3 ms·

Brown itself is not so controversial as the decisions that came after and elaborated on it. They have been criticized from both sides of the political spectrum.

Brown itself is not so controversial as the decisions that came after and elaborated on it. They have been criticized from both sides of the political spectrum. The prohibition of forced desegregation has given way to actual forced integration, as you note. When vigorously enforced, it means that minorities who once controlled their schools, dominated the PTA, and could exercise control over their kids' education, are now doomed to forever be minorities in all institutions, and therefore can only hope to seek redress in court when their rights are violated, instead of exercising affirmative power. I do agree with Brown, to be clear, but some of the excesses of subsequent decisions and their application are great examples of the dangers of judicial activism.

burkaman 9y ago
Why do you agree with Brown, if original intent is what matters? At the time the amendment was passed, the legislature and courts were clearly happy with a separate but equal doctrine. The Morrill Act of 1890, for example, specifically allows separate but equal universities as an alternative to integrated schools. The Supreme Court also upheld segregated schools in cases like Berea College v. Kentucky. If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed, and therefore the law changed without any legislative action.
- dragonwriter 9y ago
  It's also possible everyone was interpreting what it legally required right but interpreting the material facts differently than the Brown court, and that the mistake prior to Brown was one of fact, not law. “Separate is inherently unequal”—in the specific context of public education—in Brown was a statement of an important factual conclusion underlying the decision.
  - burkaman 9y ago
    Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation. Look at Cumming v. Richmond County Board of Education: https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Board_of_Education https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Boa... I think it's very important for people to understand how fluid the Supreme Court can be and how much it responds to public opinion, in choosing which cases to accept and deciding them. Look for example at the unanimous 180 between Pace v. Alabama and Loving v. Virginia. In Loving, the court declares "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis, and it doesn't turn on the particular facts presented to the court.
    - dragonwriter 9y ago
      > Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation. Your example isn't one of them, though, and in fact the decision in it expressly holds out that the issues would have been different had the plaintiffs had challenged the unequal service rather than the tax. (Largely the same Court had only just before that handed down the “separate but equal” rule in Plessy v. Ferguson, forget original intent, Cumming has an incredibly strained handwave to get out from dealing with Plessy. > None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis I disagree; it's perhaps hard to support by a textualist analysis (but not that hard, even there), but it's not hard at all to support with an originalist one. The fact that the national political climate rather swiftly abandoned the intent of the brief moment of radical Republican triumphalism when the 14th Amendment was passed and imposed on the South by force and that subsequent decisions reflect that change in the mood is, of course, important to note.
- marcoperaza 9y ago
  I don't believe the 14th Amendment was interpreted faithfully by the courts in the years after its passage. The result that we're still dealing with today is a totally toothless jurisprudence of the amendment's Privileges and Immunities Clause, and more recently, logically strained attempts to remedy that by an expansive reading of the Equal Protection Clause.
- rayiner 9y ago
  Originalism, at least as most jurists use it now, means textual-originalism. You don't look to what Congress intended the law to mean, but what the text on the page says in light of meanings prevailing at the time the text was written. Whatever the framers of the 14th amendment meant, they used the phrase "equal protection" and not "equivalent protection" or "similar protection." A pure originalist might look to what the framers of the 14th amendment thought they were doing, but most people we would call originalists today would look to what the text of the 14th amendment meant at the time it was written. > If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed People often write things that mean something different than what the text says. (I'll point to FOSTA/SESTA as a contemporary example. 98% of the people who voted for it are thinking that its directed at sites actively promoting sex trafficking, but by its plain terms it applies to anyone "facilitating" sex trafficking, which is a much broader word.)
  - burkaman 9y ago
    That makes sense, but I don't think it explains why Supreme Court decisions can change so drastically. What changed between Cumming v. Richmond County Board of Education and Brown v. Board of Education? What changed between Pace v. Alabama and Loving v. Virginia? I can think of a few possibilities: 1. Pre-1950s courts were consistently incompetent and didn't understand the meaning of the 14th amendment. 2. Pre-1950s courts were consistently malicious and deliberately ignored the meaning of the 14th amendment. 3. Pre-1950s courts were correct about the meaning, and post-1950s courts have universally abandoned originalism and now apply their own invented meaning of the 14th amendment. 4. The meaning of the 14th amendment changed.
    - deleted 9y ago
      [deleted]
    - wnoise 9y ago
      My current conclusion is 2 and bit of 1 via overly deferent stare decisis. In fact, there was a short span of time immediately post civil war where civil rights were effectively enforced in the South. Reconstruction ended too soon.

