America's Unwritten Constitution: The Precedents and Principles We Live By (26 page)

Segregationists in the 1860s also argued that racial separation would actually serve the interests of both races and was favored by most blacks as well as most whites. If so, then separation might indeed have been “equal” enough sociologically to be acceptable constitutionally—just as separate bathrooms and separate sports teams for males and females today pass constitutional muster precisely because a majority of each sex presumably accepts and perhaps even prefers this separation. But whether or not blacks in the 1860s truly preferred to sit separately in Capitol galleries or elsewhere was largely irrelevant in the 1950s, when it was clear that Jim Crow was an insulting and subordinating imposition by whites upon blacks, an imposition vigorously opposed by a wide range of black leaders and the great mass of black citizens.
¹⁰

Another segregationist argument in the 1860s was that racial segregation was formally different from the infamous Black Codes. Black Codes were formally and facially asymmetric: They heaped disabilities on blacks but not whites. By contrast, Jim Crow was formally symmetric: While blacks could not go to School X, whites were symmetrically barred from attending School Y.

Although some 1860s segregationists thought that formal symmetry rendered the Fourteenth Amendment textually inapplicable, they were clearly wrong about this. To repeat, the text does not say and cannot easily be read to say that deep and abiding inequality is permissible so long as a law is formally symmetric. Formal symmetry does not and cannot mean the law is automatically valid. Rather, formal symmetry merely means the law is not automatically (what lawyers call “facially”)
in
valid, as were the Black Codes. The simple question remains: Were formally symmetric Jim Crow laws truly equal? It is possible to imagine some parallel universe where blacks as well as whites sought separation, where no stigma attached to separation, and where separation was not an instrument of subordination. But that was not the world of Jim Crow in 1954 (or in 1896, when the Court wrongly upheld segregation in
Plessy v. Ferguson
).

Reconstruction-era conservatives sometimes articulated their intuition that formal symmetry decisively distinguished segregation and antimisce-genation laws from Black Codes by claiming that race-separation laws involved not “civil rights,” but rather “social rights” that lay beyond the reach of the Fourteenth Amendment. But segregation laws did not merely
allow
whites to separate themselves from blacks if whites preferred this “social” arrangement. These laws
required
separation even if both whites and blacks preferred to socialize together or intermarry, and the clear purpose and meaning of such enforced separation was to boost whites and degrade blacks. Nothing in the text of the Fourteenth Amendment signaled that this species of state action was somehow categorically exempt from the amendment’s general requirement of equal citizenship.
¹¹

A final segregationist argument was that the Fourteenth Amendment’s equality norms applied only against state governments. Although this argument, if correct, could not justify state apartheid policies, it might explain segregation in various federal spaces, such as the Capitol galleries. But the Constitution’s text plainly contradicts this argument. The amendment’s first sentence creates rights of equal citizenship that apply against all governments, state and federal. Its text provides that “[a]ll persons born…in the United States” are by that fact alone “citizens of the United States”—and thus, equal citizens at birth. This sentence in effect constitutionalized the Declaration of Independence’s “self-evident” truth—a truth that Lincoln had famously stressed (and glossed) at Gettysburg—that all men (that is, persons) are created (that is, born) equal. Any law, state or federal, heaping disabilities or dishonor upon any citizen by dint of his or her birth status—because he was born black, or because she was born female or out of wedlock—violates a core principle of the Fourteenth Amendment’s opening sentence.
¹²

The Civil Rights Act of 1866—a companion statute passed by the same Congress that proposed the Fourteenth Amendment, in the same season and by nearly the same vote—featured language virtually identical to this sentence and explicitly linked this language to a racial-equality rule binding both state and federal officialdom: “All persons born in the United States…are hereby declared to be citizens of the United States; and such citizens,
of every race and color
…shall have the same right, in every State
and Territory
in the United States, to… full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other” (emphasis added).
¹³

Beyond the Fourteenth Amendment, the antinobility clauses of the Founders’ Constitution explicitly applied against both state and federal officials, as did the Fifteenth Amendment, which demanded racial equality not just in Election Day voting but also in other voting venues, such as jury rooms and legislative assemblies.
¹⁴

