No Brown vs. board of education
Michael Snider
WI The supreme court in Brown vs. Board of Education ruled the other
way?
Jonathan Edelstein
In soc.history.what-if Michael Snider <sanl...@earthlink.net> wrote:
: WI The supreme court in Brown vs. Board of Education ruled the other
: way?
In that case, school desegregation would be part of the Civil Rights Act
of 1964. Possibly the civil rights movement would be able to force some
states to desegregate before then, but not the Deep South.
The results of this would be mixed. The most obvious negative result, of
course, is that desegregation in at least some states would be delayed for
ten years. The most obvious positive result is that when desegregation
did occur, it would be the result of a majoritarian consensus and could
nor be attacked (as the _Brown_ decision still is) as a piece of elitist
judicial legislation.
Other results: The current experiments in the inner cities with
segregated schools (supposedly designed to meet the needs of young
minority males/females) would not face a constitutional impediment - all
they would need to do would be apply to Congress for an exemption. There
also _may_ be less reliance on the courts by the civil rights movements of
the 50s and 60s (I say "may" because you haven't told me if the _other_
civil rights decisions of the Supreme Court also went the other way). In
addition, militant movements of the late sixties such as the Black
Panthers would be somewhat stronger. These results are either positive or
negative, depending on your point of view.
And finally, there would be less authority for the admission of dubious
psychological evidence in court.
Jonathan I. Edelstein in The Bronx, NY
"Who is wise? He who learns from all."
-Ben Zoma, Pirkei Avot 4:1
Nick Eden
On Sat, 06 Dec 1997 22:15:01 -0800, Michael Snider
<sanl...@earthlink.net> wrote:
>WI The supreme court in Brown vs. Board of Education ruled the other
>way?
What if people posting to these newsgroups remembered that the
Internet spans the world? I have no idea what Brown vs. Board of
Education was about, though I figure it's probably either teaching
evolution or integrated schooling. Would it be that hard to give the
full question?
-------------------------------------------------------
Moon Wars! Gloranthan Roleplaying with Star Wars Rules
http://www.pheasnt.demon.co.uk/Moon2.html
Spamblock: Replace DOT with . to reply
David Tenner
In article <66ej89$s...@nnrp4.farm.idt.net>, Jonathan Edelstein <jona...@IDT.NET> wrote:
>In soc.history.what-if Michael Snider <sanl...@earthlink.net> wrote:
>
>: WI The supreme court in Brown vs. Board of Education ruled the other
>: way?
First of all, I think the chances were negligible that the Supreme Court
would uphold state-mandated segregation in 1954. The separate-but-equal
doctrine had already been undermined by a series of cases involving
graduate school education (note that the Court prudently started with the
least controversial level of education). The real question in 1954 was
whether the decision was going to be unanimous. That it was, without even
a separate concurrence, was seen as Warren's real triumph, not the
craftsmanship of the decision, which law professors have been criticizing
for decades.
If nothing else, the Cold War--and the argument that US racial
discrimination was helping Soviet and Communist Chinese propaganda in the
Third World--guaranteed that segregation would be struck down.
>
>In that case, school desegregation would be part of the Civil Rights Act
>of 1964. Possibly the civil rights movement would be able to force some
>states to desegregate before then, but not the Deep South.
>
>The results of this would be mixed. The most obvious negative result, of
>course, is that desegregation in at least some states would be delayed for
>ten years. The most obvious positive result is that when desegregation
>did occur, it would be the result of a majoritarian consensus and could
>nor be attacked (as the _Brown_ decision still is) as a piece of elitist
>judicial legislation.
There was actually very little school desegregation brought about by Brown
in the first ten years after the decision. It was only after the Civil
Rights Act was passed that substantial integration was accomplished.
Gerald N. Rosenberg emphasized this fact in his book, _The Hollow Hope:
Can Courts Bring About Social Change?_ (I think it was published by the
University of Chicago Press in 1991.) Rosenberg argues that those who see
great benefit and those who see great harm in judicial activism are both
wrong. He thinks that in the absence of support from the other branches of
government, the judiciary can't bring about much change, either good or
bad. (He says this is even true of abortion--he notes that more and more
states were legalizing abortion _before_ Roe v. Wade.)
A counter-argument is that it was precisely Brown that brought about the
civil rights marches and demonstrations, increased public attention to
civil rights, and ultimately the Civil Rights Act itself. Rosenberg denies
this. He says that there was actually more press space devoted to civil
rights and race relations before Brown than for a number of years
afterwards. He claims that Brown was _not_ what led to the boycotts,
marches, etc.--in fact he quotes Martin Luther King as warning against
excessive reliance on the courts. He also says that in the debates on the
Civil Rights Act of 1964, very few Representatives or Senators used the
argument, "We're only enforcing what the Supreme Court has said is the
law."
Unfortunately, I don't have his book right here. I recall that when I read
it, I wasn't entirely convinced. First of all, it's not just a question of
the Supreme Court doing nothing (although I suppose they could have evaded
the question indefinitely--they didn't declare anti-intermarriage laws
unconstitutional until 1967!). The question is, What if the court had
positively stated that segregation was a reasonable exercise of state
police power? Even if they had added, "Congress could nevertheless outlaw
it" (which would be pure dictum anyway) Congress might have been more
hesitant to do so. Secondly, I don't think Rosenberg pays enough attention
to the way that Southern _resistance_ to Brown may have galvanized national
opinion against the Southern segregationists. (I think he did pay some
attention to that possibility, but dismissed it too easily.)
>Other results: The current experiments in the inner cities with
>segregated schools (supposedly designed to meet the needs of young
>minority males/females) would not face a constitutional impediment - all
>they would need to do would be apply to Congress for an exemption. There
Racial segregation is generally not the issue with these schools, anyway,
because they are usually in overwhelmingly black inner-city areas. It's
the proposed sex segregation that causes the lawsuits, IIRC.
