America's Unwritten Constitution: The Precedents and Principles We Live By (45 page)

FULL RACIAL EQUALITY REMAINS A GREAT, UNFINISHED ITEM
on the American agenda—and a complex one. Is actual social integration, as opposed to the ending of legal segregation, a constitutionally preferred goal? Even if it is, may governments engage in race-conscious actions to bring about this goal? What, if any, limits should apply to such actions?

The written Constitution offers us only limited guidance on these questions. To the extent that the Founders preached anything on this particular topic worthy of our allegiance today, they did not fully practice what they preached, as the slaves of Monticello and Montpelier (and even Mount Vernon) surely understood. Even the great texts and deeds of the Reconstruction generation can offer us only incomplete illumination and inspiration. In the 1860s, most American blacks had either been born slaves or born to ex-slave parents, and most American whites had little experience interacting with large numbers of free blacks. The issues of racial healing and the practical political limits confronting statesmen of goodwill in that era were surely vastly different from the racial questions that confront America in the age of Obama. (Indeed, the very word “statesmen” in the previous sentence should remind us that the political world was a different place before the advent of woman suffrage and many other twentieth-century reforms.)

In light of the limited guidance furnished by the written Constitution’s text and original intent, what specific race-rules should properly govern twenty-first-century America? Some prominent scholars and judges have argued that the Constitution comfortably permits race-based “affirmative action” policies designed to help blacks—even if the government adopts or approximates a racial quota system in the distribution of benefits. Other leading constitutionalists have contended that government may never take race into account, even in supposedly benign ways aimed to help racial minorities, except when using narrowly tailored race-conscious remedies on behalf of identifiable victims of proven or provable legal violations.

Today’s Court has steered a middle course between these extremes. The Court’s case law has recognized that using race to integrate is different from using race to segregate, and that race-based policies aiming to promote racial equality differ from old-fashioned Jim Crow laws that aimed to secure white supremacy. More specifically, the Court has recognized that in certain realms—especially education—integration is a
proper government goal that government may sometimes pursue via race-conscious means, even on behalf of racial minority members who cannot prove that they were victims of illegal racial discrimination. Nevertheless, race-conscious actions must be very carefully restricted, lest these policies treat whites unfairly, stigmatize blacks, generate white backlash, or create a racially divisive politics.
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While hardly compelled by the teachings of
Brown
and the Dream Speech, this middle position is broadly consistent with and consciously informed by these two iconic works. Both texts surely suggest that it is dangerous to allow government to treat any two persons differently simply because the two have different skin colors.
Brown
, after all, invalidated government policies that treated persons differently “according to race”; and its companion,
Bolling
, proclaimed that the Constitution forbade “discrimination…against
any
citizen because of his race” (emphasis added). King famously dreamed of a day when persons would “not be judged by the color of their skin but by the content of their character.”

Yet, in context, both
Brown
and the Dream Speech can also easily be read as pro-integration, even if integration entails government action that is not strictly color-blind. Lower courts implementing
Brown
issued various orders requiring previously segregated public schools to take race into account in order to end a regime in which some schools were strongly identified as “black schools” and others as “white schools.” Some of these race-conscious school assignments governed newly entering kindergarteners who had not been victims of any past school segregation.
²⁰

King dreamed of a day when “my four little children” would be judged by the content of their character, children who had been born at a disadvantage because they were black, whether or not they could ever prove that they had already become victims of some discrete and identifiable legal wrong at the hands of government. (His daughter Bernice was less than a year old at the time, and his son Dexter was two and a half.) The Dream was hardly color-blind—it was exquisitely attentive to color because America was so strongly color-coded in 1963. When King said, “[T]here is something that I must say to my people,” whom did he mean by “my people”? All people? All Americans? All children of God? No. At that precise instant he was speaking as a black person about black people.

Yet King dreamed of a day when all persons of all races would unite—would
integrate. Indeed, much of the power of his dream resided in the fact that blacks and whites were uniting on that glorious day, as King himself emphasized: “The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers,
as evidenced by their presence here today
, have come to realize that their destiny is tied up with our destiny. They have come to realize that their freedom is inextricably bound to our freedom.
We cannot walk alone”
(emphasis added).

Moments later came King’s final crowning vision, a vision of persons across the racial divide holding hands and singing together, a vision not merely of American liberty and American equality but also of genuine American fraternity—a vision far more strongly integrationist than anything in the terse text, yet surely a key part of America’s Constitution, rightly understood.

SEVERAL SYMBOLS CONSTITUTIVE
of America’s constitutional identity are
negative
symbols, crystallizing what America today rejects—indeed, abhors. In particular, three specific Supreme Court opinions occupy the lowest circle of constitutional Hell and are today denounced by lawyers and judges across the spectrum:
Dred Scott v. Sanford, Plessy v. Ferguson
, and
Lochner v. New York
. Each case presents an example of unwritten constitutionalism run amok, and thus powerfully reminds us of the need to place principled limits on judges who venture beyond the text and original understanding of the written Constitution.
²¹

Before turning to these three cases, it is worth pondering what general factors seem to be at work in shaping how the judicial actions of one era are evaluated by later generations of judges and citizens. Clearly, not all cases that are overruled by a later Court ruling or constitutional amendment come to be demonized after the overruling. For example, the 1833 case of
Barron v. Baltimore
held (correctly) that the Bill of Rights as originally written did not properly apply against state governments. No one on the modern Court or in today’s academy attacks
Barron
, even though
Barron’s
vision of a world in which states and localities are free to violate the Bill of Rights with impunity is anathema to modern sensibilities.

