a “right to marriage.”

The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

Question: If a town adopted an ordinance setting up segregated tennis courts, would it be most sensible to strike it down by discovering “an equal right to tennis“? Hello?

Dershowitz concludes: “There can be no certainty about how justices of the past would decide today’s cases. But about one thing I’m certain: The members of the Warren court were principled liberals who held fast to what they regarded as the mandates of the Constitution.” To the contrary, today’s Court is still cleaning up many of Warren’s (and Anthony Kennedy’s) messes.

P.S. Dershowitz might have a stronger case if he looked instead to one of the other liberal lions of the Warren Court, William O. Douglas, who wrote in  Lee v. Johnson (1971):

Brown v. Board of Education was not written for blacks alone. It rests on the Equal Protection Clause of the Fourteenth Amendment, one of first beneficiaries of which were the Chinese people of San Francisco. See Yick Wo v. Hopkins. The theme of our school desegregation cases extends to all racial minorities treated invidiously by a State of any of its agencies.

Here, at least, we see a distinct difference between a liberal jurist of old and Justices Sotomayor and Brown-Jackson today.

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