>also _may_ be less reliance on the courts by the civil rights movements of
>the 50s and 60s (I say "may" because you haven't told me if the _other_
>civil rights decisions of the Supreme Court also went the other way). In
As I mentioned, Rosenberg quotes Martin Luther King as warning against
excessive reliance on the courts.
>addition, militant movements of the late sixties such as the Black
>Panthers would be somewhat stronger. These results are either positive or
>negative, depending on your point of view.
>
>And finally, there would be less authority for the admission of dubious
>psychological evidence in court.
The role of psychological findings in Brown has been grossly overstated.
They were just cited in one sentence (with a footnote) as "modern
authority" confirming the lower court's finding that segregation tended to
produce feelings of inferitority in black children. The Supreme Court's
decision did not depend on the psychological evidence. (The decision, it
is true, emphasized the importance of education. Yet when cases dealing
with segregation on golf courses, etc., came before the court, the
segregation laws were invalidated in one-sentence per curiam decisions on
the authority of Brown, even though they had nothing to do with education.)
The use of social science evidence by the Supreme Court goes back way
before Brown, anyway--and even back before the days of the "Brandeis
brief." There was a case from the 1790's when a justice cited Adam Smith's
_The Wealth of Nations_!
David Tenner
ten...@ibm.net
Michael Snider
Robert Fruge wrote:
>
> Nick Eden wrote:
> >
> > What if people posting to these newsgroups remembered that the
> > Internet spans the world? I have no idea what Brown vs. Board of
> > Education was about, though I figure it's probably either teaching
> > evolution or integrated schooling. Would it be that hard to give the
> > full question?
>
> that although the vast majority of us are Americans, a lot aren't and tend to
> forget that our "what if's" might be mystifying to lare numbers of other
> people on line.
>
> But insteadof trying to figure out what the question might pertain to, why
> not try asking a few of your own? Depending on the country, how
> about:
>
> BRITAIN: What if Gladstone had managed to get the Home Rule Bill through?
> FRANCE: What if the "Henry V" had accepted the Tri-Color?
> GERMANY: What if Freidrich-Wilhelm had accepted the imperial crown in 1848?
> ITALY: What if Bourbons had remained in control of Naples?
> RUSSIA: What if Alexander II had had children?
> JAPAN: What if the Tokogawas had not been able to expel the Jesuits?
> CHINA: What if Chiang Kai-shek had defeated the communists in the 1930s?
> INDIA: What if India had not been partioned?
>
> and this is just the beginning.......
MS : Thanks for your suggestion. I thought I'd pick up on the WI about
the Bourbons remaining in control of Naples, Garibaldi's Thousand being
defeated. With this happening, southern Italy is less neglected with
Naples remaining a capital city. This would probably also have an affect
on immigration to the Americas,although if the natural disasters of OTL
happen than it would happen just the same. Now if Naples manages to
obtain colonies in North Africa, it would be interesting. It probably
would have little chance at landing Morocco as French Algeria is in the
way, but it could have a chance at Tunisia and Libya. ( When did the
British get control over Egypt ? ) Maybe some Greek islands under
Turkish control. Now what would be its relations with Italy ? I wonder
if , with Rome less centrally located, the Italian capitol would not
remain in Turin. That would make sense. Most likely the Papal States
would fall to the Italian state, but would the Neapolitans send a force
to defend it ? What would be its role in the geopolitical conflicts of
Europe ? It would probably stay out of World War I as Spain did,
although OTOH it would have something to gain from the dissolution of
the Ottoman Empire, as would Italy. Now if it wound up getting in on the
side of the Central Powers, would the monarchy collapse in WWI as many
others did ? And would Italy unify after the war ? I would appreciate
responses. And thanks to Mr. Fruge ( why the Earth Link org with an AOL
address ? ) for posting this. I'll have to think about his other
possibilities.
Robert Fruge
William Hughes
I rather think that things would have developed pretty much the same. The
decision did not have an immediate affect on segregation in the south or the
north. Integration in public facilities and housing, as decreed by civil
rights laws, came before integration in public schools. In fact, it was
almost twenty years before the impact of the decision was felt. Within that
time, there would have plenty of opportunity to force the court to revisit
the issue.
Michael Snider wrote in message <348A3E...@earthlink.net>...
>WI The supreme court in Brown vs. Board of Education ruled the other
>way?
Jonathan Edelstein
In soc.history.what-if David Tenner <ten...@ibm.net> wrote:
: First of all, I think the chances were negligible that the Supreme Court
: would uphold state-mandated segregation in 1954. The separate-but-equal
: doctrine had already been undermined by a series of cases involving
: graduate school education (note that the Court prudently started with the
: least controversial level of education). The real question in 1954 was
: whether the decision was going to be unanimous. That it was, without even
: a separate concurrence, was seen as Warren's real triumph, not the
: craftsmanship of the decision, which law professors have been criticizing
: for decades.
This raises several intriguing possibilities.
First of all, suppose that the Brown decision indeed came down in 1954,
but as a 7-2 decision rather than a unanimous one (with the dissenting
opinion, naturally, written by Frankfurter)? Dissents, with their words
of caution, often inform later majority opinions and make subsequent
courts think twice before unduly extending an established principle. In
some cases, the concerns of the dissent are ultimately adopted in a later
decision which works a compromise between the two points of view. (My
favorite example of this is the Bivens line of cases, where the concerns
of the dissent have been adopted in the last 15 years to the extent of
creating an exception which practically swallows the rule.)
So what if Frankfurter, say, had foreseen some of the events which would
follow from the Brown decision and the laws passed to enforce it - for
example, forced busing, Federal judicial control over local schools, etc.
Would this have put the brakes on later judicial activism - or at least
started the legislatures thinking about alternative methods in order to
prevent his predictions coming true?
Second of all, the fact that the Brown decision was unanimous in 1954
suggests that desegregation might have won a majority of the Justices at
some earlier time. I'm not all that familiar with the pre-Warren Court,
but political pressure in favor of equality had been increasing since at
least the end of WW2. So what if Charles Hamilton Houston had decided to
go for all the marbles in 1946? Would the decision have gone his way? If
it had, to what effect? If not, would the Court be willing to revisit the
issue in 1954?
