This Editorial explores why state legislatures abandoned the practice of instructing U.S. senators after a century of vigorous use.  In Part I, I argue that the six-year term length for senators, in combination with the possibility of relatively rapid turnover in state legislatures, prevented binding instructions from remaining a common practice.  In Part II, I explain why instructions disappeared after the Civil War.

 
I.
The Interrelation Between State Law and the Constitution

The Seventeenth Amendment, which required senators to be elected by the people, is commonly blamed for the demise of instructions.  However, instructions fell into disuse long before the Amendment was adopted.  Rather, the six-year term length for U.S. senators, combined with the possibility of rapid turnover in state legislatures, prevented binding instructions from becoming entrenched.  Although many states believed the right to instruct was important, the structure of state legislatures limited their ability to instruct federal representatives.  If state legislators had long term lengths, their threats in year one not to reelect disobeying senators might remain credible by year six.  However, state legislators at the Founding had shorter term lengths than U.S. senators.  Promises to punish a senator for disobeying an instruction would be hard to keep if the same state legislators were not around for the senator’s reelection.  And later, as it became more popular to divide legislative bodies into lots or classes for staggered elections, state legislatures turned over more frequently, further weakening the doctrine of instruction.

 
A.     Input from the Lower Houses in State Legislatures

In broadly worded language, the original Constitution specified that senators would be “chosen by the Legislature” of the state.² Because states had presumptive control over the “manner” of Senate elections, states with a multicameral legislative branch might have been able to select senators by a vote in only one house.  Placing the vote in the hands of the upper house, which generally had a longer term length, could have given the state greater leverage over its senators.  By taking into account the votes of the lower house, however, states undercut their ability to ensure that their senators would obey instructions.

 
B.     Short Term Lengths in State Legislatures

By the year 1803, seventeen states had been admitted to the Union.  The short term length these states provided for their state legislators is striking.  All of the states except two elected their lower house annually (or more often), and the median term length in upper houses was two years (mean length of 2.3 years).  Only one state, Maryland, gave its upper house a term length greater than four years—and even it was not willing to go as high as six years.  The shorter term lengths are understandable.  U.S. senators had a long six-year term so they could learn about foreign affairs and the vast (and growing) territory of the United States—concerns that state legislators did not share.  Nevertheless, this structure made it difficult for binding instructions to take hold.

 
C.     Staggered Elections in State Legislatures

In addition, many state legislatures began to split the members of the upper house of their legislature into lots or classes.  For example, no longer would the entire Maryland Senate stand for reelection every fifth year; in 1851, its new constitution shortened the term length to four years and provided that every two years, one-half of the Senate would face reelection.  Staggered elections meant that new members would enter the upper house at more frequent intervals, diminishing the ability of one state legislature to issue credible threats not to reelect a U.S. senator.

 
D.     Ignoring Threats Not To Reelect

A senator wishing to cast a vote contrary to a state legislature’s instruction could take comfort in the fact that different state legislators very likely would be voting for his reelection.  In fact, this often happened.  Often, senators’ longer term lengths allowed them to stand their ground if they believed they could convince the next wave of state legislators not to follow through on their predecessors’ threats.  For example, in 1835, Samuel Southard, a Whig senator from New Jersey, disobeyed instructions to expunge the censure of President Andrew Jackson from the Senate Journal.  He believed the expunging resolution would be a “degradation of the most humiliating character” for the Senate, and refused to vote for it.³ He did not quietly cast his vote; instead, he gave a long and forceful speech criticizing the doctrine of instruction, calling it “an evil,” which the Framers employed “extra constitutional means to prevent.”⁴ Nevertheless, Southard was reelected in 1838.  By that time, the expunging resolution had faded from voters’ minds, as they dealt with the effects of the Depression of 1837.  Voters in New Jersey blamed the party in power (the Democrats) for the depression, helping the Whigs regain control of the state legislature, thus assuring Southard’s easy reelection.

Senator Southard’s reelection after violating instructions on the biggest issue of the day illustrates a key lesson:  The six-year term for senators, when compared to the short term lengths for state legislators, undercut the doctrine of instruction because senators could disobey if they were willing to take their chances with the future members of the state legislature.  Once the culture of adherence to instructions weakened, there was no constitutional structure in place to sustain it.

