The Original Understanding and the Segregation Decision

Abstract

B EFORE setting out on the direct and noble march to the Court's conclusion in the Segregation Cases,' Chief Justice Warren took care to post a rear guard. The history of the adoption of the fourteenth amendment, to which reargument in these cases had been largely addressed, though casting some light, was, the Chief Justice said, "inconclusive" at best. "The most avid proponents of the postWar Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty." 2 Three pages later, as befits a commander in mid-advance, the Chief Justice, having made his dispositions, had no further thought for the rear: "In approaching this problem, we cannot turn the clock back to i868 when the Amendment was adopted, or even to i896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it I The writer was one of two law clerks to Mr. Justice Frankfurter during the October Term, 1952. At that term, the Court heard the first argument in the Segregation Cases and handed down the order for reargument; the cases were reargued and decided at the following term. The writer's interest in pursuing an investigation into the original understanding of the fourteenth amendment was prompted by the events which took place during his service at the Court.

Comparative approaches to constitutional history

“…For example, the US Supreme Court held in Brown v. Board of Education that the equality guarantee of the Fourteenth Amendment prohibited racial segregation in public schools. 3 It is doubtful that the drafters of the Fourteenth Amendment contemplated that it would invalidate segregated schooling (see Klarman 1995), but the original meaning of "equal" arguably sanctions such progressive application (see Bickel 1955).…”

The Costs of Unenforced Laws: A Field Experiment

“…Scholars have long debated the costs and benefits of enacting rights States cannot or do not want to enforce effectively (Bickel, 1955;Fallon, 2006;Kagan 2007). For instance, when international treaties provide social and economic rights, such as a right to education, to rest and leisure, a right to housing, they set out universal living standard goals without providing mechanisms to ensure actual implementation or public enforcement.…”

The Battle over Brown 's Legitimacy

“…The radical elements in the party, however, would agree to nothing less than language that was "sufficiently elastic to permit reasonable future advances." 13 Given the weightiness of the evidence against the view that the Framers and ratifiers of the Fourteenth Amendment specifically intended to do away with segregation, Bickel suggested that Chief Justice Warren "must" have been considering the broader notion of the original understanding "when he termed the [historical] materials 'inconclusive."' 14 Warren, however, clearly directed his statement regarding the indeterminacy of historical investigation to the specific intentions informing the Fourteenth Amendment.…”

“…13 Given the weightiness of the evidence against the view that the Framers and ratifiers of the Fourteenth Amendment specifically intended to do away with segregation, Bickel suggested that Chief Justice Warren "must" have been considering the broader notion of the original understanding "when he termed the [historical] materials 'inconclusive."' 14 Warren, however, clearly directed his statement regarding the indeterminacy of historical investigation to the specific intentions informing the Fourteenth Amendment. For the Chief Justice followed this comment with the observation that "[t]he most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States,"' while "[t]heir opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect."…”