Finally, what if Frankfurter were named Chief Justice in Warren's place,
and Warren was passed over for an Eisenhower man who actually had a sense
of loyalty? Would Brown have come down the other way - and, if so, what
would be the effect on the legitimacy of the Court?
: If nothing else, the Cold War--and the argument that US racial
: discrimination was helping Soviet and Communist Chinese propaganda in the
: Third World--guaranteed that segregation would be struck down.
Is this a modified Mr. Dooley Theory of Supreme Court Jurisprudence?
[good stuff deleted]
David Tenner
In article <66qfgc$7...@nnrp4.farm.idt.net>, Jonathan Edelstein <jona...@IDT.NET> wrote:
>In soc.history.what-if David Tenner <ten...@ibm.net> wrote:
>
>: First of all, I think the chances were negligible that the Supreme Court
>: doctrine had already been undermined by a series of cases involving
>: graduate school education (note that the Court prudently started with the
>: least controversial level of education). The real question in 1954 was
>: whether the decision was going to be unanimous. That it was, without even
>: a separate concurrence, was seen as Warren's real triumph, not the
>: craftsmanship of the decision, which law professors have been criticizing
>: for decades.
>
>
>First of all, suppose that the Brown decision indeed came down in 1954,
>but as a 7-2 decision rather than a unanimous one (with the dissenting
>opinion, naturally, written by Frankfurter)? Dissents, with their words
>of caution, often inform later majority opinions and make subsequent
>courts think twice before unduly extending an established principle.
>So what if Frankfurter, say, had foreseen some of the events which would
>follow from the Brown decision and the laws passed to enforce it - for
>example, forced busing, Federal judicial control over local schools, etc.
>Would this have put the brakes on later judicial activism - or at least
>started the legislatures thinking about alternative methods in order to
>prevent his predictions coming true?
It's been some years since I read the history of Brown, but I believe that
it was Jackson, not Frankfurter, who was the obstacle for a while to a
unanimous decision. In fact, that became an issue during the hearings on
confirming Rehnquist for the Supreme Court. Rehnquist, as Jackson's law
clerk, had written a memo opposing the plaintiffs' case (it had a rather
sneering reference to "the argument of Marshall--Thurgood, not John"). He
told the Senate that the memo was not an expression of his own views but of
Jackson's at the time.
A dissent by Jackson or someone else might have encouraged even more
"massive resistance" than took place in OTL. Perhaps a separate
concurrence would have been better in order to show the problems of the
majority's decision without encouraging resistance to it.
>
>Second of all, the fact that the Brown decision was unanimous in 1954
>suggests that desegregation might have won a majority of the Justices at
>some earlier time. I'm not all that familiar with the pre-Warren Court,
>but political pressure in favor of equality had been increasing since at
>least the end of WW2. So what if Charles Hamilton Houston had decided to
>go for all the marbles in 1946? Would the decision have gone his way? If
>it had, to what effect? If not, would the Court be willing to revisit the
>issue in 1954?
My feeling is that if it had come to the court before the court was ready
to strike down all school segregation--but at a time when they were already
embarassed to be seen as defending segregation--they would somehow have
found a way to dodge the issue. After all, they found a way to avoid
declaring "anti-miscegenation" laws unconstitutional until 1967!
>
>Finally, what if Frankfurter were named Chief Justice in Warren's place,
>and Warren was passed over for an Eisenhower man who actually had a sense
>of loyalty? Would Brown have come down the other way - and, if so, what
>would be the effect on the legitimacy of the Court?
It wouldn't have come down the other way, but it might not have been
unanimous.
>
>: If nothing else, the Cold War--and the argument that US racial
>: discrimination was helping Soviet and Communist Chinese propaganda in the
>: Third World--guaranteed that segregation would be struck down.
>
>Is this a modified Mr. Dooley Theory of Supreme Court Jurisprudence?
Or the "switch in time that saved nine" in 1937. The court does take into
account things like the overwhelming public sentiment against laissez-faire
in the 1930's or the growing world consensus against racism in the 1950's
(or for that matter the growth of anti-affirmative action sentiment in the
1990's). Of course it cannot simply decide cases on the basis of such
sentiment, but it can usually find precedents to support the Zeitgeist.
David Tenner
ten...@ibm.net
Conrad Hodson
What a prepostrous notion!
You might as well imagine a Bourbon monarch on a _modern_ throne, while
you're at it!
Spain, perhaps.
Conrad Hodson
D. A. Ling
US. I recognize most if not all of your premises (even if I don't know
the particulars) (For those non-American history literates - Brown was
the landmark decision that ruled separate but equal educational
facilities (segregation) was not equal protection as provided for by the
14 amendment to the US constitution)
D. A. Ling
> : would uphold state-mandated segregation in 1954. The separate-but-equal
> : doctrine had already been undermined by a series of cases involving
> : graduate school education (note that the Court prudently started with the
> : least controversial level of education). The real question in 1954 was
> : whether the decision was going to be unanimous. That it was, without even
> : a separate concurrence, was seen as Warren's real triumph, not the
> : craftsmanship of the decision, which law professors have been criticizing
> : for decades.
>
>
> First of all, suppose that the Brown decision indeed came down in 1954,
> but as a 7-2 decision rather than a unanimous one (with the dissenting
> but political pressure in favor of equality had been increasing since at
>
> Finally, what if Frankfurter were named Chief Justice in Warren's place,
> and Warren was passed over for an Eisenhower man who actually had a sense
> of loyalty? Would Brown have come down the other way - and, if so, what
> would be the effect on the legitimacy of the Court?
>
> : discrimination was helping Soviet and Communist Chinese propaganda in the
> : Third World--guaranteed that segregation would be struck down.
>
>
>
> Jonathan I. Edelstein in The Bronx, NY
>
> "Who is wise? He who learns from all."
> -Ben Zoma, Pirkei Avot 4:1
an unbiased look at the law and go their own way (Warren is a good
example of that). Since the only way to remove a justice is by
impeachment, it does give a marvelous sense of continuity. Even highly
politically conservative jutices tend to become centrists.