 
II.
Reconstruction and the Quiet Demise of the Right To Instruct

Instructions in the United States first thrived in New England town meetings, but President Jackson permanently changed the way instructions were viewed.

 
A.     President Jackson’s Use of Instructions

Although Jackson was not the first to use instructions for political purposes, he was devastatingly successful at deploying them to expand the Democratic party in the South.  As state legislatures began to turn Democratic in the mid-1830s, Jackson urged Southern Democratic state legislators to instruct their Whig senators on the politically divisive matters of the day.  This would put the senators in the position of either voting against their party or against their instructions—a difficult choice in areas like Virginia, where most people strongly believed in the sanctity of instructions.  In such areas, a vote against an instruction was more than a vote against the community’s desired outcome; it was an insult to the community—a declaration that its formal opinion, democratically expressed, did not matter. Thus, senators from these places faced an especially delicate task when deciding whether to violate their instructions or violate their conscience—and many, not surprisingly, resigned before or shortly after their votes.

 
B.     Instructions and the Lead-up to the Civil War

After Jackson’s use of instructions to “intervene in state politics and purge his opponents”⁵ in the Senate, the doctrine was strongly, if not indelibly, associated with Southern Democrats.  Leading up to the Civil War and faced with the momentous decision of whether to secede from the Union, some state legislatures in the South used instructions to express their views to their senators.  However, with party lines drawn, some saw the instructions as divisive.  In Maryland, an attempt to issue such an instruction upset the Whigs, who objected to the “ill-timed introduction of an abstract party principle in the face of a great crisis.”⁶ Not surprisingly, the issue of slavery was more important than instructions.  Even before the Civil War, the doctrine of instructions was losing its moral force.

 
C.     Instructions After the Civil War

The Civil War led to an enormously different Constitution, and the doctrine of instructions was one of the casualties.  The Thirteenth Amendment, drafted shortly after President Abraham Lincoln’s reelection, was a radical break with the past constitutional system; it “pulverized bedrock legal principles and practices in more than one-third of the states and imposed new affirmative federal obligations on every state.”⁷ The balance of power dramatically shifted away from the states.  After President Andrew Johnson vetoed the 1866 Civil Rights Act—claiming that it would “sap and destroy our federative system,” imperil “the rights of the States,” and “centraliz[e]” and “concentrat[e]” “all legislative powers in the National Government”⁸—Congress responded in dramatic fashion by overriding his veto.  This, indeed, was a different government.

 
D.     A Power Reversal: Federal Regulation of State Elections

Four months after using its newly minted Thirteenth Amendment authority to pass the 1866 Civil Rights Act, Congress used its authority under the Founders’ Constitution to prevent state recalcitrance.  Acting to regulate the time and manner of Senate elections under Article I, Congress decreed that state legislatures, on the day of election, should vote concurrently for a senator:  If the two houses did not agree, then on the next day a joint vote of all state legislators should be conducted.  Writing less than two decades after the Act was passed, prominent Republican Senator James Blaine declared that whereas before the Civil War there was a “reluctance to interfere” with the states, after the War “thoughtful statesmen” believed that “every thing which may be done by either Nation or State may be better and more securely done by the Nation.”⁹ Little wonder, then, that the practice of states instructing federal legislators on how to vote virtually disappeared after the War.  The roles were reversed:  Now the states were taking instructions from the federal government.

The South’s loss in the Civil War, and the resulting constitutional changes, dealt a fatal blow to the doctrine of instruction; never again was it meaningfully exercised.  Progressive ideas like the direct primary for Senate elections spread quickly through the populist South.  By 1910, more than half of the Union’s senators were directly elected by the people.  One year later, thirty-seven state legislatures, by their actions and their words, had “indicated that they no longer wanted to elect senators.”¹⁰ The enactment of the Seventeenth Amendment shortly thereafter eliminated any possibility that instructions would again be effective.

States still commonly “urge” their representatives to vote certain ways, but often these resolutions are viewed as political stunts and are disobeyed at no cost.  More persuasive, perhaps, are letters, phone calls, and emails from constituents, which returns us to Madison’s conception of instructions:  A right of “the people . . . to express and communicate their sentiments and wishes”¹¹ to their representatives.

