“. . . there would always have to be present in the city something possessing the same understanding of the regime as you, the lawgiver, had when you were setting down the laws.” 

—Plato, Republic 497c-d

The 50th anniversary of the landmark decision in Brown v. Board of Education invites a reexamination of that much celebrated—and justly criticized—decision. The decision should be celebrated for its holding: racially segregated schools undoubtedly violated the 14th Amendment. The decision is justly criticized because the holding was purchased at the price of the Constitution. Indeed, the Brown decision established Chief Justice Warren as the demiurge of a new universe of judicial activism that still dominates our constitutional jurisprudence.

Conservative reaction to this new universe was to call for a jurisprudence of original intent. This debate reached its apex in the 1980s when it erupted into a public dispute between Attorney General Edwin Meese and Justice William Brennan. The conservative reaction, however, has been a spectacular failure because, while the proponents of original intent adhere to the Constitution’s formalism, they utterly fail to understand its substance. Within the “four corners” of the Constitution, conservative legalists find only process without principles or purpose. Justice Scalia and Chief Justice Rehnquist for the most part make sound decisions in their adherence to the Constitution’s formalism, but they are unable to articulate the principles of the Constitution. On moral issues their formalism forces them to adhere to a simple majoritarianism as a substitute for moral principles that they cannot discern in the constitutional text. Harry Jaffa has provided a devastating critique of the jurisprudence of both Rehnquist and Scalia in his Storm Over the Constitution (1999).

Justice Thomas is, I believe, the only member of the Court who approaches an understanding of the substance of original intent—particularly in the area of equal protection. He is not reluctant to invoke the principles of the Declaration of Independence on appropriate occasions; and he certainly understands that the Constitution operates within the moral and political universe created by the Declaration.

Brown and Original Intent

One of the most curious aspects of Brown was Chief Justice Warren’s argument for the Constitution’s irrelevance in deciding the case. “In approaching this problem,” the Chief Justice famously argued, “we cannot turn the clock back to 1868” when the 14th Amendment was adopted. For Warren the chain of logic was simple: “at best,” the intentions of the framers of the 14th Amendment “are inconclusive.”

The 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.” 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.

Why the opponents enter the calculus is a mystery. After all, they lost! Warren does, however, admit that the original intent of the proponents—or at least the most avid ones—can be discerned. They “undoubtedly intended [the 14th Amendment] to remove all legal distinctions” among American citizens. We presume that the “most avid proponents” included the drafters of the Amendment. Yet the fact that the opponents had another vision seems, in Warren’s irrefragable logic, to cast doubt on any attempt to rely on the Constitution or original intent.

Since Warren’s legerdemain in Brown it has become an article of faith among liberal jurisprudes to argue that the intention of the framers of both the Constitution and the Reconstruction amendments cannot be known, and even if their intentions could be known they would be irrelevant. After all, if there were access to original intent then the idea that the Supreme Court is a “continuing constitutional convention” presiding over a “living constitution” would be untenable and the natural right principles of the founding might be credible. This would defy the Progressive “refounding” that informed Warren’s disingenuous argument for the irrelevance of the Constitution. From the Progressive point of view, the idea that the Constitution contains principles derived from natural law or natural right is the merest delusion, as superstitious in its own way as the belief in ghosts. Constitutional scholars frequently describe the Brown decision as “the beginning of a new ordering of our institutions of government,” a new order that gives the judiciary the principal task of “articulating the nation’s fundamental values and defending those values in the name of the Constitution.” In short, Brown begat a new constitutional order that adopts the name, but not the substance, of the Constitution.