AND SPEAKING OF LEGISLATIVE ASSEMBLIES,
we should pay close attention, as did Massachusetts Senator Charles Sumner in pointed and poignant remarks delivered shortly after the Fifteenth Amendment’s ratification, to the fact that the Reconstruction Congress itself allowed its black and white members to sit side by side on a plane of perfect equality—indeed, as “brother[s]”—on the House and Senate floor. “[W]e have had in this Chamber a colored Senator from Mississippi; but according to [segregationist ideology] we should have set him apart by himself; he should not have sat with his brother Senators.…[A colored man] is equal here in this Chamber. I say he should be equal in rights everywhere.”
¹⁵

In embracing Sumner’s brotherly vision many decades later, the
Brown
Court not only obeyed the plain meaning of the Constitution’s text but also carried forward the Reconstruction practice that best embodied the promise of the text: the integration of the floor of Congress itself.

AS ICONIC AS
B
ROWN
AND
its progeny have been, other lines of Warren Court case law have arguably been even more significant.

Beginning in the early 1960s, the Warren Court handed down a series of decisions declaring that the Fourteenth Amendment took various provisions of the Bill of Rights that had originally operated only against the federal government and applied—“incorporated,” in doctrinal jargon—these provisions against the states. In 1986, Justice Brennan ranked these incorporation opinions as the “most important” accomplishment of the
Warren era. In a 1970 essay generally critical of the Warren Court, Solicitor General (and former Harvard Law School Dean) Erwin Griswold noted that the stakes in the incorporation cases had been enormous: “I can think of nothing in the history of our constitutional law which has gone so far since John Marshall and the Supreme Court decided
Marbury v. Madison
in 1803.”
^16
*

The incorporation revolution was foreshadowed by a series of cases in the second quarter of the twentieth century. In this era, the justices came to agree that certain aspects of the Bill of Rights—most importantly, freedom of expression and religion—should apply against states, but not necessarily with the same strictness that would obtain in a Bill of Rights case proper involving comparable federal conduct. The explicit textual basis for applying the Bill to the states, even in watered-down form, was the Fourteenth Amendment, which the Court read as obliging states to observe fundamental rights essential to “a scheme of ordered liberty.” Famous proto-incorporation cases in this pre-Warren period include
Near v. Minnesota
(prohibiting press censorship),
Powell v. Alabama
(overturning a scandalously unfair capital trial of poor black youths—the “Scottsboro boys”),
Cantwell v. Connecticut
(striking down solicitation regulations that amounted to religious censorship),
West Virginia State Board of Education v. Barnette
(invalidating compulsory flag-salutes in public schools),
Everson v. Board of Education
(upholding a religiously neutral policy subsidizing buses for private schools), and
Wolf v. Colorado
(prohibiting unreasonable state searches and seizures but declining to saddle states with the federal exclusionary rule).
¹⁷

Then came the incorporation revolution of the 1960s, as the Warren Court applied virtually all the provisions of the Bill of Rights against states and further held that these rights meant the same thing against the states as they did against the federal government. Most famously,
Mapp v. Ohio
applied the federal exclusionary rule, with all its rigor, to state police conduct;
Gideon v. Wainwright
insisted that the federal right of counsel—which included a right of appointed counsel for indigent criminal defendants—had to be respected by all states;
Malloy v. Hogan
applied the Fifth Amendment self-incrimination clause to states;
Miranda v. Arizona
went much further, applying the clause to police-station interrogations (even if the suspect was never obliged to answer under oath); and
Duncan v. Louisiana
required every state criminal court to honor the Sixth Amendment jury-trial right. A medley of less famous cases held that the Fourteenth Amendment incorporated, among other things, the Fifth Amendment double-jeopardy clause; the Sixth Amendment’s clauses guaranteeing speedy trials, compulsory process, and the right to confront adverse witnesses; and the Eighth Amendment’s bans on excessive bail and cruel and unusual punishments.
¹⁸

