LITMIR.BIZ

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Federal circuit court case which held that separate schools for blacks did not constitute a denial of “equal protection.” ²⁹ Passing on a New York statute of 1864, the New York court noted in 1883 that separate schools obtain generally in the states of the Union, and do not offend equal protection.³⁰ Thus Plessy was faithful to the framers’ design and rested on a long train of cases. We need to recall Huxley’s admonition that scientists “respect nothing but evidence” and believe that “their highest duty lies in submitting to it, however it may jar against their inclinations.” ³¹ Are we to demand less of judges?

      BROWN V. BOARD OF EDUCATION

      We should not leave the issue of segregation without taking note of Robert Bork’s view that the “result in Brown is . . . compelled by the original understanding of the fourteenth amendment’s equal protection clause.” ³² That is a remarkable conclusion. He himself recounts that “no one then imagined that the equal protection clause might affect school segregation.” ³³ Further, he observes that an “inescapable fact is that those who ratified the amendment did not think it outlawed segregated education or segregation in every aspect of life.” ³⁴ And he acknowledges “That the ratifiers probably assumed that segregation was consistent with equality, but they were not addressing segregation.” ³⁵ “The text itself,” he argues, “demonstrates that equality under law was the primary goal, for it alone was written into the text.” ³⁶ Thus his conclusion that “equal protection” overturned an established State institution—segregation—in the North as well as the South rests entirely on the fact that “equal protection” alone “was written into the text.” ³⁷ There was no need, however, to write segregation into the text because confessedly “no one then imagined that the equal protection clause might affect school segregation.” Why provide against the unimagined?

      To overturn the established State control of segregation, the silence of the framers is not enough; minimally there must be an express intent to do so. Pierson v. Ray makes the point.³⁸ It arose under §1983, which provided that “every person who deprives another of his civil rights” shall be liable. At issue was whether a judge was a “person” within the meaning of the Act. To abolish the common law immunity of judges from suits for acts performed in their official capacity, the Court required a specific provision. Before a State’s control over its own residents is curtailed, an equally exacting standard should be demanded.³⁹

      There is positive evidence that there was no design to impose segregation on the States. Segregated schools were deeply entrenched in the North. The climate of opinion is reflected by the objection of Senator James Harlan in 1860, when the District of Columbia schools were under discussion, to the association of colored children with white in the same schools.⁴⁰ Despite Senator Charles Sumner’s unflagging efforts to abolish segregated schools in the District,⁴¹ Congress maintained them. It can hardly be assumed that by the word equal Congress intended to require the States to adopt the very desegregated schools that it refused to institute in the District of Columbia. Indeed, James Wilson, chairman of the House Judiciary Committee, assured the House that the Civil Rights Bill did not require “that in all things . . . all citizens . . . shall be equal,” instancing that it did not require that “their children shall attend the same schools.” ⁴²

      Nor was “equal protection” conceived in all-encompassing terms. Ely considers the words “inscrutable.” ⁴³ Bork himself remarks that to view the words “equal protection” as “general” is “to leave the judges without guidance.” ⁴⁴ That is not his aim; he considers the “general” provision to be limited in terms of the primary purpose of the ratifiers—equality.⁴⁵ This is circular reasoning—equal is equal. History discloses a more limited purpose. David Donald, a Reconstruction historian, wrote, “the suggestion that Negroes should be treated as equals to white men woke some of the deepest and ugliest fears in the American mind.” ⁴⁶ George Julian, the Indiana Radical, reflecting widespread opinion, said, “the trouble is we hate the Negro.” ⁴⁷ Although Senator Sumner maintained that suffrage was “the only sufficient guarantee,” ⁴⁸ it was excluded from the Amendment; and the framers repeatedly rejected proposals to ban all discrimination.⁴⁹

      The fact is that the framers restricted “equality” to a few specified State-created rights. Let me begin with the Civil Rights Bill of 1866, the history of which is highly germane because the framers, without dissent, regarded the Fourteenth Amendment as “identical” with the Bill.⁵⁰ It was designed to protect the Bill from repeal by embodying it in the Amendment. Justice Bradley, a contemporary, declared that “the first section of the Bill covers the same ground as the Fourteenth Amendment.” ⁵¹ Senator William Stewart explained that the Bill was designed “simply to remove the disabilities” imposed by the Black Codes, “tending to reduce the negro to a system of peonage . . . It strikes at that, nothing else.” ⁵² To enable the freedmen to exist, the Bill banned discrimination with respect to the right to own property, to contract, and to have access to the courts,⁵³ rights that the Supreme Court, after canvassing the legislative history, described in 1966 as “a limited category of rights.” ⁵⁴ Samuel Shellabarger explained that the Bill secures “ equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races.” ⁵⁵ Leonard Myers stated that the Amendment was needed “to provide equal protection to life, liberty and property, to sue and be sued, to inherit, to make contracts.” ⁵⁶ Thus was “equal protection” wedded to the “limited category of rights” enumerated in the Civil Rights Bill.

      Because Bork overlooked the framers’ limited conception of “equality,” he concluded that “equality and segregation were mutually inconsistent,” leaving the courts free to choose between them.⁵⁷ The framers, however, as Bork notes, “assumed that equality and state-compelled separation of the races were consistent,” ⁵⁸ a perfectly rational assumption given their limited conception of “equal protection.”

      Judge Posner and Lino Graglia agree that Bork’s version of originalism is quite flexible, and Graglia notes that Bork defines originalism “in a way that leaves judges with overly broad discretion.” ⁵⁹ For my part, the framers’ incontrovertible exclusion of suffrage from the Fourteenth Amendment, for example, leaves no room for judicial “flexibility.” So too, Bork finds “majestic generalities” in the Constitution, which Graglia justifiably describes as “the first step toward an expansive view of judicial power.” ⁶⁰ Neither “due process” nor “privileges or immunities” were “majestic generalities”; each had an historically limited content. And equal protection, the legislative history discloses, was also meant to have limited scope.

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       Incorporation of the Bill of Rights in the Fourteenth Amendment

      INVOCATION of the Bill of Rights against the States is of fairly recent origin,¹ whether it be regarded within the older framework of “adoption” or the more recent theory of “incorporation.” ² From the First Amendment’s “Congress shall make no law” may be gathered that it was to apply exclusively to Congress, and it was held in Barron v. Baltimore ³ that the Bill of Rights had no application to the States, as in fact the First Congress, which drafted the Bill, had earlier made clear.⁴ Justice Harlan spoke truly in stating that “every member of the Court for at least the last 135 years has agreed that our Founders did not consider the requirements of the Bill of Rights so fundamental that they should operate directly against the States.” ⁵ And for a long time the Supreme Court found that the Fourteenth Amendment had made no change in this respect.⁶ By means of “selective” incorporation or adoption the Court has worked “a revolutionary change in the criminal process” ⁷ of the States. Some consider that

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