Ed. by Mark Tushnet, Beacon Press, Boston, Mass. 256 pages, $16
Following the Civil War, the Thirteenth Amendment outlawed slavery. Congress was given the authority to abolish the badges and incidents of slavery.
The Fourteenth Amendment prevented the states from abridging the privileges and immunities of U.S. citizens, or depriving any person of life, liberty or property without due process of law.
In the Civil Rights Cases of 1883, the Civil Rights Act of 1875 prohibiting racial discrimination in public accommodations such as inns, hotels, theaters and public transportation was held to be unconstitutional. Racial discrimination was a civil injury, not a badge or incident of slavery banned by the Thirteenth Amendment. The right to be free of racial discrimination was a social right which Congress was powerless to enforce.
In an impassioned dissent, the first Justice John Marshall Harlan wrote: “Was nothing more intended than exemption from actual slavery? Was it the intention to simply destroy the institution and then remit the race to the several states for such protection in their civil rights as they in their discretion choose to provide?”
In Plessy v. Ferguson, the Supreme Court refused to hold that a Louisiana statute requiring blacks and whites to ride in separate but equal railroad coaches violated the Equal Protection Clause. Since blacks could purchase tickets and ride in railroad coaches equal to those in which whites rode, and since neither race was allowed to sit with the other, both races were being treated equally insofar as their civil rights. The right to occupy the same railroad coach was a social right.
Justice Harlan again dissented. Plessy would stimulate aggressions on the rights of black citizens.
He was right. Plessy encouraged the Jim Crow system, of which segregated schools were a central feature. When the NAACP targeted segregated elementary and secondary schools, it was considered a direct attack on segregation as an institution. Brown v. Board of Education involved five cases that questioned whether segregated schools were constitutional where achieving real equality in separate facilities was for practical purposes impossible. Although it was thought that a majority on the Court would probably hold that segregation was unconstitutional, great care would be needed in formulating a coherent theory and devising a remedy that would achieve unanimity. Indeed, the Court delayed a decision and ordered that the case be reargued in order to address the Fourteenth Amendment and the issue of remedy.
Writing for a unanimous court, Chief Justice Earl Warren noted that education was perhaps the most important function of government. The separation of black students from others generated a feeling of inferiority “that may affect their hearts and minds in ways likely to be undone.” He concluded “that in the field of public education, the doctrine of separate but equal has no place.”
In hindsight, the result seemed inevitable: It’s easy to forget how radical a departure Brown was from prior jurisprudence. Associate Justice Robert Jackson had considered writing a concurring opinion. The unpublished opinion became public in 1988. Professor Tushnet included it as a “dissent” to illustrate the enormous obstacles that the Court had to overcome to speak unanimously.
Although personally opposed to school segregation, Justice Jackson noted that it had become deeply imbedded in the social custom in parts of the country. The eradication of segregated schools would require a substantial reconstruction of legal institutions and society. The Fourteenth Amendment had given Congress the power to abolish segregated schools. Instead, the same Congress that proposed the Fourteenth Amendment established and maintained segregated schools in the District of Columbia. How then could the Court hold that the Fourteenth Amendment required it to abolish segregated schools?
He wrote: “However sympathetic we may be with the resentments of those who are coerced into segregation, we cannot in considering the recasting of society by judicial fiat, ignore the claims of who are to be coerced out of it. We cannot deny the sincerity and passion many feel . . . that they have built their segregated institutions for many years on an almost universal understanding that segregation is not constitutionally forbidden.”
Congress, rather than the Court should undertake the task.
The dissents place the Court opinions in the Civil Rights Cases of 1883 – Plessy, Brown and the others – in context. By focusing on how compelling the losing arguments were, Tushnet demonstrates that Constitutional jurisprudence is on an extraordinary journey which has not yet reached its destination. That is the true value of this valuable easy-to-read volume.
Finally, “I Dissent” provides examples of judicial rhetoric that stir the heart. In 1919, Anita Whitney was charged with violating California’s ban on criminal syndicalism. Her conviction was upheld by the Supreme Court in Whitney v. California. It was not clear from the record that the constitutional defense had been raised below. Justice Louis D. Brandeis issued a concurring rather than a dissenting opinion: “***Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. ***They recognized***that order could not be secured merely through fear of punishment for its infraction, that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely grievances and remedies . . . . Believing in the power of reason . . . , they eschewed silence coerced by law – the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”
We forget those words at our peril.
Lawrence A. Mandelker is a member of Kantor, Davidoff, Wolfe, Mandelker & Kass.