The 14th Amendment and the Declaration of Independence

Yet it is not difficult to show that what Warren said was “undoubtedly” the intention of the framers of the 14th Amendment—”to remove all legal distinctions” between citizens—is accurate. Abraham Lincoln in his First Inaugural noted that “the intention of the law-giver is the law.” Until recent times, this has always been understood to be a necessary ingredient of constitutionalism and the rule of law. And it was undoubtedly Lincoln’s omnipresent spirit—his attempt to restore the principles of the Declaration of Independence to the Constitution—that animated the framers of the 14th Amendment. Indeed, references to the Declaration in the debates were so frequent that it is impossible not to believe that its principles somehow provided the authoritative paradigm for the Amendment. On May 8, 1866, Thaddeus Stevens, a prominent member of the Joint Committee on Reconstruction, gave eloquent expression to an oft-repeated theme in the debates:

I beg gentlemen to consider the magnitude of the task which was imposed upon the committee. They were expected to suggest a plan for rebuilding a shattered nation—a nation which though not dissevered was yet shaken and riven…. It cannot be denied that this terrible struggle sprang from the vicious principles incorporated into the institutions of our country. Our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now.

Thus for the Republicans, Reconstruction should look forward to a completion of the founding. The founding was incomplete because of the compromises with slavery. Insofar as the Constitution tolerated the continued existence of slavery, it remained an incomplete expression of the principles of the Declaration. Compromise had been necessary to secure a national government, and the most thoughtful Federalists understood that without a strong national government the prospects of ending slavery would always be remote. Hence the prudential compromises in the Constitution designed to protect slavery were actually in the service of eventual abolition. And, as Harry Jaffa has frequently remarked, it is impossible to distinguish the principles of the Constitution from its compromises without reference to the Declaration. This was undoubtedly the view of the Republicans in the 39th Congress, who were not only “the most avid proponents of the post-War Amendment” but the victors as well.

If the central principle of the Declaration is true, that “all men are created equal,” then it necessarily follows that among human beings there are no natural rulers and thus no man can be ruled without his consent. It also follows that in the absence of natural rulers each individual is possessed of the natural right to life, liberty, and the pursuit of happiness. These rights necessarily belong to individuals because they are inherent in the principles of human nature, the first principle of which is natural human equality. Equal protection of the laws means first and foremost that every individual is guaranteed the equal protection of equal rights. The idea of man as it appears in the Declaration has no color or race. From the point of view of the Declaration, race is an accidental, not an essential feature of human nature; and the rule of law, whatever else it may entail, prohibits arbitrariness in its classifications. Since race is an arbitrary category, it is excluded ipso facto by the rule of law and equal protection of the laws. Justice John Marshall Harlan’s justly celebrated dissent in Plessy v. Ferguson (1896), with its invocation of a “colorblind” Constitution, was perfectly consistent with the central principle of the Declaration and the 14th Amendment.

Plessy and Brown

 It remains a shocking feature of the Brown decision that the Chief Justice never deigns to mention Harlan’s famous dissent. Simple justice seemed to demand such recognition. I believe Warren’s omission was intentional: he simply did not agree with Harlan’s conclusion that the Constitution was colorblind, and in the end the Brown reasoning rested on the same ground of constitutional interpretation as the majority opinion in Plessy!

When the Brown decision was handed down, the lead editorial in the New York Times celebrated the demise of Plessy and the “separate but equal” doctrine. Finally, the editorial announced, Justice Harlan’s view that the Constitution is “colorblind” had been vindicated. “There was not one word in Chief Justice Warren’s opinion,” the editorial alleged, “that was inconsistent with the earlier views of Justice Harlan.” But the editorial was egregiously mistaken. Not only was the “separate but equal” doctrine not overturned, it was given new life by Brown.

In his opinion in Brown, the Chief Justice had argued that

to separate [school children] solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone…. Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected. We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. [Emphasis added.]

Justice Henry Billings Brown, who wrote the majority opinion in Plessy, had argued that a legal separation of the races did not imply a relationship of superior and inferior: any “assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority…is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” The Brown decision thus based its findings on the same ground of interpretation as Plessy. It differed in its interpretation of facts, not in its principle of constitutional construction.

