SSMMUU LLaaww RReevviieeww Volume 67 Issue 3 Article 13 January 2014 WWaarrrreenn CCoouurrtt aanndd tthhee CCoonnssttiittuuttiioonn ((wwiitthh SSppeecciiaall EEmmpphhaassiiss oonn BBrroowwnn aanndd LLoovviinngg)),, TThhee Akhil Reed Amar Yale Law School RReeccoommmmeennddeedd CCiittaattiioonn Akhil Reed Amar, Warren Court and the Constitution (with Special Emphasis on Brown and Loving), The, 67 SMU L. REV. 671 (2014) https://scholar.smu.edu/smulr/vol67/iss3/13 This Speech is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THE WARREN COURT AND THE CONSTITUTION (WITH SPECIAL EMPHASIS ON BROWN AND LOVING) WHEN Akhil Reed Amar* Earl Warren joined the Court as its fourteenth Chief Jus- tice in 1953, Jim Crow ruled the South. Many states dis- franchised blacks with impunity. The Bill of Rights did not generally apply against the states. The Court had never used the First Amendment to invalidate congressional action. Some states had suc- ceeded in chilling core political expression. State-organized prayers were commonplace in public-school classrooms. State criminal defendants had precious few federal constitutional rights. No general right to vote ex- isted. Almost all state legislatures were malapportioned, some grossly so. Over the next sixteen years, Warren helped change all that, dismantling the old judicial order and laying the foundations of the basic doctrinal regime that has remained in place ever since. Warren did not act alone, of course. But it is conventional to periodize the Supreme Court by refer- ence to its chief justices, and the "Warren Court" is an especially handy label, denoting a remarkable period of judicial history, beginning with the Court's deliberations and decision in Brown v. Board of Education, and culminating in a series of landmark rulings in the 1960s, dramatically ex- tending the reach of the Bill of Rights and revolutionizing the right to vote. A powerful triumvirate led the Court in this pivotal era: Earl Warren- a former Republican governor and vice presidential candidate from the West; Hugo Black, a former Democratic senator from the South who had been on the Court since the late 1930s; and William Brennan, a former Democratic state court judge from the Northeast who joined the Court in 1956. In addition to their striking geographic, professional, and political complementarities, the Warren-Black-Brennan triumvirate brought im- pressive methodological diversity to the bench. The Chief inclined toward arguments from constitutional ethos and American ideals of fair play; Black liked to highlight the literal words of the Constitution and their original intent; and Brennan generally saw things through the lenses of * Sterling Professor of Law and Political Science, Yale University. This essay derives, virtually verbatim, from the Irving L. Goldberg Lecture delivered at SMU Law School on March 18, 2014, borrowing from material first presented in Chapters 4 and 5 of my 2012 book, America's Unwritten Constitution: The Precedents and Principles We Live By (2012). 671 672 SMU LAW REVIEW [Vol. 67 case law and practicality.' Decades after Warren's departure, his Court continues to inspire spir- ited debate, but most commentators have missed the real virtues, vices, and implications of the Warren Court revolution. Many conservative crit- ics have accused Warren and his brethren of turning the Constitution up- side down-dishonoring the document's text and original intent, disrespecting the considered views of coordinate branches of government, and disregarding American public opinion. In response, many of the Court's liberal admirers have glibly conceded the truth of these objec- tions but countered that constitutional text, original understandings, con- gressional legislation, and popular sentiments are vastly overrated as decisional guideposts. According to these friends of the Court, the War- ren-era justices were wiser and more evenhanded than the outdated con- stitutional text, the self-serving politicos in Congress, and the unwashed majority of ordinary Americans. Thus, the high court brethren were right to follow their own lights. With defenders like this, who needs detractors? Even if the Warren Court justices were indeed smarter and fairer than everyone else-a doubtful proposition-these men in robes swore oaths to uphold the Constitution, and their opinions purported to apply, not amend, that doc- ument. Let us, then, review the work of the Warren Court and measure it against the words of the written Constitution. In this Irving L. Goldberg Lecture-a lecture named in honor of one of the great judicial crusaders for racial justice in the late twentieth cen- tury-I shall pay special attention to the Warren Court's most famous encounters with Jim Crow. Those seeking more detailed discussion of other major quadrants of Warren Court case law may wish to consult my most recent book, America's Unwritten