 
Conclusion

Instructions began as a way to make government more democratic.  The House of Commons in England proudly brandished instructions as an indication of popular support, and colonists in New England governed, in large part, by the use of town meetings.  After adopting the Constitution, towns lost their supreme political status.  Nevertheless, instructions survived the Founding and were reincarnated in state legislatures, which used them to command U.S. senators.  But again, after changes in the structure of government after the Civil War and a corresponding shift in constitutional culture (as senators saw no need to resign to protect their reputation), instructions ultimately faded away.

The history of instructions in America reminds us that the meaning of the text of the Constitution—here the “six years” provision—depends not just on how the text is interpreted by courts, but on how those words are “made flesh” by the actors—including state actors—who are invited by the constitution to play a role in our government.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Christopher Terranova received his J.D. from New York University School of Law in 2009.

This Legal Workshop Editorial is based on the following Student Note: Christopher Terranova, The Constitutional Life of Legislative Instructions in America, 84 N.Y.U. L. REV. 1331 (2009).

How is it that the Fourth Amendment came to protect communications privacy?  On its face, the language of the Amendment makes no reference to the notion of communications privacy.  The textual argument on which the principle is based is the notion that surveillance of communications constitutes a “search” and that the communications themselves—the telephone conversations, e-mails, etc.—constitute “persons, houses, papers, [or] effects” within the meaning of the Fourth Amendment.  Plausible, but not exactly compelling.   Moreover, the history of the drafting and ratification of the Constitution likewise provides little in the way of support for the notion of communications privacy.  Instead, to find the origins of the constitutional principle of communications privacy, we must tap a different historical source, the history of one particular communications network.  That communications network, maligned today as a relic from another era, is the post office, the most prominent federal “administrative agency” in the early American republic.

The modern notion that the Fourth Amendment proscribes warrantless “wiretapping”—intercepting a communication while the communication is taking place—stems from the Court’s seminal 1967 decisions Berger v. New York¹ and Katz v. United States.²  Most commentators view the intellectual underpinnings of Berger and Katz as being found in Justice Brandeis’s dissent forty years earlier in Olmstead v. United States.³ But Justice Brandeis’s famous dissent in Olmstead had its precursors too, and it is to them that we must look in search of the origins of the constitutional principle of communications privacy. 

Crucial among the precedents on which Brandeis relied was the 1878 case Ex parte Jackson,⁴ the first case in which the Court ruled that the Fourth Amendment preserved a realm of communications privacy from government intrusion.  Ex parte Jackson upheld a law that prohibited sending information about lotteries through the mail, and in dicta, the Supreme Court ruled that the Fourth Amendment precluded the government from opening sealed letters without a warrant.  But, Ex parte Jackson resulted not from principles embedded in the Fourth Amendment or from an originalist interpretation of the Fourth Amendment or even from existing judicial precedents, but rather from policy choices about the post office a century earlier. 

Privacy of correspondence became a central feature of the legal regime that defined the American post office from its beginnings in the late eighteenth century.  To understand how that happened requires a look at the transformation of the post office from a British to an American institution.  The change was gradual and rooted in historical notions of liberty that had manifested themselves in England from the early days of the English postal service, but those who established the separate American post office during the Revolutionary period recognized the importance of postal privacy—for reasons intimately connected to the Revolutionary War itself—and gave it a strong foundation in the new nation’s legal regime.  Following a 1782 Confederation Congress Ordinance, Congress then wrote postal privacy into the first comprehensive postal statute following adoption of the Constitution, the landmark 1792 Post Office Act.  Over time, law and custom embedded the notion of privacy of correspondence into the fabric of the post office.

By the time of Ex parte Jackson in 1878, the principle of communications privacy was so well established in the postal network that the Court simply “constitutionalized” it.  Perhaps the best way to see that the constitutional “principle” was just an extension of postal policy is to look at the contemporaneous history of privacy of telegrams.  In the early days, telegrams needed to be transcribed numerous times by telegraph clerks along the route between sender and recipient.  The nature of telegraphic technology thus necessitated that many people other than the intended addressee actually view a telegram’s contents.  It is not hard to see, then, why concerns about confidentiality of telegrams could be even greater than that for sealed letters. Yet the telegraph never received the Fourth Amendment protection that the mail received.  Indeed, courts at the time explicitly rejected the analogy with the mails, and did so on the specific grounds that there was no federal statute protecting the confidentiality of telegraphic communications.

