Making Our Democracy Work (9 page)

Yet the Constitution’s language does not support such an interpretation. The protection it provided the slave trade expired in 1808. The constitutional guarantees of equal state representation in the Senate and the census-related supermajority status of slave states in the House of Representatives were written in terms that permitted the political destruction of the protection they offered the South. The preamble
says that “We the People of the United States … ordain and establish this Constitution,” language broad enough to cover Dred Scott.

One cannot easily reconcile Taney’s vision with the expressed abolitionist hopes of, for example, Benjamin Franklin and many other framers. Nor, most important, can one reconcile this vision with the Constitution’s most basic objective, the creation of a single nation. The Constitution does so by creating political institutions strong enough to permit the “people” to govern themselves, determining policies and resolving problems ranging in subject from defense to territorial expansion to commerce, while protecting basic personal liberties across (the framers hoped) the centuries. The concept of a political treaty among sovereign and independent states focusing primarily on slavery is not compatible with this more basic constitutional objective. (And, of course, if the
Dred Scott
majority doubted that fact in 1857, the post-Civil War amendments to the Constitution ending slavery, guaranteeing voting rights, defining citizenship, assuring individuals equal protection of the laws, and protecting basic individual liberty from state interference overturned the legal precedent they created.) Taney’s vision was not of a Constitution that created a central government but of a treaty that linked states.

A fifth lesson concerns the harm the Court worked upon the Hamiltonian cause. The Court placed those who saw the need to follow the law in a dilemma that Lincoln himself expressed well in his first inaugural address:

That is to say, the other departments of government, while bound to carry out the Court’s decision in a
particular
case, owe that Court only “high respect and consideration” in respect to its interpretation of the Constitution. And sometimes the “people” rightly can themselves decide “vital” interpretive “questions” irrespective of the Court’s views. If Abraham Lincoln has begun to sound like Andrew Jackson, is the
Dred Scott
Court itself not to blame?

Finally,
Dred Scott
tells us something about morality’s relation to law. When discussing
Dred Scott
at a law school conference, I asked the audience to consider a hypothetical question. Suppose you are Benjamin Curtis. Imagine that Chief Justice Taney comes to your chambers and proposes a narrow ground for deciding the case. He asks if you will agree to a single-paragraph unsigned opinion for the entire Court, in which the Court upholds the lower court on the ground that the matter is one of Missouri law in respect to which the Missouri Supreme Court must have the last word. He will agree to this approach provided there is no dissent.
³¹

Should you agree? If you do, the majority will say nothing about citizenship, nothing about the Missouri Compromise, nothing about slavery in the territories and the due process clause. As a result, the Court will create no significant new law; it will not diminish its own position in the eyes of much of the nation; it will not issue an opinion that increases the likelihood of civil war; and because no one knows who would win such a war (after all, the North almost lost), the prospects for an eventual abolition of slavery will be unaffected, perhaps increased.

Not a bad bargain, but the audience was uncertain. Then a small voice came from the back of the room. “Say no.” And the audience
broke into applause. That applause made clear the moral nature of the judge’s legal obligation in that case.

A close examination of the
Dred Scott
opinion, the Court’s “worst case,” can teach us through negative example about the important relation between the way the Court fulfills its obligation to maintain a workable Constitution and the way the public carries out theirs. It also can help us understand the importance of solid reasoning, the dangers of reliance on rhetoric, the need for practical constitutional interpretation consistent with our nation’s underlying values; and it teaches us the important role that morality and values play—or should play—at the intersection of law and politics.

I
N
1957, P
RESIDENT
Dwight Eisenhower had to answer difficult and historically important questions about how to enforce the Supreme Court ruling in
Brown v. Board of Education
requiring racial integration of the public schools. In the face of fierce public opposition, he had to decide whether (and how) to send troops to Little Rock, Arkansas, in order to enforce lower-court orders designed to provide racial minorities with the protection offered by the equal protection clause of the Constitution’s Fourteenth Amendment. The Little Rock cases directly raise the enforcement question—Hotspur’s question—that Hamilton had not answered. The Court succeeded in enforcing its decisions, as did the lower courts their orders, but only with key support from the president. This illustrates the often-necessary link between effective enforcement and executive cooperation. The Little Rock cases eventually helped to produce victory for the cause of racial integration, a victory that helped secure the rule of law in America.

B
EFORE
1954
THE
South administered a comprehensive set of rules that legally required racial segregation throughout southern society. These rules forced African-Americans to suffer inferior schooling, inadequate public facilities, and countless other harms and indignities.
In
Brown v. Board of Education of Topeka, Kansas
(and four other cities), the Supreme Court was asked to decide whether “segregation of children in public schools solely on the basis of race,” even if the “physical facilities and other ‘tangible’ factors” were “equal,” nonetheless would “deprive[] children of the minority group of equal educational opportunities.” On May 17, 1954,
Brown
answered this question with the words “We believe that it does.” In its most famous sentences, the unanimous Court said: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” The Court thus held that the South’s legal system of segregation violated the Constitution’s guarantee that “no State shall … deprive any person of … equal protection of the laws.”
¹

The legal answer to the question was not difficult. The Court held that the Constitution’s words meant what they said. State-imposed racial segregation was directly contrary to the purposes and demands of the Fourteenth Amendment. Racial segregation reflected an effort to wall off African-Americans as an inferior race and produced a segregated society that was unequal.