Constitution, which seeks to place the claims that I shall make today in a broader and more comprehensive framework of analysis. I. BROWN Perhaps the most iconic moment in twentieth-century American judi- cial history occurred on May 17, 1954, when the Court held that racial segregation in public schools was per se unconstitutional. Brown v. Board of Education famously ruled against state and local regimes of race sepa- ration,2 while Brown's companion case, Bolling v. Sharpe, proclaimed that the same anti-segregation principles applied to the federal govern- ment.3 In a widening circle of later rulings that made clear that the jus- tices were completely repudiating the "separate but equal" doctrine underlying the 1896 case of Plessy v. Ferguson, the Warren Court held that apartheid had to end not just in public schools but in virtually every 1. For more on these distinct styles of constitutional argument, see generally PHILIP BOBBI, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION (1982). 2. Brown v. Bd. of Educ., 347 U.S. 483 (1954). 3. Bolling v. Sharpe, 347 U.S. 497 (1954). 2014] The Warren Court and the Constitution 673 domain where Jim Crow laws had prevented whites and blacks from in- termingling-at state beaches, on public golf courses, inside buses, and even within the bonds of matrimony.4 These rulings had deep constitutional roots. Jim Crow aimed to create two hereditary classes of Americans, with whites on top and blacks on the bottom. This racial class system was a throwback to aristocracy, assigning Americans unequal and intergenerationally entrenched legal slots on the basis of birth status. Such a regime was hard to square with the demo- cratic social structure expressed and implied by the Philadelphia Consti- tution. Beyond the Preamble and the Article IV Republican-Government Clause, the bans on federal and state titles of nobility in Article I explic- itly condemned the trappings of aristocracy: "No title of nobility shall be granted by the United States" and "No state shall . . . . grant any title of nobility." Under the letter and spirit of these clauses, which promised a democratic republic and renounced a feudalism based on birth and blood, no American government could properly name some Americans "lords" and others "commoners." But in effect that was precisely what Jim Crow circa 1954 aimed to do, perpetuating a hereditary overclass of fair- skinned lords atop a hereditary underclass of dark-skinned commoners. Alongside the anti-nobility clauses, another pair of Article I provisions prohibited both the state and federal governments from enacting "Bill[s] of Attainder"-statutes that singled out persons by name and pro- nounced them guilty of capital offenses. Beneath this specific rule ran a deeper and wider principle that forbade government from stigmatizing persons because of who they were (their status) as opposed to what they did (their conduct). When read generously, with idealistic attention to both letter and spirit, the original Constitution thus seemed to condemn a legalized racial hierarchy.5 However, this idealistic reading did not prevail in the early republic. Arrayed against this grand vision were antebellum arguments that on ra- cial-equality issues, the Constitution had to be understood as a compro- mising and compromised document. Strong constitutional protections of chattel slavery were tightly woven into both the fabric of the document- most enduringly in the three-fifths clause, giving slaveholders extra politi- cal clout in both Congress and the electoral college-and the fabric of everyday life in antebellum America. In the old South there was in fact a legal structure of lordship and serfdom despite the anti-nobility clauses. Nor were these clauses unique in not meaning what they seemed to say. Slavery contradicted a huge part of the original Constitution, if the words of that document were read idealistically. For example, despite the Bill of 4. See generally Brown, 347 U.S. 483; Bolling, 347 U.S. 497; Mayor & City Council of Balt. City v. Dawson, 350 U.S. 877 (1955) (per curiam) (discussing beaches); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (per curiam) (discussing golf courses); Gayle v. Brow- der, 352 U.S. 903 (1956) (per curiam) (discussing buses); Loving v. Virginia, 388 U.S. 1 (1967) (discussing matrimony). 5. See Akhil Reed Amar, Attainder and Amendment 2: Romer's Rightness, 95 MICH. L. REV. 203, 215-16 (1996). 