Moreover, Ex parte Jackson remains important to us today not simply because it established the principle of communications privacy, but also because it shows us two crucial facts about the formation of constitutional law.  First, it gives an example of an important constitutional doctrine that was built around the post office, the most prominent federal “administrative agency” of the early Republic.   Second, and perhaps more intriguingly, it demonstrates that constitutional law can follow, rather than undermine, legislative choices.  What Ex parte Jackson did was to constitutionalize legislation; it took an earlier policy choice and embedded it into the Constitution.   But this was not an ordinary policy choice; rather, it was one about the character of a government institution.  The general process, of which Ex parte Jackson is an example, can be described briefly in four steps:  (1) Congress passes a statute.  (2) The statutory provision gives an institution certain attributes.  (3) Over time, social practice embeds those attributes into the institution.  (4) The courts then take those attributes and write them into constitutional law.  The key point is that the Court’s interpretation of the Constitution was simply the affirmation of choices made by an earlier legislature, with the institution serving as a mediating force between the legislature and the courts.  By establishing an institution and giving it particular attributes, the drafters of postal statutes helped shape constitutional law long after the promulgation of their statutes.

In sum, the constitutional principle of communications privacy was not rooted in the Fourth Amendment in textual or even historical terms; rather, it was a principle deeply embedded in the history of the post office.  While constitutional law and the scholarship it spawns often inhabit the world of abstract principle, it is often real-world institutions that give us those principles.  Communications privacy, the basic idea now embedded in the Fourth Amendment that the government should not be permitted to intercept individuals’ communications, began in the United States not as an abstract principle at all, but rather as a response by American rebels during the Revolutionary period to the fear of abuses in a particular institution, the post office.  When those rebels set out to establish a post office of their own, they embedded communications privacy into it and did so completely independently of the process that we familiarly associate with constitution-making.  Yet, when the Supreme Court dealt with the question of communications privacy as a matter of constitutional law nearly a hundred years later, the institution of the post office had so shaped the Court’s thinking that it saw constitutional principle where only postal policy had been before.  So, if today we see the principle of communications privacy as fundamental to the Fourth Amendment, we have early postal policy makers to thank, for it was through the post office, not the Constitution or the Bill of Rights, that the early Americans first established that principle.
 

Acknowledgments:

Copyright © 2009 Stanford Law Review.

Anuj C. Desai is Assistant Professor of Law, University of Wisconsin Law School.

This Editorial is based on the following full-length Article:  Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 STAN. L. REV. 553 (2007). Click Here for the Full Article.

Some scholars see in this agnostic quality a constitutional mandate for governmental secularism; indeed, they may appeal directly to the agnostic quality of the Constitution as a way of avoiding the labyrinthine jurisprudence of the First Amendment’s religion clauses.  But is the appeal well taken?  More generally, what are the implications, if any, of the Constitution’s agnosticism for the relations among government, religion, and citizenship in this country?

I.
Irrelevant Agnosticism?

Perhaps the most obvious answer—surely the simplest, anyway—would assert that the agnosticism of the Constitution has no implications at all for how governments in this country should relate to religion.  Why should silence, on any subject, have any particular implications?  There are many things, after all, that the Constitution says nothing about.  Hunting, for instance.  Or space exploration.  Nothing much is thought to follow from this silence.  No one argues that because the Constitution doesn’t talk about hunting, governments in this country are forbidden to notice or regulate the activity.  Instead, we assume that if a particular government (local, state, or national) would otherwise have the power to regulate hunting, or to prohibit it, or to subsidize it, then that government may use its judgment and exercise its power as it thinks best.  The Constitution’s silence neither compels nor constrains.

The same goes for space exploration—and, arguably, for religion.  The Constitution contains provisions, of course, that are thought to constrain American governments in their dealings with religion—most obviously the First Amendment.  But the Constitution’s overall agnostic quality would in this view simply be irrelevant to the question of what governments can do to, for, with, or about religion.

This is, as I said, the simplest answer to the question of the implications of the Constitution’s agnosticism.  There are, however, at least two reasons to be skeptical of this answer.