In deciding
Brown
, the Supreme Court fulfilled its most fundamental role in our democracy, that of guardian of our Constitution. The
Brown
decision was momentous. America at last would try to become the single nation that its Constitution intended.
Brown
led to a large number of subsequent cases and court decisions that sought to implement the constitutional principle that
Brown
reaffirmed.

From the moment it was decided,
Brown
was more than just a legal decision. It validated the moral principle of racial equality that was pressing for recognition in other arenas of American life. It gave new legal legitimacy to the political efforts of the civil rights movement, and thus helped to energize the movement.
Brown
made it possible for Dr. Martin Luther King, Jr., to say, in one of his most memorable phrases as a civil rights leader, “If we are wrong, the Constitution of the United States is wrong.”
Brown
became a symbol for the nation—of a new era in race relations in the United States, of what the Supreme Court could contribute to American life, of how law could advance justice. Today, long after it was decided,
Brown
remains one of the most important Supreme Court decisions in our country’s history, and one that
demonstrates how, at crucial moments, the Supreme Court can summon the country to adhere to its fundamental principles.
²

Brown
did not come out of nowhere. Its groundwork was laid not only by the suffering endured by black people during generations of slavery, inequality, and subordination but also by the efforts of civil rights lawyers to persuade the Supreme Court over many years that its 1896 decision in
Plessy v. Ferguson
(permitting “separate but equal” facilities) was wrong. These lawyers undertook a step-by-step litigation campaign to advance the evolution of constitutional law. The incremental steps taken by the Supreme Court itself, along with measures such as President Truman’s desegregation of the armed forces in 1948, helped prepare the country for the ruling in
Brown
. Still, in
Brown
the Supreme Court knew that it was doing something highly significant, and despite its acceptance by much of the American public the Court knew that the decision would meet with resistance in many places.
³

The Court, understanding the enforcement difficulties, said it would consider “appropriate relief” in a later opinion, and issued a second opinion,
Brown II
, a year later, on May 31, 1955.
⁴
The National Association for the Advancement of Colored People (NAACP), whose lawyers (including Thurgood Marshall) represented
Brown
’s plaintiffs, had asked the Court to specify that lower courts throughout the South must immediately hold segregation unconstitutional, to require the courts to issue periodic progress reports, and to insist on integration of all public schools no later than September 1956. The attorney general, Herbert Brownell, Jr., one of President Eisenhower’s closest associates, echoed the executive branch viewpoint that an integrated education was “a fundamental human right, supported by considerations of morality as well as law.” Brownell asked the Court to require school districts to submit desegregation plans to the district courts, tell those courts to supervise the implementation of those plans closely, have the courts submit periodic reports to the Supreme Court itself, and require integration after a one-year transition period (though possibly with reasonable extensions). Brownell’s brief concluded that “there can be no justification anywhere for failure to make an immediate and substantial start toward desegregation, in a good-faith effort to end segregation as soon as feasible.”
⁵

The Court accepted these recommendations, but only in part. It
delegated primary enforcement powers to local federal district courts and said that local school authorities must “make a prompt and reasonable start toward full compliance.” But it added that “the courts may find that additional time is necessary,” because of issues of “administration” related to “physical condition of school plant, the school transportation system, personnel, revision of school district and attendance areas,” and “revision of local laws and regulations.” It told the lower federal courts that they should consider “whether the action of school authorities constitutes good faith implementation of the governing constitutional principles, [b]ecause of their proximity to local conditions and the possible need for further hearings.” The Court summarized its desegregation instructions to the lower courts in the words “with all deliberate speed.”
⁶

But even with that approach, the Court faced outright opposition to carrying out its order at all. According to NAACP estimates,
no
public schools in the eight southern states were actually desegregated in 1955. At the same time, a large majority of the South’s congressional representatives signed the Southern Manifesto declaring their belief that
Brown
was wrongly decided, that it was an “abuse of judicial power,” and that it provided an example of the “Federal judiciary undertaking to legislate.” The manifesto called for “all lawful” resistance against
Brown
and the Supreme Court.
⁷

More ominously, the White Citizens’ Council began to organize chapters throughout the South. They claimed that the
Brown
decision itself was unconstitutional. They adopted a form of the “nullification” argument—a constitutional argument used by the South before the Civil War: The state could lawfully ignore
Brown
by
interposing
its own legal authority to prevent integration. In any event, the councils would “never” permit integration. They argued for popular resistance, predicting that there would not be “enough jails to punish all resisters.”
⁸