Thursday, May 12, 2005

The Methodological Legacy of Brown v. Board of Education
The compelling moral case for the result in Brown has muffled contemporary discussion of the serious defects in its methodology. The Left's current interest in Brown is in asserting that originalism — the traditional method of construing the provisions of the Constitution according to their original meaning — could not have produced Brown's mandate to end segregated schools and must therefore be regarded as illegitimate. As I discuss here, that assertion is wrong. But there has been much less scrutiny of the actual reasoning of Brown. This is unfortunate, for although Brown's bottom-line result is both morally sound and legally right, the methodology of Brown illustrates — and has spawned — two characteristic operational defects in non-originalist decision-making.

The first of these defects is that the Supreme Court's reasoning often is indeterminate and unworthy of being taken seriously as law. In Brown itself, are we to believe that the justices' thinking actually rested on modern psychological research like Clark's? Isn't it telling that the Court does not even attempt to explain the less-than-obvious connection between how a black child describes black and white dolls and the relative effect of integrated vs. segregated schools on that child's "feeling of inferiority"? What if research a few years later showed that integrated schools increased black children's "feeling of inferiority"? Are we to suppose that the Supreme Court might have overturned the decision in Brown? If so, should we respect a methodology that yields results that are so flimsy? And, if (as seems surely the case) differing social-science data would never result in the overturning of Brown, doesn't that show that the purported reasoning is entirely makeshift?

This defect in the Court's reasoning is perhaps most clearly manifested in the absurd postmodernist proclamation set forth in the 1992 Casey abortion case (and reiterated without embarrassment in the 2003 Lawrence decision inventing a constitutional right to homosexual sodomy) that "[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." What this infamous "mystery" passage really means, of course, is that five justices will consult their own whims and preferences to define for all Americans which legislated crimes will be magically transformed into constitutional rights.

The second, more subtle defect in Brown is the Supreme Court's disinclination to reexamine its own dubious precedents on the meaning of the Constitution. Contrary to the conventional understanding, the Court in Brown did not purport to overrule its infamous 1896 ruling in Plessy v. Ferguson, which established the "separate but equal" doctrine and allowed segregated streetcars. Rather, the question that the Court defined for itself was merely "whether Plessy v. Ferguson should be held inapplicable to public education." The Court's cursory and muddled discussion of its "inconclusive" "investigation" into the original understanding of the Fourteenth Amendment strongly suggests that that investigation was not undertaken with any rigor or vigor. And its resulting refusal to revisit Plessy left its decision resting on contestable and unconvincing social-science data rather than on firm constitutional principle.

Great and important essay.

Let me put it into my own simple words: Segregation was unconstitutional. Using social science to come to the decision in Brown was damaging.

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