Looking Back at Brown

Last week I participated in a Congress-to-Campus program sponsored by the Center for Democracy and Leadership, which sent me and former Rep. Barbara Vucanovich (R-NV) to Washington State University in Pullman, WA for three days. In the middle of our visit, we participated in a panel discussion sponsored by the Latah County (Idaho) Human Relations Commission on the 50th anniversary of the Brown v. Board of Education decision, and -- in a rare move by a former elected official -- I actually prepared remarks in advance, which became this week's column.

I had a great time in the Palouse, which is what they call the region which includes Pullman, WA and Moscow, ID, home of the University of Idaho, about 8 miles from WSU. It's a pretty remote area, and when you travel there, people appreciate it and are so nice, your teeth hurt. I also had a ball serving as Barb Vucanovich's caddy for three days; the lady is 82 and hasn't lost a step or any of her feistiness, either. She's the kind of Republican you'd expect to represent a district where both gambling (excuse me, gaming) and prostitution are legal.

Newspaper version available here.


'ACTIVIST JUDGES' DID THE RIGHT THING 50 YEARS AGO
East Valley Tribune, Apr. 25, 2004

This spring is the 50th anniversary of Brown v. Board of Education. To prepare for the various commemorations, let’s try a small thought experiment. Put aside the decision, in which the Supreme Court declared “separate but equal” unconstitutional in public education.

If we had no law on this issue today, would “separate but equal” be wrong? If we ever achieved the “ideal” of separate but equal education systems, would that violate your sense of fairness?

It may sound odd to call “separate but equal” an “ideal,” but that’s what it was. It was a theoretical goal, always cited but not actually worth achieving and never actually achieved. Given the realities of the world -- political power, limits on people’s willingness to spend tax money on others, and, of course, prejudice -- can you ever imagine a world where facilities would ever be, and would remain, equal? It just simply wouldn’t happen.

(If merely talking about “separate but equal” as a theory offends you, don’t complain to me. Take it up with Robert Bork -- after all, he wrote the book arguing that Brown was wrongly decided.)

Now, can you imagine a truly color-blind society? Sure, just as it’s possible to imagine separate-but-equal education systems. A truly color-blind society is devoutly to be wished; it’s theoretically possible, but it’s an ideal I doubt I’ll ever see in my lifetime. And you should be wary of people who want you to forget about what you know and see because what you can imagine is so pretty to think about.

The dream of a color-blind society is important, just as poetry is important, too. But you shouldn’t let the poetry of what might be prevent you from seeing what is, including how often times those most vigorous in championing the ideal may benefit the most from preserving today’s non-ideal status quo.

Here’s another thought. In the Brown decision, Chief Justice Warren writes that determining whether separate-but-equal is constitutional depends not on what the drafters of the Fourteenth Amendment thought in 1868, or even what the Supreme Court thought when it decided Plessy v. Ferguson in 1896, but rather on what the very general words of the Constitution mean in the present day.

Brown thus is the key battlefield in the ideological dispute over so-called “original intent” jurisprudence, which would have judges decide cases based on what the Founders meant -- for all time. You can’t rail against “activist” judges “remaking” the law without signing on to legal segregation, because men (it was still just men then) in 1868 and 1896 may have signed on to equality, but they certainly weren’t proposing that the races ever actually mix.

Without those “activist judges,” we would lock ourselves into the moral sensibilities of men who kept slaves -- and who also countenanced a political compromise that let slaveholders count three-fifths of their slaves for the purpose of grabbing power through apportioning seats in the House of Representatives.

Finally, it’s worth looking at the list of attorneys who participated in the Brown case, both the 1954 decision striking down educational segregation as well as the 1955 implementation decision (the “all deliberate speed” opinion). Arguing for integration and equality are great legal names like Spottswood Robinson, Jack Greenberg, William Coleman, and, of course, Thurgood Marshall. Arguing against were various state attorneys general -- major legal potentates of their time, but none remembered today.

Fifty years later, consider how we remember those who fought on each side in 1954. As America continues to wrestle with our racial legacy, with some using the ideal as a shield against progress, how do you want history to remember you five decades hence?