These cases vastly expanded the practical scope of the Bill of Rights. For every federal felony prosecution in America today, there are more than a dozen state felony prosecutions. (That is why almost every high-schooler has heard of
Gideon
and
Miranda
; by contrast, even quiz-show winners would find it hard to name the analogous pre–Warren Court cases involving the federal government—
Johnson v. Zerbst
and
Bram v. United States.
)

Alongside its incorporation cases proper, the Warren Court handed down closely related decisions applying previously applicable rights against states, but now with special rigor rather than in watered-down form.
New York Times v. Sullivan
(an iconic free-speech case),
Engel v. Vitale
and
Abington School District v. Schempp
(a pair of decisions banning official prayer in public schools), and
Tinker v. Des Moines
(which championed the political-speech rights of students) exemplified this category.

So did
Griswold v. Connecticut
. Recall that Justice Douglas’s 1965 opinion for the
Griswold
Court argued that the right of privacy could be found between the lines of the Bill of Rights—a document that the Court was increasingly deploying directly against states, thanks to the incorporation
revolution in full swing when
Griswold
was decided. To the extent that Douglas’s opinion in
Griswold
offered an implausible account of the letter and spirit of the first eight amendments,
Griswold
’s result could also be seen as in effect incorporating the Ninth Amendment’s notion of unenumerated rights against states. As with the first eight amendments, the Ninth had originally been designed only as a limit on the federal government, but after
Griswold
the notion of unenumerated rights against states gained steam. Douglas’s majority opinion made passing reference to the Ninth, and in a concurrence joined by Warren and Brennan, Justice Arthur Goldberg devoted several pages to this amendment, arguing that it served as a pointed reminder that not all citizen rights were enumerated.

By the end of the Warren era, the justices had used the Bill to strike down a vast number of state and local practices in contexts far removed from property and contract. Never before had the Court been so active in protecting liberty, privacy, and equality, and these Warren Court actions set the stage for post-Warren justices to do even more. Thus,
Griswold
provided the backdrop for
Roe v. Wade
and
Lawrence v. Texas
;
Engel
and
Abington
gave rise to a veritable cottage industry of modern litigation pricking out the proper line between church and state; and the incorporation of virtually all other parts of the Bill of Rights eventually encouraged the justices in
District of Columbia v. Heller
and
McDonald v. Chicago
to read the Second Amendment as protecting an individual right to keep a gun at home and to incorporate that right against states.

Even cases that at first seem wholly unrelated to incorporation often owe a deep debt to this doctrine. Consider, for example, the emphatic command of the First Amendment: “Congress shall make no law…abridging the freedom of speech.” When Congress did make such a law early in American history—the Sedition Act of 1798—Supreme Court justices riding circuit vigorously enforced the act and swept aside First Amendment objections. When Congress made other laws abridging free speech during World War I, history repeated itself, and the justices once again sent citizens to prison for criticizing the government. (This time, the justices sat en banc, rather than on circuit.) The first time the Court ever struck down a congressional statute as a violation of free-expression principles was 1965—shortly after the incorporation revolution had begun.
¹⁹

This timing was hardly coincidental. Thanks to the proto-incorporation
free-expression cases of the preceding generation and to its own budding incorporation doctrine, the Court in the 1960s experienced a steady flow of cases inviting the justices to ponder how best to protect citizen expression against overreaching state and local governments. The recurring fact patterns in these state cases enabled the Court to begin articulating judicial rules, regulations, tests, and formulas—judicial doctrines—safeguarding free expression in a wide range of situations. Once the Court became comfortable with these doctrines, the justices were well positioned to wield these rules even against Congress, a coordinate branch of government. Thus, a 1943 proto-incorporation flag-salute case from one state (
West Virginia State Board of Education v. Barnette
) set the stage for a 1989 postincorporation flag-burning case from another state (
Texas v. Johnson
), which in turn established the basic doctrinal rules that were then easily deployed by the Court to strike down a federal flag-burning law directly under the First Amendment in a 1990 case,
United States v. Eichman
.