According to Brown, Plessy was only in error insofar as it was inconsistent with the authority of modern psychology, which had demonstrated that a “feeling of inferiority” is a fact of inferiority from the point of view of equal protection analysis. Modern psychology had proven that such feelings were generated in segregated grammar schools, but no evidence was adduced to show the same “feelings” were produced by other segregated settings. Shortly after the Brown decision, the Court invalidated segregation in a variety of public places, including golf courses, beaches, buses, and parks. These were per curiam decisions citing Brown as the authority. But where were the psychological studies that demonstrated that segregated golf courses and beaches generated “feelings of inferiority?” Was it merely assumed? Or had the Court seen the futility of relying on modern psychology? Brown was still the authority and the Brown opinion had, by a wholly unnecessary and tortured argument, replaced the authority of the Constitution with the authority of modern psychology. Equal protection rights—at least in the context of grammar school education—were now wholly subjective, depending upon a “feeling of inferiority.”

Many critics have pointed out that the “modern psychology” that Warren relied upon to craft his opinion was not as authoritative as he may have believed. The evidence simply did not support the conclusion that racial segregation produced “feelings of inferiority” on the scale alleged by Kenneth Clark’s doll experiments. In fact, Clark’s own evidence indicated that black children in nonsegregated Massachusetts schools had acquired such “feelings” to a greater extent than black children in some Southern segregated schools. Justice Clarence Thomas rightly noted in his concurring opinion in Missouri v. Jenkins (1995) that “social science research…certainly cannot form the basis upon which we decide matters of constitutional principle.” The Brown decision, according to Justice Thomas, “did not need to rely upon any psychological or social science research in order to announce the simple, yet fundamental truth that the government cannot discriminate among its citizens on the basis of race.” In fact, reliance on “the theory that black students suffer an unspecified psychological harm from segregation that retards their mental and educational development…not only relies upon questionable social science research rather than constitutional principle, but it also rests on an assumption of black inferiority.”

In his dissenting opinion in Grutter v. Bollinger (2003), the Michigan law school affirmative action case, Thomas pointed out another significant danger in relying on social science evidence. Thomas reports that a growing body of social science evidence purportedly shows “that racial (and other sorts of) heterogeneity actually impairs learning among black students.” Does this mean that Brown should be overruled on the basis of the latest and most authoritative social science evidence? Thomas correctly concludes that the Constitution should be restored to its rightful place as the touchstone of equal protection analysis. A “colorblind” Constitution provides objective ground for equal protection rights and avoids the subjectivism of rights contained in the Brown analysis. In the years between Plessy and Brown, the ideal of a “colorblind” Constitution, although never adopted by a majority of the Court, had served as one of the central tenets of liberal constitutionalism. Indeed it was a favorite refrain of Thurgood Marshall who appeared in many cases—including Brown—advocating the end of racial segregation.

Indeed, the Brown Court could have overruled Plessy on straightforward equal protection grounds. Brown could easily have adopted strict scrutiny analysis as the ground of its equal protection jurisprudence. Since school segregation involved racial classifications, there is simply an a priori assumption that race as an accidental feature of the human persona can play no legitimate role in constitutional democracy. This is the core of what is meant by equal protection of the laws. This kind of decision would have maintained its focus on the 14th Amendment and the principles of the Declaration that informed it. Since the states could show no compelling reason for segregation in public schools, the mere fact of racial classification would invalidate the state actions. By the time of Brown the authority of Plessy had been seriously eroded and was ready to be overturned on the basis that all “legal distinctions” based on race were a violation of equal protection. The Court would have been compelled to argue that Plessy had been wrongly decided in 1896 as a matter of constitutional interpretation, not as a matter of inadequate knowledge of psychology.

Brown and the Rebirth of “Separate But Equal”

The Brown decision stands for the proposition that racial classifications offend the Constitution only when they create feelings of inferiority. Presumably racial classifications that are intended to benefit “discrete and insular” minorities do not create such feelings and would be allowed under Brown. Defenders of affirmative action and other forms of racial preferences argue that “benign” racial classifications do not carry the imputation of racial stigma, and that all non-stigmatizing racial classifications should survive under Brown. Thus did Brown reinvigorate Plessy‘s “separate but equal” doctrine. The continued vitality of “separate but equal” was made abundantly clear in Justice Harry Blackmun’s opinion in the 1978 affirmative action case of Regents v. Bakke:

I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful…. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.

