America's Unwritten Constitution: The Precedents and Principles We Live By (36 page)

Although the written Constitution says little about remedies, a powerful regulatory ideal and background legal principle (rather like the precept that no man should be a judge in his own case) prevailed at the Founding: For every legal right there should be a judicial remedy. Just as Blackstone’s
Commentaries
had highlighted the
nemo judex in causa sua
principle, so, too, the
Commentaries
emphasized the remedial imperative: “[I]t is a general and indisputable [!] rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.” Several Revolutionary-era state constitutions featured similar language in their bills of rights, and Madison/Publius invoked the principle—“But a right implies a remedy”—in a passage whose very casualness indicated the uncontroversial nature of the proposition.
⁴

In
Marbury v. Madison
, Marshall waxed eloquent on the point. He began as follows: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford him that protection.” After quoting Blackstone’s “indisputable” rule and invoking additional language from the
Commentaries
, Marshall concluded with a flourish: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”

In short, the general authority of federal judges to fashion proper judicial remedies is a core feature of America’s Constitution, whether we locate this remedial authority of judges (and the corresponding right of litigants to judicial redress) in the explicit phrase “judicial Power” or treat it as an implicit element of our unwritten Constitution in the spirit of Blackstone and the Ninth Amendment.

WITH THIS FIVE-PART FRAMEWORK
in place, let us now revisit the major Warren Court decisions canvassed in the previous chapter. Because these famous decisions have laid the groundwork for so much of modern constitutional jurisprudence, they furnish a particularly good assortment of case studies to illustrate the general usefulness of our five-part framework and the kind of constitutional insights it makes possible. Within each of the big areas addressed by the Warren Court—segregation, incorporation, free speech, religious freedom, criminal procedure, and voting rights—we shall see that some of the justices’ key moves reflected considerations beyond pure constitutional interpretation. Questions of practical implementation and precedent management also figured prominently in these domains, as did subtle issues of remedial effectiveness.

B
ROWN
AND
B
OLLING
CORRECTLY UNDERSTOOD
and honored the document’s core meaning. Equal meant equal, and citizenship meant citizenship. Thus, on May 17, 1954, the Court read the Constitution aright and said what the law was. As cases about constitutional interpretation—about the
meaning of the written Constitution and about the judiciary’s province and duty of law declaration—
Brown
and
Bolling
were thus easy as pie.

The
Brown
opinion also famously said that, at least in the field of education, separate was “inherently unequal.” Inherently? If understood as a claim about the meaning of the Constitution, this sentence might seem confused. Separate does not mean “unequal” in any obvious dictionary sense. Nor did the Reconstruction Republicans believe that separate was always and everywhere unequal as a matter of logic.

But if
Brown’
s famous sentence is understood as an effort to
implement
rather than simply to
interpret
the Constitution, the sentence makes perfect sense. In order to make the equality rule—the Constitution’s true meaning—effective in courtrooms and in the world beyond courtrooms, the Supreme Court had to fashion implementing sub-rules to guide lawyers, lower courts (both state and federal), school administrators, state legislators, and so on. One possible implementing sub-rule could have simply required black plaintiffs in each and every case to prove that separate was unequal on the facts at hand. But given that separate was almost always unequal in the real world of 1954, would this litigation burden have been fair? Would this sub-rule have vindicated the Blackstone/
Marbury
remedial imperative? After all, this sub-rule would have imposed serious and not-fully-compensable litigation costs and time delays on those who, at the end of the day, were highly likely to prevail in court based on the actual history and practice of Jim Crow. This sub-rule would also have perversely encouraged state officials to continue to sham and wink and frustrate the real meaning of the Constitution. And would such a sub-rule have given strong guidance and cover to lower courts—especially state courts operating under pressure from segregationist state lawmakers?

The terse text did not—and could not realistically be expected to—answer all these second-order issues about how to implement the equality norm in the particular milieu of mid-twentieth-century Jim Crow. The written Constitution simply laid down the civil-equality principle and entrusted courts (among others) with the task of making that principle real in court and on the ground as the genuine law of
the land
. The rule announced on May 17, 1954—that de jure segregation would be presumed unequal in light of the actual history of Jim Crow—was a thoroughly proper way for the Court to discharge its duty of constitutional implementation.

Why, we might wonder, did
Brown
limit its ruling to the field of education? As a matter of constitutional meaning, the Court was right to note that the Fourteenth Amendment equality mandate applied only over a limited domain. (Recall, for example, that the words and the original public meaning of section 1 of the amendment did not apply to political rights, such as voting or jury service.) But nothing in the Fourteenth Amendment’s idea of equal citizenship distinguished between a racial caste system in public schools, on the one hand, and a racial caste system regarding public beaches or public transportation, on the other.

The
Brown
Court nevertheless dealt only with education:
“Plessy v. Ferguson
involv[ed] not education but transportation.…[In 1950] the Court expressly reserved decision on the question whether
Plessy v. Ferguson
should be held inapplicable to public education. In the instant cases, that question is directly presented.…We conclude that
in the field of public education
the doctrine of ‘separate but equal’ has no place.”
⁵

One case at a time is an appropriate way for “judicial Power” to operate. It would also have been permissible for the
Brown
Court to have fashioned a more sweeping opinion that made clear that the Court’s core idea—that Jim Crow was simply not equal—of course applied outside education as well. Alongside the cautious sensibility that judges may and often should simply decide one case at a time, there exists a background first principle—one that went without saying for the Founders and was implicit in the words “judicial Power”—that judges must decide like cases alike. If a caste system in transportation was really no different from a caste system in education, then the same constitutional rule that applied in one domain applied as well in the other.