674 SMU LAW REVIEW [Vol. 67 Rights, slaves had no entitlements to worship, assemble, speak, bear weapons, or marry-indeed, no right even to eat and sleep as they pleased. In effect, each slave was sentenced to life imprisonment at birth without any ordinary due process in the form of an individualized adjudi- cation of wrongdoing.6 Candid antebellum interpreters resolved the original Constitution's seeming contradictions by conceding that slaves were simply not part of "We the People" at the founding. Rather, slaves were akin to enemy aliens, and America's Constitution aimed to protect Americans first and foremost. If protections for the American people meant privations for other peoples-whether the British, the Spanish, the French, the Mohawks, or the slaves-then so be it. Free blacks, however, were a different story. Many had borne arms for America in the Revolution and had even voted on the Constitution itself. Thus, free blacks in antebellum America could plausibly claim all the Constitution's guarantees-or, more modestly, could claim these guaran- tees in any state that recognized their formal citizenship. Alas, the ante- bellum Supreme Court saw things differently. Chief Justice Taney's 1857 opinion in Dred Scott went so far as to proclaim that a free black de- scended from slaves could never be a citizen even if his home state said otherwise. Taney's was a twisted and ultimately temporary reading of the document. In the wake of the Civil War, America adopted a trio of amendments reaffirming the most idealistic elements of the Philadelphia Constitution and renouncing the original text's original sin. The Thirteenth Amendment abolished slavery and empowered Con- gress to pass sweeping anti-caste legislation, a mission Congress immedi- ately began to fulfill. The Fourteenth and Fifteenth Amendments made clear that the republic was being re-founded on principles of free and equal citizenship. Pointedly repudiating Taney, the first sentence of the Fourteenth Amendment declared the birthright citizenship of all persons born in America, black and white alike: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." Notably, this clause governed the federal government as well as the states. In the next sentence, the word "equal" explicitly appeared, promising that all persons would receive "equal protection of the laws." Finally, the Fifteenth Amendment threw voting booths open, inviting blacks to participate equally with whites in the grand project of American democracy. With this trio of amendments proclaiming a new birth of freedom, the key con- tradictions and compromises of the Founders' Constitution melted away. No longer was it necessary or proper to read the Preamble and the other anti-aristocracy and anti-attainder clauses in a stingy way. In light of all these constitutional clauses, all these structural considera- tions, and all this historical evidence, Brown and Bolling were not just 6. On "extra" clout for slave holders, see AKHIL REED AMAR, AMERICA'S CONS-m TUTION: A BIOGRAPHY 87-98, 148-59, 344-47 (2005) [hereinafter ACAB]. 2014] The Warren Court and the Constitution 675 correct but clearly correct. These iconic cases vindicated the central meaning of the Reconstruction amendments. Jim Crow laws were not truly equal. American apartheid created a subordinated caste in violation of the vision of the Thirteenth Amendment and its early implementing legislation; perpetuated two unequal classes of citizens in defiance of the logic of the Fourteenth Amendment's first sentence; deprived blacks of the genuinely equal laws commanded by the Fourteenth Amendment's next sentence (and by the companion Fifth Amendment); and kept blacks and whites apart in a manner that renounced the premise and promise of the Fifteenth Amendment that Americans of different races would come together-at polling places, in legislatures, on juries-as democratic equals.7 II. COUNTERARGUMENTS Leading critics (and some friends) of the Warren Court have raised two counterarguments based on the alleged original intent of the Reconstruc- tion Amendments. First, while the Fourteenth Amendment was pending, many congressional supporters emphatically stated that it would not pro- hibit segregation. Second, although the Reconstruction Congress never explicitly enacted legal segregation, it did continue to fund the preexisting segregated schools in the nation's capital, and it even allowed its own public galleries in the Capitol building to be racially segregated. Practices put in place as the ink on a newly ratified constitutional clause is still drying may properly help resolve textual ambiguities. But post-enactment practices cannot trump the central meaning of a constitu- tional provision as that provision was plainly understood by the public at the moment of its enactment. When the Fourteenth Amendment was adopted, Americans undeniably understood that one of its central pur- poses was to end all "Black Codes"-laws that withheld from blacks the ordinary civil rights enjoyed by whites. Virtually all the amendment's sup- porters agreed that it would prohibit any law that enforced white supremacy in the domain of civil rights. For example, had any legislature in 1869 enacted a candid statute enti- tled "An Act to Put Blacks in Their Proper Place at the Bottom of Soci- 7. Both the Fifth and the Fourteenth Amendment promised "due