Jonathan Edelstein
In soc.history.what-if D. A. Ling <DAL...@hotmail.com> wrote:
[deletia]
: Experience has shown that once a justice is appointed, they tend to take
: an unbiased look at the law and go their own way (Warren is a good
: example of that). Since the only way to remove a justice is by
: impeachment, it does give a marvelous sense of continuity. Even highly
: politically conservative jutices tend to become centrists.
Two words: Clarence Thomas.
Jonathan Edelstein
In soc.history.what-if David Tenner <ten...@ibm.net> wrote:
[deletia]
: >First of all, suppose that the Brown decision indeed came down in 1954,
: >but as a 7-2 decision rather than a unanimous one (with the dissenting
: >opinion, naturally, written by Frankfurter)? Dissents, with their words
: >of caution, often inform later majority opinions and make subsequent
: >courts think twice before unduly extending an established principle.
: >So what if Frankfurter, say, had foreseen some of the events which would
: >follow from the Brown decision and the laws passed to enforce it - for
: >example, forced busing, Federal judicial control over local schools, etc.
: >Would this have put the brakes on later judicial activism - or at least
: >started the legislatures thinking about alternative methods in order to
: >prevent his predictions coming true?
: It's been some years since I read the history of Brown, but I believe that
: it was Jackson, not Frankfurter, who was the obstacle for a while to a
: unanimous decision.
According to Mark Tushnet, _What Really Happened at Brown v. Board of
Education_, 91 Columbia L. Rev. 1867 (1991), the last holdout was neither
Jackson nor Frankfurter but Reed. (Tushnet, a former clerk to Thurgood
Marshall, based his article on previously unpublished papers of Justices
Douglas, Jackson and Warren. Michael J. Klarman, in his review of
Tushnet's subsequent book (published at 81 Georgetown L. J. 433) accuses
Tushnet of "revisionist interpretation of Brown's internal history," but
agrees that Reed was the main obstacle to unanimity. This is certainly a
plausible conclusion, given the available evidence and given Reed's
positions in prior decisions involving race.)
: In fact, that became an issue during the hearings on
: confirming Rehnquist for the Supreme Court. Rehnquist, as Jackson's law
: clerk, had written a memo opposing the plaintiffs' case (it had a rather
: sneering reference to "the argument of Marshall--Thurgood, not John"). He
: told the Senate that the memo was not an expression of his own views but of
: Jackson's at the time.
Professor Leonard W. Levy recalls being in Frankfurter's chambers
following a day of oral argument in Brown, "when Justice Jackson burst
into the room and, without taking any notice of me, blurted out excitedly,
'Wasn't that colored fellow [i.e. Thurgood Marshall] magnificent! He
simply creamed John W. Davis.'" Leonard W. Levy, _Anecdotage_, 13 Const.
Commentary 1, 4 (1996). Not that this proves anything about Jackson's
attitude toward the merits of the case, but it certainly indicates that he
didn't sneer at Thurgood Marshall. And Rehnquist, of course, had every
motive to minimize his own part in that memorandum.
Nevertheless, the internal evidence cited by both Tushnet and Klarman
indicates that Jackson was one of the later Justices to come around to the
majority on Brown. IMO, however, his reluctance - like Frankfurter's -
stemmed from unwillingness to reject precedent rather than any personal
approval of segregation.
: A dissent by Jackson or someone else might have encouraged even more
: "massive resistance" than took place in OTL.
Especially a dissent by Reed, who according to Tushnet was never really
reconciled to the Brown decision even though unwilling to be the sole
dissenter. 91 Columbia L. Rev. at 1923. A vehement defense of Plessy by
Reed would have been much more of a rallying point for the South than a
lukewarm Frankfurter/Jackson dissent saying "we don't care much for
segregation, but it's a political question."
: Perhaps a separate
: concurrence would have been better in order to show the problems of the
: majority's decision without encouraging resistance to it.
Probably so. Although Tushnet claims that later judicial activism might
have been averted by a _stronger_ response to segregation by the Court in
the 1950s, rather than one which allowed Southern school districts to
desegregate at "all deliberate speed" (as directed in the second Brown
decision in 1955). Still, I wonder if this is one area where the Court's
unanimity both as to substantive holding and remedy might have done more
harm than good. The published papers of the Justices indicate that the
issue of future judicial activism was discussed at some length in the
Court's deliberations over Brown. Maybe a concurrence (or at the very
least, a concurrence in the second decision) which warned about future
expansion of judicial power might have prodded the political branches into
doing some serious thinking about consequences.
: >Second of all, the fact that the Brown decision was unanimous in 1954
: >suggests that desegregation might have won a majority of the Justices at
: >some earlier time. I'm not all that familiar with the pre-Warren Court,
: >but political pressure in favor of equality had been increasing since at
: >least the end of WW2. So what if Charles Hamilton Houston had decided to
: >go for all the marbles in 1946? Would the decision have gone his way? If
: >it had, to what effect? If not, would the Court be willing to revisit the
: >issue in 1954?
: My feeling is that if it had come to the court before the court was ready
: to strike down all school segregation--but at a time when they were already
: embarassed to be seen as defending segregation--they would somehow have
: found a way to dodge the issue. After all, they found a way to avoid
: declaring "anti-miscegenation" laws unconstitutional until 1967!
I'm not sure if there _was_ any way to dodge the issue on facts like those
in Brown, where two of the three defendants were complying with court
orders to equalize their facilities, and the third was faced with an
unequivocal lower court decision holding that segregation was
unconstitutional. The Court might have hit the "cert denied" button on
the first two cases, but allowing the third decision to stand would be
almost equivalent to overturning Plessy on their own. And there would be
no way for the Court to decide that case without making _some_ pronounce-
ment as to Plessy.
At any rate, the Court almost did revisit Plessy eight years before
Brown. I threw out 1946 as a guess, but it turned out to be an inspired
one, because a case decided that year could very well have overturned
segregation on Fourteenth Amendment grounds.