Justice Blackmun, of course, could well have said “separately” instead of “differently” without changing his meaning.

Indeed, it has become orthodoxy among liberal constitutionalists to argue that adherence to the idea of a colorblind Constitution was a mistake. “Colorblindness” we are told, was all along a “myth” or, at best a “misleading metaphor.” The principal reason for the liberal volte face is summarized by Harvard’s Laurence Tribe who writes that “judicial rejection of the ‘separate but equal’ talisman seems to have been accompanied by a potentially troublesome lack of sympathy for racial separateness as a possible expression of group solidarity.” Another prominent legal scholar admits that while the idea of a colorblind Constitution “achieved great victories in the past, it has now become an impediment in the struggle to end racial inequality.” The reason is that the invocation of colorblindness will do nothing to challenge “white attitudes or recognize a role for black self-definition.”

Racial group solidarity does require something like the separate-but-equal doctrine. The colorblind Constitution necessarily focuses on the rights of individuals rather than the rights that attach to racial or ethnic classes. Group solidarity, on the other hand, requires racial class consciousness and separate-but-equal. The once despised but now fashionable doctrine is the perfect vehicle for inculcating such consciousness.

There has even been a concerted effort to undermine the authority of Harlan’s dissent by imputing racist motives to his championing of a “colorblind” Constitution. A colorblind Constitution, we are assured, would merely perpetuate continued white dominance. The colorblind Constitution is merely a subterfuge—even a “metaphor”—for white supremacy. Justice Ruth Bader Ginsburg in her dissenting opinion in Adarand v. Pena (1995)—a decision that invalidated a federal racial preference program—argued that Justice Harlan’s dissent was tainted or insincere. Justice Harlan’s invocation of a colorblind Constitution is well known:

Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

Less well known is the passage that Justice Ginsburg quotes to discredit Harlan:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.

Ginsburg does not deign to discuss or analyze the passage, believing presumably that it speaks for itself. I believe, however, that this statement lends even more credence to the idea of a colorblind principle of constitutional construction. Harlan distinguishes here between power and right. The white race is dominant and will probably dominate for the foreseeable future. This is a fact. What is remarkable, however, is that Harlan maintains that this fact can never be expressed in the Constitution. The white race will prosper only if it “holds fast to the principles of constitutional liberty”—including the principle of colorblindness. Even though society may be infused with racial distinctions, the Constitution cannot properly be the vehicle of racial class dominance because it is the individual, not the racial class, that is comprehended in the Constitution’s equal protection clause. Justice Harlan would have been utterly foolish if he had said that society is colorblind; but it was eminently proper for him to advocate colorblindness as the central principle of equal protection in the Constitution. Justice Ginsburg, in her haste to condemn the principle of a colorblind Constitution that serves as an impediment to racial preferences and set-asides, seems not to have been aware of other less famous passages of Harlan’s dissent.

“The destinies of the two races, in this country,” Harlan wrote, “are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law…. The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race.” Persistent racial classifications of the kind that Justice Ginsburg advocates undermine the racial harmony and justice that were promised by the equal protection clause.

Other critics have pointed to Justice Harlan’s passage comparing the treatment of black American citizens with Chinese aliens as further evidence of his insincerity. Harlan wrote that

there is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union…are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.

The rhetorical power of this passage resides in the distinction between citizens and non-citizens—between blacks and Chinese, who were prevented by contemporaneous law and treaty from becoming American citizens. Whatever Harlan’s private attitudes might have been about the Chinese, the contrast he draws is poignant. It demonstrates that laws distinguishing among fellow citizens on the basis of their race are arbitrary, undermining not only the rule of law, but also the kind of friendship that makes possible real citizenship.