process of law"- the Fifth vis-A-vis the feds and the Fourteenth vis-A-vis states. As understood by the Recon- struction generation, who in effect reglossed the Fifth Amendment by adopting a later amendment echoing it, "law" in its nature was general, equal, and impartial; and the "due process" that generated "law" had to respect that nature by ensuring that lawmaking would be general and prospective, while law execution/adjudication would be impartial. Thus, implicit in due process, as understood by the Reconstruction generation, was an equality idea of sorts. Indeed, an early draft of the Fourteenth Amendment spoke of "equal protection in the rights of life, liberty, and property." CONG. GLOBE, 39th Cong. 1st Sess., 1034 (1866). The final draft, which featured separate "equal protection" and "due process" clauses, aimed not to sharply contradistinguish these two related concepts but to elaborate their interrelatedness as two sides of the same coin: Proper "law" had to be equal and pursuant to fair process. To punish or stigmatize a person on the basis of his birth status violated this vision, which the Reconstruction Congress understood as a first-princi- ples limit that derived from the nature of law and thus bound all levels of government. 676 SMU LAW REVIEW [Vol. 67 ety," or "An Act to Demean and Degrade Negroes," or "An Act to Deny the Equal Citizenship and Civil Equality of NonWhites," such a statute would have plainly violated the core meaning of the Fourteenth Amend- ment as understood by those who framed and ratified it in 1866-68. The only question in 1954 was whether Jim Crow was legally equivalent to these hypothesized laws-equivalent in purpose, equivalent in effect, and equivalent in social meaning. True, Jim Crow laws, with a sly wink, pur- ported to be "equal" and did not declare their true social meaning with the candor of our hypothetical statutes. But by 1954, honest observers understood that the "equal" part of "separate but equal" was a sham. The whole point of Jim Crow was inequality, and everyone knew it.8 How, then, are we to account for the fact that the Reconstruction Con- gress itself failed to end segregation and instead ended up perpetuating segregation in certain respects? Actually, many Fourteenth Amendment supporters opposed racial seg- regation. One of the amendment's chief architects, House leader Thad- deus Stevens, established an interracial orphanage upon his death and chose to be buried alongside African Americans in an integrated grave- yard. He composed his own tombstone inscription: I repose in this quiet and secluded spot Not from any natural preference for solitude But, finding other Cemeteries limited as to Race by Charter Rules, I have chosen this that I might illustrate in my death The Principles which I advocated Through a long life III. EQUALITY OF MAN BEFORE HIS CREATOR Stevens went to his final resting place in August 1868, less than a month after the Fourteenth Amendment became the supreme law of the land.9 While Stevens ranked among the most radical of Republicans on racial issues, many other Republicans were also high-minded opponents of le- gally imposed segregation. But some Republicans were considerably less zealous, and most Democrats refused to support an all-out crusade against segregation. In the end, faithful constitutional interpreters must investigate not merely how many segregationists existed from 1866-68, but also what they said and did, and whether their words and deeds plau- sibly glossed the Fourteenth Amendment. In short, we must probe how the unwritten Constitution of the mid-1860s interacted with the written Constitution itself. The question is not just whether Representative X or 8. See generally Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421 (1960). 9. HANS L. TREFOUSSE, THADDEUS STEVENS: NINETEENTH-CENTURY EGALITARIAN xi (1997). 2014] The Warren Court and the Constitution 677 Senator Y supported segregation in 1867 or 1869, but how he read the Constitution's words-how he reconciled segregationism with the Consti- tution's express commands. Ultimately, nothing in what segregationists actually said or did pro- vides good grounds for revising our initial understanding of the Four- teenth Amendment's central meaning. The text calls for equal protection and equal citizenship, period. There is no textual exception for segrega- tion, no clause that says "segregation is permissible even if unequal." Nor did most 1860s segregationists who supported the amendment argue that there was such a categorical exception. Instead, they offered up a medley of legal and factual assertions, some plausible and others less so.10 Many merely argued that separation was not intrinsically unequal and therefore unconstitutional. As a matter of logic they were right. It is logi- cally possible to imagine forms of separation that are not unequal. For example, separate bathrooms for