First, the Constitution’s original and continuing silence on religion seems to have been a deliberate decision made in purposeful contravention both of the wishes of many Americans (both in the founding period and subsequent to it) and of many of the relevant models—foundational documents like the Declaration of Independence, the Articles of Confederation, and the constitutions of nearly every state (and some foreign countries, such as Canada) that did or do explicitly pay their respects to deity.  So it would seem that the Constitution’s silence on this subject is more portentous than its silence on many others.

Second, it seems at least possible that the Constitution’s silence on religion ought to mean something, in the sense that this purposeful silence might usefully serve to ground or inform some valuable constitutional strategy for dealing with the challenges of community and citizenship in a religiously pluralistic society.  But what might that strategy be?  And how might it be served by the Constitution’s agnosticism?

II.
Mandatory Public Secularism?

In modern times, following the demise of Christendom and the failure of Westphalia’s cuius regio eius religio² principle as a device for dealing with the religious fragmentation that followed the Protestant Reformation, a favorite strategy for dealing with religion has been public secularism.  Practical and theoretical variations on the strategy are legion, of course, but the basic idea is that religion should be protected in but also confined to the private domain, while government should operate in the realm of the secular.  In this way, citizens can continue to profess and practice their various religions without persecution or impediment.  And government, for its part, can perform the worldly work that is proper to it while remaining serenely “neutral” in matters of religion.

“Reasonable” and civically responsible people, it is said, ought to be content with this sort of arrangement.  In reality, as we know, some people aren’t happy with it.  But shouldn’t they be?  All that is being asked is that they believe their creeds and live their religions, and that they refrain from imposing these views on others.  What could be more reasonable?

For proponents of this strategy, the agnosticism of the American Constitution may seem a godsend.  Thus, especially of late, some scholars and advocates have emphasized the Constitution’s agnostic or “godless” quality as a basis for requiring that American governments generally confine themselves to the realm of the “secular.”³ Usually, of course, the requirement of public secularism is derived more specifically from the First Amendment’s Establishment Clause.  But for those who are scrupulous about original or intended meaning, grave difficulties attend this derivation (difficulties which we need not worry about here).  So it would be convenient for proponents of mandatory secular government to find a constitutional source or argument that did not depend on that vexed textual provision.  The Constitution’s general agnosticism presents an inviting possibility—one that advocates of public secularism increasingly seem inclined to use.

But there are also problems with using the Constitution in this way.  Simply as a matter of construction and logic, the argument is problematic:  “The Constitution is agnostic (or secular); therefore, governments operating under the Constitution must be agnostic (or secular).”  The proposition seems a bald non sequitur.  The Constitution basically establishes a structure of government for the United States; it does not spell out any particular substantive ideology or governing philosophy that government(s) either must or must not follow.

Consider:  One can imagine a church whose articles of incorporation and bylaws are written in purely secular legal terms.  It would hardly follow from the fact of a secular constitution that the church itself is prohibited from being religious.  In a similar way, the United States Constitution is basically a set of articles of incorporation or imposed bylaws for American governments.  From the secular character of those provisions no general requirement of public secularity need necessarily follow.

So the “secular government” conclusion seems dubious as a matter of straightforward constitutional construction.  But it is dubious as well as a strategy for dealing with religious pluralism.  Its difficulties were perhaps less apparent a generation or so ago, when most thinkers foresaw a “secular” future in which religious belief and practice were destined to dwindle. At that time, reading a requirement of public secularism into the Constitution might have been viewed as just a way of hurrying the nation along the path it was preordained to follow anyway—an acceleration that constitutional theorists or judges have sometimes thought to be a good thing (sort of like AP classes in high schools, perhaps?).  As it becomes increasingly apparent that secularization (in the sense of a withering away of religion, at least) is not imminent after all, however, the flaws in the secularism strategy become more conspicuous.

The central problem, I think, is that it becomes increasingly obvious that the “private religion/secular government” prescription is not, as its proponents might claim, somehow outside or above the cultural fray—independent of and neutral among the various competing religious or secular orthodoxies or “comprehensive doctrines.”  Rather, the public secularism position is, while perhaps not a full-fledged “comprehensive doctrine,” still a political orthodoxy of its own—one that is consistent with some of the competing orthodoxies and incompatible with others.  Its pretensions to “neutrality” are spurious. As a possible basis for community, it is one candidate among others.  To be sure, it might be the best candidate.  But then again, it might not.