The Civil Rights Act of 1964 and Its Transformation

It should be something of a national scandal that the once justly decried doctrine of separate-but-equal has made its way back to respectability. Some scholars have argued that the Civil Rights Act of 1964 is the legislative ratification of the Brown decision. I believe that this is incorrect; it was an expression of Justice Harlan’s “colorblind” Constitution and a perfect expression of what the framers of the 14th Amendment meant by “equal protection of the laws.” It prohibited discrimination against individuals on the basis of race, ethnicity, and religion and embodied equal opportunity as its principle of distributive justice—the equal protection of equal rights. It demanded that natural talents and abilities, not artificial legal distinctions based on race or ethnicity or any other form of caste, should be the measure of an individual’s success. The explicit language of the act insisted that rights belong to individuals, not racial classes or ethnic groups. The rule of law—as the rule of reason and the rule of equal protection—demanded no less.

But these aspirations of the Civil Rights Act were almost immediately deemed to be an inadequate basis for progress. In June 1965, President Lyndon Johnson set the tone for a different vision of civil rights. “Freedom is not enough,” he proclaimed.

It is not enough just to open the gates of opportunity… We seek not just freedom…, not just equality as a right and a theory but equality as a fact and equality as a result…. To this end equal opportunity is essential, but not enough.

The sweep of this pronouncement is breathtaking. If equal opportunity is not enough, then some form of unequal opportunity is necessary to achieve equality of result. If freedom is not enough, restrictions on the freedom of some are necessary for the advancement of others—those who came to be known in affirmative action parlance as “specially protected classes” or “preferred classes.” Courts and administrative agencies set about implementing this new vision of equal rights, which was now said to require racial classifications in order to succeed. The watchword was class rights based on race rather than individual rights.

The racial genie, having finally been confined by powerful legal restraints in the Civil Rights Act of 1964, was released again. Many believed that the genie had changed its nature and could now be employed as a benevolent force. But that was a naïve and dangerous assumption. The racial genie tells us to forget the principles of the Declaration. It insists that race is not accidental, but an essential feature of the human persona. It urges us to embrace race openly and honestly—to make it the basis for an administrative state that promises genuine racial progress. Thus at almost the 11th hour, the principle of equal opportunity was abandoned: the admitted progress made under its banner had been too slow and was incomplete. It was time to abandon the old principles in favor of something new—not a colorblind Constitution, but a race-conscious one.

There is no way to say that rights belong to classes without discarding the notion that the first object of civil society is the equal protection of equal rights. If rights belong to classes and not to individuals, then equal protection of the laws is impossible. Class considerations abstract from the individual and ascribe to him class characteristics that are different—and necessarily unequal—from those of individuals outside the class. Class claims are claims of inequality, not equality. Likewise, class remedies, such as affirmative action and racial set-asides, assume that all members of the “monolithic white majority” are guilty of racial class injuries; and all members of “discrete and insular” minorities are victims of such injuries. But this is pure fiction. As Justice Thomas noted in his concurring opinion in Missouri v. Jenkins (1995): “It goes without saying that only individuals can suffer from discrimination, and only individuals can receive the remedy.” Class remedies will afford benefits to some who have not been injured and trammel the rights of some who have not perpetrated injuries. This lack of correspondence between rights and remedies violates the rule of law by making the assignment of rights and remedies simply arbitrary.

In Regents v. Bakke (1978), a minority of four members of the Court, led by Justice William Brennan, argued that the Civil Rights Act of 1964 was designed to be a class remedy for racial class rights, and that since “whites as a class” need no protection from the majoritarian political process, no individual in that class should have standing under the Act. As a member of the white majority that passed the law, the plaintiff in Bakke had, in effect, imposed the injury upon himself, and consequently had no standing to challenge the law’s racial preferences. This line of reasoning briefly achieved majority status in two subsequent cases, but was decisively rejected in the 1995 case of Adarand v. Pena.

In Adarand a majority of the Court, led by Justice Sandra Day O’Connor, held that any law or policy based on a racial classification—whether intended to harm or to benefit racial minorities—must be subjected to “strict scrutiny.” Under strict scrutiny analysis, no racial classification is permitted unless it can be proven to further a “compelling state interest.” The majority in Adarand was badly split on the application of the strict scrutiny doctrine, Justice O’Connor arguing that racial classifications might survive in rare instances, Justices Thomas and Scalia holding that such classifications could never pass muster. Thomas cited the Declaration as support for his much maligned but correct conclusion that there is a “moral [and] constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.”