burkaman 9y ago

Why do you agree with Brown, if original intent is what matters? At the time the amendment was passed, the legislature and courts were clearly happy with a separate but equal doctrine. The Morrill Act of 1890, for example, specifically allows separate but equal universities as an alternative to integrated schools. The Supreme Court also upheld segregated schools in cases like Berea College v. Kentucky. If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed, and therefore the law changed without any legislative action.

dragonwriter 9y ago
It's also possible everyone was interpreting what it legally required right but interpreting the material facts differently than the Brown court, and that the mistake prior to Brown was one of fact, not law. “Separate is inherently unequal”—in the specific context of public education—in Brown was a statement of an important factual conclusion underlying the decision.
- burkaman 9y ago
  Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation. Look at Cumming v. Richmond County Board of Education: https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Board_of_Education https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Boa... I think it's very important for people to understand how fluid the Supreme Court can be and how much it responds to public opinion, in choosing which cases to accept and deciding them. Look for example at the unanimous 180 between Pace v. Alabama and Loving v. Virginia. In Loving, the court declares "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis, and it doesn't turn on the particular facts presented to the court.
  - dragonwriter 9y ago
    > Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation. Your example isn't one of them, though, and in fact the decision in it expressly holds out that the issues would have been different had the plaintiffs had challenged the unequal service rather than the tax. (Largely the same Court had only just before that handed down the “separate but equal” rule in Plessy v. Ferguson, forget original intent, Cumming has an incredibly strained handwave to get out from dealing with Plessy. > None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis I disagree; it's perhaps hard to support by a textualist analysis (but not that hard, even there), but it's not hard at all to support with an originalist one. The fact that the national political climate rather swiftly abandoned the intent of the brief moment of radical Republican triumphalism when the 14th Amendment was passed and imposed on the South by force and that subsequent decisions reflect that change in the mood is, of course, important to note.
marcoperaza 9y ago
I don't believe the 14th Amendment was interpreted faithfully by the courts in the years after its passage. The result that we're still dealing with today is a totally toothless jurisprudence of the amendment's Privileges and Immunities Clause, and more recently, logically strained attempts to remedy that by an expansive reading of the Equal Protection Clause.
rayiner 9y ago
Originalism, at least as most jurists use it now, means textual-originalism. You don't look to what Congress intended the law to mean, but what the text on the page says in light of meanings prevailing at the time the text was written. Whatever the framers of the 14th amendment meant, they used the phrase "equal protection" and not "equivalent protection" or "similar protection." A pure originalist might look to what the framers of the 14th amendment thought they were doing, but most people we would call originalists today would look to what the text of the 14th amendment meant at the time it was written. > If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed People often write things that mean something different than what the text says. (I'll point to FOSTA/SESTA as a contemporary example. 98% of the people who voted for it are thinking that its directed at sites actively promoting sex trafficking, but by its plain terms it applies to anyone "facilitating" sex trafficking, which is a much broader word.)
- burkaman 9y ago
  That makes sense, but I don't think it explains why Supreme Court decisions can change so drastically. What changed between Cumming v. Richmond County Board of Education and Brown v. Board of Education? What changed between Pace v. Alabama and Loving v. Virginia? I can think of a few possibilities: 1. Pre-1950s courts were consistently incompetent and didn't understand the meaning of the 14th amendment. 2. Pre-1950s courts were consistently malicious and deliberately ignored the meaning of the 14th amendment. 3. Pre-1950s courts were correct about the meaning, and post-1950s courts have universally abandoned originalism and now apply their own invented meaning of the 14th amendment. 4. The meaning of the 14th amendment changed.
  - deleted 9y ago
    [deleted]
  - wnoise 9y ago
    My current conclusion is 2 and bit of 1 via overly deferent stare decisis. In fact, there was a short span of time immediately post civil war where civil rights were effectively enforced in the South. Reconstruction ended too soon.