In Morgan v. Virginia, 328 U.S. 373 (1946), William Hastie - another
Houston protege who was ultimately appointed to the Third Circuit -
succeeded in convincing the Court to strike down segregation on interstate
carriers. The decision ultimately rested on Commerce Clause grounds, but
Justice Rutledge apparently asked Hastie during oral argument if the case
could also be decided under the Fourteenth.
This wasn't just an opportunity - it was a stone cold invitation.
However, Hastie stuck to the gradualist strategy of the NAACP, "pretended
not to hear [Rutledge]," and followed the question with "fifteen minutes
of irrelvancies." Gilbert Ware, _William Hastie: Grace Under Pressure_
189 (1984).
But what if Hastie had decided not to wait?
We will start with the internal evidence in the Brown case itself, because
this is the most direct indication of the Justices' private opinions on
the continued validity of Plessy. Of course the discussion in the Brown
case begain in 1952, but seven of the Justices on the Court at that time
also sat on the Court in 1946. (More later on those who didn't.)
This evidence, however, varies. Richard Kluger, in _Simple Justice: The
History of Brown v. Board of Education and Black America's Struggle for
Equality_ 614 (1976) states that an informal poll taken by the Supreme
Court clerks among themselves after the initial discussions, indicates
that "a majority of the Justices would not have overruled Plessy."
Another document - this one a memo to files written by Justice Douglas -
gives us the names of that majority.
As related by Tushnet, "Douglas stated, 'In the initial conference [in
December 1952] there were only four who voted that segregation in the
public schools was unconstitutional.' These were Black, Burton, Minton
and Douglas. Vinson and Reed thought that 'the Plessy case was right,'
and Clark 'inclined that way.' Both Frankfurter and Jackson 'expressed
the view that segregation in the public schools was probably
constitutional.'" 91 Columbia L. Rev. at 1881.
On the other hand, Frankfurter himself, in a letter to Reed after the
final decision in Brown, stated that there would have been four dissenters
- _not_ including himself - if the Brown case had been decided under
Vinson. Id. at 1870. Tushnet also acknowledges that Douglas might have
placed Frankfurter on the list of dissenters due to their long-standing
personal enmity. Id. at 1881-82. However, Frankfurter also bragged later
on about "filibustering" the decision "for fear that the case would have
been decided the other way under Vinson." Klarman, 83 Georgetown L. J. at
442-43. If Frankfurter had counted five votes in favor of Brown in 1952,
as he claims in his letter, there would have been no need to "filibuster"
- at least not for the reason stated. (To be fair to Frankfurter, his
doubts in 1952 may have been about Minton rather than himself, as Minton
had expressed ambivalent views - especially in private - in other cases
involving race.)
Finally, Burton and Douglas apparently took their own headcounts and
determined that there would be "two to four" dissenters if Brown had been
decided in the 1952 term. Presumably the "two" would have been Vinson and
Reed, while the "four" would have included Jackson and Frankfurter (or
possibly Jackson and Clark). It may be, however, that these two Justices
were being overly optimistic, especially with regard to their guess that
the decision might have come down 7-2.
From this evidence, conflicting as it is, we can place the 1952 Court into
three groups. Three Justices - Black, Burton and Douglas - were
definitely against Plessy; two - Vinson and Reed - were definitely for
it; and the other four were swing votes.
Which, it turns out, is all the information we need to determine whether
Plessy would have been overturned in 1946.
Two of the Justices on the 1952 Court - Minton and Clark, both unknowns on
Plessy - were appointed in 1949. At the time of the Morgan case, their
chairs were occupied by two Justices who were considerably more liberal,
Murphy and Rutledge. It was Murphy who vehemently condemned racism in his
dissent in Korematsu v. United States, 323 U.S. 214 (1944) and stated in
his concurrence in Duncan v. Kahanamoku, 327 U.S. 304, 334 (1946) that
"[r]acism has no place whatever in our civilization... It renders impotent
the ideal of the dignity of the human personality." Writing for the
Court, he also struck down labor union segregation in Steele v. Louisville
and Nashville R.R., 323 U.S. 192 (1944) in terms which suggested strongly
that he believed any form of segregation was unconstitutional.
Rutledge wasn't quite as articulate as Murphy. However, he joined many of
Murphy's dissents in racial cases, and also would have overturned
California's Alien Land Law. That, and the fact that he was the one who
invited Hastie to make a Fourteenth Amendment argument in Morgan, leaves
little doubt that he was one of "the Court's most vociferous critics of
racial discrimination." Michael Klarman, _An Interpretive History of
Modern Equal Protection_, 90 Mich. L. Rev. 213, 233 (1991). This, in
turn, leaves little doubt that he would have voted to overturn Plessy.
Thus, a minimum of five Justices in 1946 - Black, Burton, Douglas, Murphy
and Rutledge - would have voted that segregation was unconstitutional
under the Fourteenth. (We are, of course, assuming that Black, Burton and
Douglas would have voted the same way in 1946 as in 1952, but IMO this is
an assumption we can safely make.) The majority in favor of overturning
Plessy, in fact, was probably firmer between 1946 and 1949 than it would
have been in the 1952 term. My guess is that it would have been 7 to 2,
with Jackson and Frankfurter - neither of whom was personally enamored of
segregation - jumping on the bandwagon once they realized the game was up.
A decision in 1946 would also have come in the context of the Truman
Administration rather than the Eisenhower one. This leads naturally to
the question of whether Truman would have been more vigorous in enforcing
the Court's dictates than Eisenhower was. Certainly, Truman had the
courage to make and enforce some tough calls against segregation, such as
his decision to integrate the Army in 1948. If he had the cojones to make
a decision like that in an election year, would he have also followed
through effectively after the Morgan Court overturned Plessy? If so,
would we see the Federal marshals in Little Rock (or some other city) in
1947, and desegregation beginning for real nearly two decades before it
actually did?
Morgan may have been a missed opportunity in more ways than one.