Critical Mass and Racial Quotas

In Gratz v. Bollinger, one of the two affirmative action decisions handed down in summer 2003, the Supreme Court struck down the University of Michigan’s undergraduate affirmative action admissions program because it employed racial quotas. Writing for the majority, Chief Justice Rehnquist argued that the admissions policy, “which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single ‘underrepresented minority’ applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity…that [the University] claim[s] justifies [its] program.” (One ingredient of strict scrutiny analysis is that even if there is a compelling state interest in considering race, the use of racial classifications must be minimal or “narrowly tailored.”) Rehnquist, it is worth noting, did not concede in this opinion that the University had a compelling interest in promoting racial diversity. It was not necessary to address that question because it was clear that the University operated a quota system that was not narrowly tailored to achieve its asserted interest.

Writing for the majority in the companion case, Grutter v. Bollinger, Justice O’Connor reached back 25 years for her authority, to an argument made by Justice Lewis Powell in Bakke. Powell had argued, based on the First Amendment’s protection of “academic freedom,” that universities have a unique interest in promoting diversity among students. No other justice in 1978 had joined in this opinion and its authority seemed to be limited. But Justice O’Connor was not deterred; she asserted that the University of Michigan Law School does indeed have a compelling interest in promoting a diverse student body through racial preferences. She did not attempt to expound the necessity of diversity in law schools, merely deferring to the good-faith representations of University officials that it enhances education. Such deference to state actors is virtually unheard of in strict scrutiny analysis. But Justice O’Connor reasoned that “universities occupy a special niche in our constitutional tradition,” and that equal protection considerations must be subordinated to this privileged position. Based on this aspect of her opinion, there is some ground for arguing that the ruling will be limited to educational institutions.

The majority in Grutter also held that the Law School admissions policy did not employ a racial quota system, but sought to achieve a “critical mass” of “underrepresented minority students.” Unlike a “racial quota,” a “critical mass” does not seek “outright racial balancing,” which would be “patently unconstitutional.” A “critical mass” is defined as a sufficient number to insure that “underrepresented minority students do not feel isolated or like spokespersons for their race.” (The University, in fact, may not admit minority students for the purpose of having a minority point of view represented, because that would be “impermissible stereotyping.” A “critical mass” can only be used to dispel “racial stereotypes” by demonstrating that there are “a variety of viewpoints among minority students.”)

University of Michigan officials said that a “critical mass” would be anywhere between 12 and 20 percent of the student body. Although there is no single fixed number involved, dissenters pointed out that “critical mass” is merely a quota in disguise. Indeed, Justice Thomas contended that the distinction between the two was “purely sophistic.” Justice Antonin Scalia noted that the “critical mass” justification for racial discrimination “challenges even the most gullible mind.” At any rate, in one of the most bizarre turns in an already strange opinion, Justice O’Connor said that the University could employ these “racial preferences” only for another 25 years. By that time, she claimed, the playing field will have been leveled and preferences will no longer be necessary.

Forty years ago, skeptics were assured that affirmative action was only a temporary measure, and that it would end when genuine equal opportunity had been achieved. But everyone knew–or should have known–that once racial class entitlements are established, they are not easily abolished.

Bork on Brown

 Robert Bork is one of the foremost conservative proponents of original intent jurisprudence. He concedes that the holding in Brown was correct but insists that Warren’s reasoning was inadequate—so far so good. Although Bork argues that the intent of the framers of the 14th Amendment is the touchstone for constitutional analysis, he maintains that the framers got it wrong! According to Bork, they believed that segregation and equality could co-exist, and it was never their intent that equal protection would lead to the demise of racial segregation. Experience, however, showed the utter incompatibility of segregation and equality. If it were possible to make facilities equal, then the framers’ intent would be binding. But, alas, it was not. The Court in Brown therefore had to choose between segregation and equality. Since the 14th Amendment mentions “equality” (or more precisely “equal protection of the laws”) but not segregation, the choice of “equality” was dictated by the plain language of the Amendment. It was thus necessary to reject the framers’ intent. Plessy, in Bork’s irrefragable logic, was therefore consistent with the framers’ intentions, though its reasoning was mistaken because it repeated the framers’ mistakes. The framers intended “separate but equal,” but experience had shown their intentions to be unrealistic and unworkable and therefore not a reliable guide to constitutional construction. There has never been such a judicial activist as Judge Bork, after all.