Having opened the door in
Brown
to the possibility that education might be unlike transportation, the Warren Court correctly closed that door in a 1956 case involving Alabama buses,
Gayle v. Browder
. But the
Gayle
Court acted in a two-sentence ruling that offered no real explanation. The first sentence simply announced the result ending bus segregation, and the second sentence merely cited
Brown
and two
post-Brown
cases (neither of which involved transportation). This was problematic. Judicial doctrine and judicial power require judges to offer carefully reasoned explanations for their rulings. Having opted to write a 1954
Brown
opinion that did not simply say “equality, equality, equality,” but that seemed to
qualify the scope of the Court’s holding by also saying “education, education, education,” the Warren Court over the next several years failed in its declaratory and implementational tasks of making crystal clear to lawyers, lower courts, school administrators, state legislators, and the rest of the citizenry what the legally operative principles truly were and why.
⁶

Two factors, one backward-looking and one forward-looking, explain this lapse. First, had the Court in 1954 simply said “equality, equality, equality” in all realms of public citizenship (political rights excepted), the justices would have had to make clear that the Court had been wrong from day one in
Plessy
. In addition to striking down in a single day hundreds if not thousands of federal, state, and local segregation statutes, ordinances, and policies, the Court would have had to openly overturn its own high-profile precedent. As shall become clearer later in this chapter, the Court has at times been loath to admit its own past errors. Although most people today remember
Brown
as having formally overturned
Plessy
, in fact the Court did no such thing in May 1954. The overruling of
Plessy
became evident only in retrospect (in the cryptic
Gayle
case).

Second, the
Brown
justices knew that massive remedial and implementational challenges lay ahead in making the Court’s ruling and the underlying constitutional equality principle truly the law of the land on the ground. Had the Court in 1954 simply said “equality, equality, equality,” it would have been clear that state laws prohibiting interracial marriage were also unconstitutional. This is indeed what the Constitution, properly read, means. Equal means equal, and legally imposed racial separation in this domain was not truly equal. In the 1967 case of
Loving v. Virginia
, the Court said just that, in an opinion authored by Warren himself.

But when Warren said this in June 1967—at the dawn of the now-famous “summer of love”—bans on interracial marriages were relatively rare and were even more rarely enforced with vigor and efficacy. By 1967, Congress and President Lyndon Johnson had jumped into the fray in full support of
Brown’
s vision, via landmark civil rights and voting rights laws. By 1967, blacks, who had long been disfranchised in massive numbers in some parts of the South, were finally being allowed to vote, and could count on fair apportionment rules after the next census. And by 1967, Martin Luther King Jr. had delivered his iconic speech celebrating an interracial dream
of whites and blacks joining hands. America had indeed witnessed and celebrated the interracial joining of hands that was visible at the Lincoln Memorial at the very moment King spoke these words.

In 1954, however, resistance to interracial dating was intense, widespread, and politically powerful. Indeed, this resistance underlay much of Jim Crow in education: Many white parents did not want their fair-skinned girls to go to integrated schools where they might socialize (and perhaps become romantically involved) with dark-skinned boys. Had Earl Warren written
Brown
in a manner that clearly entailed the invalidity of miscegenation laws, he would have thereby made the task of ensuring actual compliance with
Brown
all the harder in the difficult days ahead. If the judicial province and duty is not merely to say what the law is, but also to make the law real, then
Brown’
s narrowness becomes easier to justify.

A SIMILAR STORY CAN BE TOLD
about the Warren Court’s crusade to apply the Bill of Rights against the states. Here, too, the Court aced the big issue of constitutional meaning. Here, too, implementation issues complicated matters.

The idea of applying all or virtually all of the Bill of Rights against the states was at the very heart of the Fourteenth Amendment’s text as understood by the men who drafted and ratified it in the 1860s. The challenge facing the justices was how best to fashion plausible second-order sub-rules to implement the amendment’s central meaning. The text and history did not dictate one and only one way of “incorporating” fundamental rights. As we saw earlier, at least five different pathways to incorporation plausibly presented themselves. Had the Warren Court rejected all five approaches—as indeed the Court did for much of the pre-Warren era—then the justices would deserve our scorn for their implementational faithlessness and their interpretational stupidity. But when a court chooses one workable approach among the handful of approaches that careful and honest interpretation leave open to it, that court is properly discharging its implementational power and duty.

As with its Jim Crow case law, the most telling criticism of the Warren Court’s incorporation case law is that the justices failed to explain and expound with sufficient care the relevant constitutional principles. Just as
the Court did not make
Brown’
s reach crystal clear until the 1967 miscegenation case, so, too, the Warren Court failed to acknowledge the full sweep of incorporation. Not until decades after Warren’s departure did the justices rule, in the 2010 case of
McDonald v. Chicago
, that the same ground rules that applied to First Amendment rights, Fourth Amendment rights, most Fifth Amendment rights, Sixth Amendment rights, and Eighth Amendment rights also applied to Second Amendment rights. (Fully a half-century after the incorporation project took flight, America is still waiting to hear what the Court has to say about Fifth Amendment grand-jury rights and Seventh Amendment rights.)