Some might think that modern generosity toward
Barron
exists simply because its ruling is moot: The Fourteenth Amendment overruled the case, and that’s that. But is it? The Fourteenth Amendment, after all, was designed to overrule not one but two major Supreme Court cases—
Barron
(on the inapplicability of the Bill of Rights to states) and
Dred Scott
(on the impossibility of black citizenship). Yet these two overruled cases receive sharply different treatment in modern constitutional discourse.
Dred Scott
is openly trashed, not merely by many of America’s best scholars but by justices of all stripes on the Warren and post-Warren Courts. Not so with
Barron.
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Is the answer simply that the
Dred Scott
Court’s bottom line was racist and proslavery, and thus morally repugnant when judged by today’s standards? This is surely part of the answer, but many other antebellum-era cases with racist and proslavery bottom lines are not demonized, or even remembered, today. Also, why is there so little modern outrage directed at
Minor v. Happersett
, which in 1875 ruled that women had no constitutional right to vote? Just as
Dred Scott’s
racist result was overruled by the Fourteenth Amendment, so
Minor’s
sexist result was overruled by the Nineteenth Amendment. Why, then, the different reputations of these two cases?

The answer is twofold. First,
Barron
and
Minor
were not merely plausible but plainly correct interpretations of the written Constitution as it existed when these cases were decided.
Dred Scott
, by contrast, was a preposterous garbling of the Constitution as that document was publicly understood when ratified, and the case was harshly criticized on precisely these grounds by notable contemporaries. In a July 1858 speech in Chicago, Lincoln called the case “an astonisher in legal history.” Here, then, we see the significance of America’s written Constitution. Whatever government officials might think they can get away with at the time, in the long run it does matter whether a case (think here of
Dred Scott
), a law (think here of the Sedition Act of 1798), or a president’s actions (think here of Watergate) treated the document’s text and structure with respect or contempt.

Second,
Dred Scott
ran counter to the Northwest Ordinance, whose free-soil spirit was declared unconstitutional by Taney, and also counter to Lincoln—who rose to fame as a result of his early criticism of
Dred
, became president on an anti-
Dred
platform, and in his opening sentence at
Gettysburg explicitly challenged
Dred’s
dismissive treatment of the equality language of the Declaration. Similarly,
Plessy
ran counter to
Brown
. Precisely because the Northwest Ordinance, the Gettysburg Address (and its gloss on the Declaration), and the
Brown
opinion are iconic elements of America’s symbolic Constitution, their opposites naturally enough provoke special revulsion. Here we see additional evidence of the reality and significance of America’s symbolic Constitution—and another illustration of how various constitutional symbols interconnect in an intricate semiotic network.

If this analysis is correct,
Lochner
should be viewed as a less demonic precedent than
Dred
and
Plessy
because it is not as visibly paired against a symbolic hero. And in fact, one can find scholars who praise
Lochner
and even some who call for its revival.
²³

But one does not hear such calls on the Court itself. In modern Court opinions,
Dred, Plessy
, and
Lochner
all function as antiprecedents—as demonized and demonic cases that are typically cited either to assert how different they were from the view being put forth by the citing justice, or as epithets and insults to hurl against the justices on the other side of a case who, according to the citer, are making a horrible mistake reminiscent of one of these three disgraced decisions. Almost none of the countless Court citations to these three cases over the past half-century have been remotely favorable, and most have been highly derogatory.

With these general observations in mind, let us now quickly survey each of these three demonized decisions.

Dred Scott
. Chief Justice Taney’s 1857 opinion for the Court in
Dred Scott
in effect claimed that all citizens had to be “white,” a word that nowhere appeared in the Founders’ text and that the Founders had pointedly omitted, in part because free blacks were in fact citizens and voters in several states at the Founding. Even more preposterous was Taney’s claim that no federal territory could prohibit slavery, a rule that nowhere appeared in the Founders’ document and that plainly contradicted the original understanding.
Dred Scott
also treated landmark congressional legislation—most obviously, the Northwest Ordinance and the Missouri Compromise—with contempt.

To be sure, the
Dred Scott
opinion claimed to be following the underlying premises of the Founders themselves, but this claim was untrue—the Court simply flouted the written Constitution’s letter and spirit. The Court also claimed that moral considerations were wholly irrelevant to the constitutional issues under consideration. But there is room for persons of conscience to properly consult those consciences if the Constitution’s written provisions are in fact fairly open to different interpretations and if one of these interpretations would lead to a grossly immoral result. The spread of slavery to virgin soil was precisely such a result, as slavery was surely an immoral institution, regardless of slavery’s status as a legally protected system where it already existed.
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Plessy
. In this 1896 case, the Court disregarded the rather plain facts that: (1) the written Constitution promised that blacks would be treated as equal citizens, and (2) the whole point of Jim Crow was to deny black equality—to treat blacks as inferior. This judicial disregard cannot be justified by appealing to some vague notion of an “unwritten Constitution” that must be given its due. America’s unwritten Constitution supplements but does not supplant. It should never be a carte blanche authorizing judges (or other government officials) to ignore core commands of the written Constitution.

It is not anachronistic to condemn the
Plessy
majority in these harsh terms. After all, these are the very terms used by the first Justice John Marshall Harlan in his famous dissent, issued the same day as the infamous majority opinion. Harlan wrote that “the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the
Dred Scott
case”—a remarkably prescient prediction, and an uncanny one, again illustrating linkages between different elements within the canon of America’s symbolic Constitution.
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