: >Finally, what if Frankfurter were named Chief Justice in Warren's place,
: >and Warren was passed over for an Eisenhower man who actually had a sense
: >of loyalty? Would Brown have come down the other way - and, if so, what
: >would be the effect on the legitimacy of the Court?
: It wouldn't have come down the other way, but it might not have been
: unanimous.
The papers discussed above give some idea of how it might have gone.
Let's accept either Frankfurter's or Douglas' headcount as the correct
one, because either one makes things interesting. Let's also change the
what-if a little and imagine that Eisenhower indeed decides to promote
from within - but that a moment of temporary insanity on his part gives us
Chief Justice Reed. Finally, Vinson's replacement - we'll call him
Justice Ike - remains true to the President who appointed him.
If Douglas' headcount is correct, there would be four in favor of
overturning Plessy, and one - Reed - who was very much against it. The
others, however, were closer to Reed than to Douglas' gang of four.
Reed's prestige as Chief Justice might well have persuaded Clark to stop
"leaning" toward Plessy and take a firm position in favor of it, while
Justice Ike - a new man, and a conservative one - would have been even
more susceptible to being swayed by the Chief Justice. This leaves
Jackson and Frankfurter - who, although ambivalent about segregation,
might well have decided that this wasn't the right time or place.
However, Frankfurter and Jackson would probably have concurred separately
rather than joining Reed's opinion - in fact, their concurrence might have
opposed segregation on moral grounds but simply stated that overturning it
was beyond the reach of the Fourteenth. Thus, we have a decision where
the largest single plurality is in favor of overturning Plessy, while two
of the "majority" Justices are clearly reluctant to take the position they
are forced to take. What then?
Under Frankfurter's headcount, there will be a majority in favor of Brown
- but it will be a bare 5-4 one. Most likely, Frankfurter - with his
resp[ect for precedent - would also feel compelled to separately justify
his finding that segregation was unconstitutional (possibly even trying to
do so on grounds other than the equal protection clause of the Fourteenth,
such as a resurrected privileges and immunities clause). So the opinion
overturning Brown would be a plurality rather than a majority opinion, and
there would also be at least two dissents - one by Jackson and Clark
holding that segregation was a political question, and one by Reed
defending Plessy. Justice Ike would join one of the two dissents - your
guess as to which is as good as mine.
Now what would come of _this_ mess?
Robert Fruge
Jonathan Edelstein wrote:
>
> In soc.history.what-if D. A. Ling <DAL...@hotmail.com> wrote:
>
> [deletia]
>
> : Experience has shown that once a justice is appointed, they tend to take
> : an unbiased look at the law and go their own way (Warren is a good
> : example of that). Since the only way to remove a justice is by
> : impeachment, it does give a marvelous sense of continuity. Even highly
> : politically conservative jutices tend to become centrists.
>
> Two words: Clarence Thomas.
four more: William Rehnquist; Antonin Scalia
Brendan Kenny
>
> "Who is wise? He who learns from all."
Please don't tell me that Warren took an "unbiased" view of the law.m The Warren's
courts interpretation of the Constitution was political. Just take a look at the
"penumbra" right to privacy in Griswold v. Connecticut(1965). Unbiased? Por favor!
Robert Fruge
anyone who believes that the Court "invents" rights, should go back and
read the 9th Amendment.......
Sheldon Epstein
On Thu, 18 Dec 1997 19:36:43 -0800, Robert Fruge <raf...@aol.com>
wrote:
>Brendan Kenny wrote:
>> Please don't tell me that Warren took an "unbiased" view of the law.m The Warren's
>> courts interpretation of the Constitution was political. Just take a look at the
>> "penumbra" right to privacy in Griswold v. Connecticut(1965). Unbiased? Por favor!
>anyone who believes that the Court "invents" rights, should go back and
>read the 9th Amendment.......
The issue is rather the court invents applications of rights.
Privacy is an interesting right. Why is it not universal in all
matters? Why are Catch-22 laws permitted to circumvent the explicite
wording of the 4th? Why is it explicitely permitted to make
essentially identical laws at both the state and federal levels so to
try people twice for the same act?
/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\
The greatest joy a man can know is to conquer his enemies and
drive them before him. To ride their horses and take away
their possessions. To see the faces of those who were dear
to them bedewed with tears, and to clasp their wives and
daughters to his arms.
John W Bragg
>>
>> Please don't tell me that Warren took an "unbiased" view of the law.m The Warren's
>> courts interpretation of the Constitution was political. Just take a look at the
>> "penumbra" right to privacy in Griswold v. Connecticut(1965). Unbiased? Por favor!
>
>
>anyone who believes that the Court "invents" rights, should go back and
>read the 9th Amendment.......
The problem is that the Warren Court did not rely primarily on the text of
the Ninth Amendment, but on a "living Constitution", "embodying evolving
standards of decency." There would be little controversy today if the
Courts' reasoning had been that A) contraception falls under the NInth
Amendment reservation of powers and liberties to the States, and to the
people, respectively, and that B) the Fourteenth Amendment guarantee of
life, liberty and property against the States had incorporated this aspect
of the Ninth Amendment.
Of course, a reading of the Ninth Amendment/Fourteenth Amendment conjuction
broad enough to prohibit contraception would bar about 90% of the federal
government's domestic spending and domestic role. I'm willing to go there,
but most US proponents of Griswold and Roe v. Wade are not.
The problem is that the court's decision rooted the right to privacy in
"generalized penumbras and emanations of the provisions of the Bill of
Rights, which this Court finds broad enough to include the right to
privacy."
All quotes are made up by me, but are pretty close to the key language of
the decision.
--Bragg
ObWhat If--What If, with the draftsmanship of a careful lawyer, the Radical
Republican Congress had passed a bill, under the Enforcement Clause of the
Fourteenth Amendment, codifying the Priviledges and Immunities of a Citizen
of the United States? (Such that the Supreme Court would have been less
able to strike it down, as they did the 1866 Civil Rights Act?)