The prescription of public secularism as a basis for political community compels reflection on the problematic relationship between community and belief.   Start with the obvious:  As Toqueville observed, for a “community” to flourish, there need to be common bonds that bring citizens into a union.  These bonds can no doubt be of various sorts—economic, historical, linguistic, and so forth.  They can even be fictional. Insofar as humans are believing creatures, however, a community will necessarily adopt some stance (even if one of detached unconcern) toward the various beliefs people hold dear.

Moreover, in their consequences for community, beliefs have a sort of double-edged character or potential.  If a community associates itself with beliefs that citizens hold, it can elicit their allegiance.  But insofar as it rejects their beliefs, or associates itself with beliefs they reject, it can cause them to become disaffected or alienated.  In a pluralistic society, obviously, this dual potential is particularly challenging because any beliefs the community might affirm in order to gain the loyalty of some citizens are likely to produce alienation in others.

So, what to do?  One strategy, preferred and practiced for centuries, essentially tries to eliminate divisive creedal differences by inducing or coercing citizens to share a common religion.  Due to the failure of that strategy in post-Protestant times, contemporary communities adopt other measures.  In part, they may attempt to unite citizens on bases other than belief—commercial interests, for example.  But in view of the continuing centrality of believing to humans, communities nonetheless have to find some way of making their peace with belief.  How to do that?

In its essence, liberalism (of which modern public secularism is only one version) tries to identify what is taken to be a “second-order” set of political beliefs—in equality or liberty or human rights—around which citizens hopefully can unite, while leaving other first-order beliefs—in specific religious or antireligious doctrines, perhaps—to the private sphere.  While the strategy arguably has achieved considerable success, it also provokes serious conflicts, as we see in the nation today.

The basic difficulty, I think, is not so much that some citizens reject the liberal division of beliefs into first-order/private and second-order/communal categories.  For rhetorical purposes, advocates often accuse their opponents of doing that.  My sense, though, is that nearly all Americans accept the distinction in some form—that hardly anyone wants the government to endorse (or condemn) infant baptism or the Nicean Creed.  We are all (or nearly all) liberals now, in this country anyway, in the core sense.  But Americans differ considerably about how and where to draw the line between what is private and what is properly public.  And many doubt that “secularism” is the proper device for drawing that line.

For example, and more specifically, it seems that some Americans—millions, perhaps—believe that, as George Washington declared, “it is the duty of all nations” (notice that the duty applies to nations, not just to private individuals) “to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor . . . .”⁴ They might even find themselves unable to give their full allegiance to a political community that refused to honor that duty.  Hence the national motto, “In God We Trust,” or the indignation that arises when, for example, a court orders the words “under God” to be stricken from the Pledge of Allegiance.

But other Americans, obviously, object to such expressions.  The disagreement between the two camps pervades and motivates many of the conflicts that we describe as the “culture wars.”  It is a daunting problem—the more so because we ought to be able to see, by now, that “public secularism” is not a neutral arbiter among those conflicts.  It is, rather, a banner for one camp of combatants.

III.
The Strategy of “ConstitutionalAgnosticism”

At this point, we may be able to appreciate the possibility of a different strategy for maintaining pluralistic community—one that we might simply call “constitutional agnosticism.”

This strategy grows out of the crucial fact that not everything that is affirmed by an agent—by a person, or a community—is constitutive.  This distinction, as well as the possibilities it opens up, can perhaps best be appreciated on a personal level.  We understand that a person is not identical to or constituted by his or her opinions—and a good thing, too, because otherwise, if a person held an opinion we found objectionable or obnoxious, we might have to regard the person himself as objectionable or obnoxious.  Instead we are often able to draw a distinction between the man and his beliefs, thinking, for example, “I love and respect John as a person, even though I find his religious and political views absurd.”

No doubt there are beliefs so central to a person that they become at least partially constitutive:  If the Pope were to repudiate Catholicism, or if Daniel Dennett were to become a fundamentalist Christian, we might think that these worthies were just no longer the same persons they used to be.  For the most part, though, we can distinguish between a person and his or her beliefs.  This distinction allows us to treat persons with respect even though we utterly reject their beliefs.