How does Bork know that the framers of the 14th Amendment intended segregation to be compatible with “equal protection of the laws?” Simple. Otherwise they would have passed laws abolishing segregation in the states. Absent such legislation, we are authorized to conclude that they intended to allow the states to maintain segregated public facilities—including schools. Bork thus uses the same logic that Chief Justice Taney used in the Dred Scott case about the intentions of the framers of the Declaration of Independence. It is true, Taney averred, that the plain language of the Declaration’s proclamation that “all men are created equal” is capacious enough to include the whole human family. But it cannot be left at the plain language. More instructive is what the framers did, rather than what they said. Had they meant what they plainly said, they would have emancipated slaves immediately; but since slavery was not abolished, their plain intent—as proven by their deeds—was to exclude blacks from the Declaration’s otherwise inclusive language.

Lincoln’s devastating critique of Taney’s argument is equally applicable to Bork. Among a host of other considerations, both Bork and Taney believe that the Declaration has no constitutional relevance; indeed, that the principles of the Declaration are incompatible with constitutional order. In Bork’s view, the natural rights philosophy of the Declaration, more than anything else, has led to the corruption of the moral universe that the framers had inherited. In his June 1857 speech at Springfield, Lincoln remarked that Chief Justice Taney argues that the authors of the Declaration

did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another… They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit.

This passage adumbrates the statesmanship of Lincoln and the framers—including the framers of the 14th Amendment. It is necessary to establish the principle first and then, as circumstances permit, enforce the principle. As Lincoln might have said, the thought is always father to the deed. The fact that the framers of the 14th Amendment did not end segregation all at once says nothing about their intentions, any more than the framers’ failure to abolish slavery all at once bears on their intentions. Lincoln’s view was that the framers had done all they could under the circumstances by incorporating into the Constitution the principles of the Declaration, notwithstanding that they were forced to compromise those principles in part.

Within seven years of the 14th Amendment’s ratification, Congress passed the sweeping and comprehensive Civil Rights Act of 1875—subsequently invalidated by the Supreme Court—which outlawed racial segregation in most public places. Many have argued—in the spirit of Lincoln’s Cooper Union Speech—that the passage of this act is a reliable representation of the intentions of the framers of the 14th Amendment who sought to remove “all legal distinctions among ‘all persons born or naturalized in the United States’.” But this notion of constitutional statesmanship—the elimination of as much evil as possible, while possible, without destroying the basis for the elimination of further evil—is as alien to Bork as it was to Taney.

In their view, the failure to eliminate all the evil at once is proof that there was never any intention to eliminate any evil. Segregation proved to be an intractable problem. The idea that Congress could have eliminated it by legislation in 1868 is the merest fantasy. But the 14th Amendment did establish the principle whereby segregation could be eliminated when circumstances allowed. That it would take nearly a century probably would not have surprised—or deterred—the Amendment’s framers. Absent the principles embodied in it, there would be no moral imperative to eliminate race-based discrimination—or even slavery! The classification of citizens on the basis of race is utterly incompatible with the natural right principles that animated the founding and the formal completion of the founding in the 14th Amendment.

In his powerful dissent in Grutter, Justice Thomas noted that “the Constitution abhors classifications based on race…because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Thomas concluded that the majority decision upholding a race-based affirmative action program “has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause.” It would be difficult to provide a more succinct statement of the intentions of the framers of the 14th Amendment. It is unfortunate, indeed reprehensible, that this principle was not the foundation of the landmark decision in Brown v. Board of Education.