D. A. Ling
Sheldon Epstein wrote:
>
> On Thu, 18 Dec 1997 19:36:43 -0800, Robert Fruge <raf...@aol.com>
> wrote:
>
>
> >> Please don't tell me that Warren took an "unbiased" view of the law.m The Warren's
> >> courts interpretation of the Constitution was political. Just take a look at the
> >> "penumbra" right to privacy in Griswold v. Connecticut(1965). Unbiased? Por favor!
>
> >anyone who believes that the Court "invents" rights, should go back and
> >read the 9th Amendment.......
>
> Privacy is an interesting right. Why is it not universal in all
> matters? Why are Catch-22 laws permitted to circumvent the explicite
> wording of the 4th? Why is it explicitely permitted to make
> essentially identical laws at both the state and federal levels so to
> try people twice for the same act?
>
> /\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\
> The greatest joy a man can know is to conquer his enemies and
> drive them before him. To ride their horses and take away
> their possessions. To see the faces of those who were dear
> to them bedewed with tears, and to clasp their wives and
> daughters to his arms.
the federal statute) and ANOTHER crime is the state crime (maybe
ostensibly looks like the federal crime - but IT IS NOT). Case in
point - bank robbery. It's a federal crime to rob a federally insured
and chartered banking esatblishment. The state crime is "robbery" and
just happened to be the same bank and the same incident - different
charges. Remembering that the states posess and retain powers not
reserved by the fed....
Sheldon Epstein
On Fri, 19 Dec 1997 17:30:43 GMT, "D. A. Ling" <DAL...@hotmail.com>
wrote:
>Sheldon Epstein wrote:
>> The issue is rather the court invents applications of rights.
>> Privacy is an interesting right. Why is it not universal in all
>> matters? Why are Catch-22 laws permitted to circumvent the explicite
>> wording of the 4th? Why is it explicitely permitted to make
>> essentially identical laws at both the state and federal levels so to
>> try people twice for the same act?
>BECAUSE - One crime is a federal crime (with some aspect particular to
>the federal statute) and ANOTHER crime is the state crime (maybe
>ostensibly looks like the federal crime - but IT IS NOT). Case in
>point - bank robbery. It's a federal crime to rob a federally insured
>and chartered banking esatblishment. The state crime is "robbery" and
>just happened to be the same bank and the same incident - different
>charges. Remembering that the states posess and retain powers not
>reserved by the fed....
I am well aware of the rationale that it used. However, it could
not have been the intention to permit multiple prosecutions for the
same action by the simple expedient of creating variations upon the
same law.
If this were the case then the Fed could simply pass a law making
it a crime to kill a citizen of the US and double jeopardy every
murder charge.
=-=-=-=
What ifs abhor a coincidence.
John P Braungart
Sheldon Epstein <shep...@usa.net> wrote in article
<349ba864....@news.mindspring.com>...
> On Fri, 19 Dec 1997 17:30:43 GMT, "D. A. Ling" <DAL...@hotmail.com>
> wrote:
> >Sheldon Epstein wrote:
> >> The issue is rather the court invents applications of rights.
> >> Privacy is an interesting right. Why is it not universal in all
> >> matters? Why are Catch-22 laws permitted to circumvent the explicite
> >> wording of the 4th? Why is it explicitely permitted to make
> >> essentially identical laws at both the state and federal levels so to
> >> try people twice for the same act?
Hi - I'm new to this thread, but I would like to throw in my two cents.
A number of years ago, I read about a couple in Georgia who, one warm
summer evening were enjoying each other on their screened-in back porch. A
neighbor child, a twelve-year-old girl, IIRC, came over to their home and
walked in on them as the wife was giving her husband oral sex, which is
(was) illegal in the state at that time. (May still be, I dunno) Anyway,
the little busybody went running home, telling her parents about what she
saw. They call the police who promptly arrest the married couple. The wife
actually did some time in jail, although I don't remember just how long.
They also were forced to move and their names were taken down as sexual
perverts.
Privacy, in this country it exists only so long as you don't get caught!
Thanks.
Sheldon Epstein
On 20 Dec 1997 13:30:41 GMT, "John P Braungart"
<BRAU...@prodigy.net> wrote:
Not quite what I had in mind but the courts have always drawn a
distinction between the state and the individual doing the snooping.
An interesting decision regarding the state these days is the police
still can not use a ladder to look over your fence to see what you are
doing. But they can fly overhead to see what you are doing.
Privacy in the 4th goes into papers and affects. Catch-22, you
have to file income tax returns (unless you owe nothing but just try
it) but to claim deductions you have given up your right to privacy in
papers and affects.
Specifically to this thread, perhaps it should be WI there were a
universal right of privacy as people understand it rather than as the
laws and courts construe to limit it?
If the doctor patient relationship extends to abortion, why not
marijuana? The concept of "compelling government interest" that
discrimates between the two cases is a fancy way of saying political
expediency.
Similarly the granting of a search warrant on the grounds of
"oath or affirmation" as to probable cause is something that is not
prosecuted as perjury when it is perjury. As such they can do any
search they want without concern. After you house it torn apart as a
lesson they walk away. If they find something, your house is still
torn apart, you are in jail, and you have to show the warrant was
invalid. The warrant that started Waco is a pack of lies yet the
perjurer has not been punished for it.
ka...@egypt.net
In the south they still have 'seperate and unequal' education systems.
All the blacks go to public schools and all the whites go to private
schools.
That's why they support school vouchers - they want to keep the schools
segregated, but also want the public moneys.
Asa
That is heavily and sterotypically overstated.
Many whites and some blacks go to private schools in the Southern half of
the state.
Many blacks and some whites go to public schools in the Southern half of
the state.
Most blacks and most whites go to public schools in the Northern half of
the state.
Private schools in the Northern half of the state generally focus on
academic excellence or are church supported. There are not many of either
kind - and most are quite small.
Another problem is that blacks continually resegregate themselves within
much of the social structure including schools.
Finally, I've heard of little support for school vouchers and that is
coming only from the religious right to help support church schools.
Another tragedy, is that the Christians removed the leavening from the
whole loaf that is the public schools. If they had stayed in and provided
a healthy multi-cultural balance, the entire educational system would be
more productive.