men and women today are not widely understood, by either men or women, as stigmatizing or subordinating. But in some places and at some times, separate bathrooms might indeed be a way of keeping women down. In Jim Crow America, racially sepa- rate train cars, bus seats, schools, bathrooms, drinking fountains, and the like were engines of inequality in purpose, effect, and social meaning. They were ways of keeping blacks down, creating a pervasive legal system of untouchability and uncleanness that violated the basic equality ideal constitutionalized by the Fourteenth Amendment. Put differently, this first segregationist argument accepted the correct legal meaning of the Fourteenth Amendment and simply posited that as a matter of fact-not law-separate could and would be equal in the Capi- tol galleries and elsewhere. Whether or not this fact was true in 1868, it hardly answered the question in 1896 or 1954. Surely the Court was enti- tled to draw its own factual conclusions about whether separate was actu- ally equal. Although the Brown Court overstated when it proclaimed that in the field of education separate was inherently unequal, the Court surely could properly say, with the benefit of history, that Jim Crow in America was inevitably unequal. Brown came at the end of a decades-long string of cases in which black plaintiffs challenging regimes that claimed to be "separate but equal" had been obliged to bear the expense of proving actual inequality case by case-a string of cases in which inequality was 10. While each of the main segregationist arguments persuaded some Republicans in the 1860s, none appears to have won over a majority of Republicans at that time. In em- bracing or accepting segregation, various Republican Congressmen in the 1860s did not need to agree upon one single plausible legal theory. Various minority theories, even if each was ultimately implausible, could nevertheless give rise to a powerful political bloc-a bloc reinforced by diehard Democrats who stood united in their opposition to the Four- teenth Amendment and its promise of racial equality in civil rights. But had the Brown Court sought to defend segregation in a judicial opinion, the justices would have needed to articulate a particular legal reason, a principled and doctrinally acceptable reason. It would have been odd for Brown to have adopted one or another eccentric theory that was in fact rejected by most Republicans and that also reflected an implausible understanding of the amendment's text. 678 SMU LAW REVIEW [Vol. 67 indeed invariably found by the judiciary when it looked closely. In light of this experience, the Brown Court sensibly shifted the burden of proof to segregationist governments in all future Jim Crow cases. Henceforth, gov- ernments would need to offer compelling evidence that racial separation was indeed equal in purpose, effect, and social meaning." Segregationists in the 1860s also argued that racial separation would actually serve the interests of both races and was favored by most blacks as well as most whites. If true, then separation might indeed be "equal" enough sociologically and therefore constitutionally-just as separate bathrooms and separate sports teams for males and females today pass constitutional muster precisely because a majority of each sex presumably accepts and perhaps even prefers this separation. But whether or not blacks in the 1860s truly preferred to sit separately in Capitol galleries or elsewhere was largely irrelevant in the 1950s, when it was clear that Jim Crow was an insulting and subordinating imposition by whites upon blacks, an imposition vigorously opposed by a wide range of black leaders and the great mass of black citizens.12 Another segregationist argument in the 1860s was that racial segrega- tion had a different legal form than the infamous 1860s Black Codes. Black Codes were formally and facially asymmetric: They heaped disabil- ities on blacks but not whites. By contrast, Jim Crow was formally sym- metric: While blacks could not go to School X, whites were symmetrically barred from attending School Y. Although some 1860s segregationists thought that formal symmetry rendered the Fourteenth Amendment textually inapplicable, they were clearly wrong about this. To repeat, the text does not say and cannot eas- ily be read to say that deep and abiding inequality is permissible so long as a law is formally symmetric. Formal symmetry does not and cannot mean the law is automatically valid. Rather, formal symmetry merely means the law is not automatically (what lawyers call "facially") invalid, as were the Black Codes. The simple question remains: Were formally symmetric Jim Crow laws truly equal? It is possible to imagine some par- allel universe where blacks as well as whites sought separation, where no stigma attached to separation, where separation was not an instrument of subordination. But that was not the world of Jim Crow in 1954 (or in 1896, when the Court wrongly upheld segregation in Plessy v. Ferguson). Reconstruction-era conservatives sometimes articulated their intuition that formal symmetry decisively distinguished segregation and anti-misce- genation laws from Black Codes by claiming that race-separation laws 11. Pre-Brown, see generally Mo. ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Sipuel v. Bd. of Regents of Univ. of Okla., 332 U.S. 631 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Okla. St. Regents, 339 U.S. 637 (1950). Many lower-court decisions in this era also identified fact-specific inequality. 12. See generally MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTs: THE Su- PREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004); Randall Kennedy, Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott, 98 YALE L.J. 999 (1989). 2014] The Warren Court and the Constitution 679 involved not "civil rights," but rather "social rights" that lay beyond the reach of the Fourteenth Amendment. But segregation laws did not merely allow whites to separate themselves from blacks if whites pre- ferred this "social" arrangement. These laws required separation even if both whites and blacks preferred to socialize together or intermarry, and the clear purpose and meaning of such enforced separation was to deify whites and demean blacks. Nothing in the text of the Fourteenth Amend- ment signaled that this species of state action was somehow categorically exempt from the amendment's general requirement of equal citizenship.13 A final segregationist argument was that the Fourteenth Amendment's equality norms applied only against state governments. While this argu- ment, if correct, could not justify state apartheid policies, it might explain segregation in various federal spaces such as the Capitol galleries. But the Constitution's text plainly contradicts this argument. The amendment's first sentence creates rights of equal citizenship that apply against the feds as well as states. Its text provides that "[a]ll persons born . . . in the United States" are by that fact alone "citizens of the United States"-and thus, equal citizens at birth. This sentence in effect constitutionalized the Declaration of Independence's "self-evident" truth-a truth that Lincoln had famously stressed (and glossed) at Gettysburg-that all men (that is, persons) are created (that is, born) equal. Any law, state or federal, heap- ing disabilities or dishonor upon any citizen by dint of his or her birth status-because he was born black, or because she was born female or out of wedlock-violates a core principle of the Fourteenth Amend- ment's opening sentence.14 13. Beyond the issues raised by formally symmetric laws, the civil-rights/social-rights distinction prominent in Reconstruction-era discourse was reflected in two additional Fourteenth Amendment ideas. First, the amendment did not apply of its own self-executing force to certain nongovernmental activities. (Hence the so-called "state action" doctrine, whose textual font is the opening "No State shall" language of the amendment's second sentence.) Second, while Congress would have power under section 5 to enforce the equal- birth-citizens idea of the amendment's opening sentence (which does not use the phrase "No State shall") against various nongovernmental practices and institutions that might threaten a regime of equal citizenship, there would remain real boundaries to this congres- sional power. Congress, for example, could not under section 5 require private persons to refrain from race discrimination in private dinner parties and dating. Such "social" prac- tices lay outside the domain of equal citizenship, which could extend beyond the strictly governmental (especially if Congress so provided) but which would not encompass highly private spaces governed by individual associational/social freedom. 14. Perhaps it might be argued that in regulating its own galleries, neither house was thereby legislating; and that each house was therefore not bound by ordinary principles applicable to ordinary laws. But if so, segregation in the Capitol galleries loses virtually all precedential significance for other forms of segregation backed by actual legislation. More generally, America's implicit Constitution surely imposes many restrictions on Congress to abide by first principles even when Congress is not strictly speaking legislating. If the First Amendment's free-speech principles apply to presidents and courts who seek to censor- notwithstanding the amendment's limited textual command that "Congress shall make no law"-then surely these principles also constrain Congress even when Congress is not leg- islating but, say, regulating its galleries via the internal rules of each house. And what is true of free-speech principles is likewise true of equal-citizenship principles.