--
Asa
tc
Robert Fruge <raf...@aol.com> wrote:
>Jonathan Edelstein wrote:
>>
>> In soc.history.what-if D. A. Ling <DAL...@hotmail.com> wrote:
>>
>> [deletia]
>>
>> : Experience has shown that once a justice is appointed, they tend to take
>> : an unbiased look at the law and go their own way (Warren is a good
>> : example of that). Since the only way to remove a justice is by
>> : impeachment, it does give a marvelous sense of continuity. Even highly
>> : politically conservative jutices tend to become centrists.
>>
>> Two words: Clarence Thomas.
>four more: William Rehnquist; Antonin Scalia
If you think that Earl Warren is an example of an evenhanded jurist who
respected the law, I have a bridge in Brooklyn I'd like to offer you. Warren
represents judicial activism at its worst. The man was a politician who thought
he could decide legal issue the way legislators make laws. Unfortunately, he
was only one of many judges who have apparently believed that their arbitrary
whims define the applicability and principles of the U.S. Constitution. On the
other hand, Justices Scalia and Thomas and to a lesser extent Rehnquist embody
the principle that a judge's role is to interprete the law, not to legislate it.
Robert Fruge
You're wrong.
David Tenner
"You're wrong", without more, isn't a very convincing argument.
Unfortunately, "judicial activism" has become an epithet that one throws
against any judge who happens to disagree with one's own ideological
position. For example, liberals like to attack Scalia and Thomas as
"activists" because they show little respect for precedent. The liberals
argue that respect for precedent is part of "true" judicial conservatism,
and that lack of such respect represents "activism." But if liberal judges
are allowed to disregard precedent (the Warren Court threw out a huge
number of precedents, form Plessy v. Ferguson to Palko v. Connecticut--and
for present purposes I am not taking any position on whether it was right
or wrong to do so), whereas conservative judges are supposed to revere it,
the result is a "ratchet effect" which will inevitably move the law to the
left--when liberals have a majority on the court they can move the law
leftward and when conservatives have a majority, all they can do is keep it
where it is. I do not consider myself a conservative, but I think they are
entitled to reject any such doctrine.
A more meaningful definition of judicial activist would be one who wishes
to increase the power of the federal courts as against (a) other branches
of the federal government, and (b) state courts and legislatures. In this
respect, Scalia and Thomas are *generally* not activists, but with certain
important exceptions. One is affirmative action. There are many
arguments, perhaps good ones, against affirmative action, but I have not
seen any convincing evidence that the framers of the Fourteenth Amendment
intended to prohibit it. (Indeed, the Freedman's Bureau Act which they
passed could be seen as a sort of affirmative action program, and was in
fact attacked by its opponents as giving blacks rights which whites did not
possess.) A consistently anti-activist judge would support the right of
California, for example, to do away with affirmative action; but he would
also support the right of other states to retain it.
This does not necessarily mean that Scalia and Thomas are wrong when they
strike down affirmative action programs--even when enacted by
democratically elected state legislatures and city councils. I am only
saying that they are being activist (a word which I do not necessarily use
pejoratively) when they do so.
David Tenner
ten...@ibm.net
agr12yotop
I've been teaching constitutional history for 30 years. Excess
verbiage is unnecesary. Sorry. You're still wrong.
Robert Fruge
Sorry, David. Couldn't have said it better myself.
There's a lot to be said about not writing too much anyway....don't you
your eyes ever begin to glaze after reading some of these long, LONG
posts?
Craig J Neumeier
agr12yotop <agr12...@aol.com> writes:
>I've been teaching constitutional history for 30 years. Excess
>verbiage is unnecesary. Sorry. You're still wrong.
Anybody willing to disagree with actual practicing Supreme Court Justices
is not likely to be particularly intimidated by this appeal to authority.
Certainly *I* wouldn't be.
OTOH, the subject is rather off-topic, don't you [plural] think?
ObWhat-If: Delete Earl Warren; replace with a full-blooded strict
constructionist. Discuss.
Craig Neumeier, LHN
Agajpc
I'm not sure I buy your assertion that Scalia, Rehnquist and, in
particular, Thomas, embody a sort of Holmesian restraint in their approach to
constitutional adjudication. In Lujan v. Defenders of Wildlife, Scalia warped
notions of standing out of all recognition in a rather transparent attempt to
obstruct environmentalists, with whom he differed as to matters of policy.
Meanwhile Thomas, in several recent concurrences, has all but embraced a
formalistic, Lochnerian theory of review. See in particular his desire to
restore the vacuous direct effects approach to Commerce Clause jurisprudence
(U.S. v. Lopez 1995).
In the years following the demise of economic substantive due process,
FDR's appointees (Douglas in particular), through a glacial process of
attrition, chipped away at those jurisprudential restraints that stood in the
way of their policy preferences. By the late 1960s, the circle was complete
and substantive due process was back in force, not in vindication of
contractual rights, but rather in support of equally fictive "fundamental"
rights, such as "privacy." While many saw the hypocrisy of this pendulum swing
(Frankfurther, Hand, even Black), the Justices had methodically, through a
period of thirty years, built up a foundation of precedential authority which
lent to later judgments an appearance of propriety. I suspect that the pendulum
is swinging once more, and that 2015 may find us back in 1915. I wish the
pendulum would not swing at all.
Ian
agr12yotop <agr12...@aol.com> wrote:
>I've been teaching constitutional history for 30 years.
Who cares? Anyone can come onto the newsgroup and say "I am the grand poobah
expert, believe my pronouncements from on high", even if they aren't. And
often they may be a grand poobah expert, but are still wrong. I believe
there is a popular phrase which goes "put up or shut up".
Robert Fruge
Yes, we've all listened to "The Mikado"...but I think he's perfectly right
not to "put up or shut up" in this matter. Look at the name of these
newsgroups. This is NOT what this place is for! Go to alt.gov. something or
other if you want to debate constitutional issues...not a newsgroup dedicated
to alternative history.