The same possibility is available, I suggest, with respect to communities.  A community can affirm or associate itself with various ideas or beliefs without these becoming fundamentally constitutive of the community.  As a result, it is possible to respect or profess loyalty to a community even while disagreeing with some or many of the beliefs the community, through its government(s), affirms.  Governments can express beliefs in accordance with democratic demands, thereby eliciting or solidifying the allegiance of citizens who hold such beliefs; dissenters, while less than happy with such expressions, can take comfort in the fact that the objectionable expressions are not constitutive of the community.

They can do this, at least, so long as dissenters can look to something beyond such expressions that is constitutive and that does not affirm the objectionable beliefs.  And here the agnostic Constitution serves a crucial function.  The question of what “constitutes” a community is complex, to be sure.  Still, it seems safe to say that the American Constitution is at least part of what “constitutes” the American political community—as supreme law and articles of incorporation but also as venerated symbol.  So long as the Constitution itself remains steadfastly agnostic, it will always be true that whatever expressions various governments at the local, state, or national levels may make, these are not ultimately “constitutive” of the political community.  Hence, a citizen may reject the expressions without rejecting the community itself.

So suppose, for example, that something like the national motto (“In God We Trust”) were adopted at every level of government—by Congress, by every state, and by every city and county in the land.  Citizens who are atheists would—do?—find this situation galling:  There would be no political entity in the country to which they might travel that would not affirm a belief to which they object.  Even in this lamentable (to them) situation, however, they would still be able to look to a more foundational political reality—the Constitution—in which such an objectionable belief is deliberately and conspicuously not affirmed.  And because that document and symbol—that agnostic document and symbol—is accepted as the community’s supreme and constitutive law, they could take consolation in the observation that the political community itself is not constituted by a commitment they reject.

This is not to say, of course, that such citizens will find this situation ideal—far from it.  Nor, for that matter, will the situation be ideal for more aggressively devout citizens who think that the community should not only associate itself with belief in God, but should constitute itself upon that commitment.  Just as atheists or agnostics might prefer a constitution that is not only itself agnostic but that prescribes agnosticism at every level of government, more devout citizens may embrace the view, energetically professed by some at the founding, in favor of including theistic language in the Constitution, as the Articles of Confederation had done.  And so they may support the sort of proposal that has periodically arisen in American history to amend the constitutional text by adding religious affirmations.

To alter the Constitution in either of these ways (or to so interpret it, as modern “no endorsement” jurisprudence episodically does), however, would subvert  the community-maintaining possibilities that the agnostic Constitution affords.

Conclusion

It is important to acknowledge that we have an agnostic Constitution, but equally important to recognize that we have an agnostic Constitution.  It is the Constitution that is agnostic, in other words, not politics or government.  Indeed, it is precisely the Constitution’s agnosticism that permits governments, at different levels and in different ways, to sponsor the sorts of religious expression that American governments have traditionally engaged in and that may well be important in securing what Lincoln called the “attachment” of citizens, while not making such affirmation constitutive of the political community.

In this way, the Constitution makes a valuable contribution to the project of maintaining community in a pluralistic world.  That contribution is not a panacea; it does not resolve the various conflicting views that are always a potential threat to political unity, but rather supports a strategy for negotiating with and among them.  Insofar as it is agnostic, the Constitution does not dictate any particular content to our civic creeds or affirmations.  It permits civic religion of the sort reflected in the national motto and the Pledge but does not command it—just as it permits but does not command public secularism.

Supplying the more specific substantive content of our public orthodoxies thus remains a perpetual project.  No doubt the content of our orthodoxies has varied—and will vary—from place to place and time to time.  This unsettled situation may leave theorists feeling queasy.  But it is precisely this open-endedness, I suggest, that makes the agnostic Constitution such an important contribution to the challenge of maintaining e pluribus unum.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Steven D. Smith is Warren Distinguished Professor of Law at University of San Diego Law Review.

This Legal Workshop Editorial is based on the following Essay:   Steven D. Smith, Our Agnostic Constitution, 83 N.Y.U. L. REV. 120 (2008).

Although the Duke Law Journal’s article, Milberg’s Monopoly: Restoring Honesty and Competition to the Plaintiffs’ Bar,¹ reflects a lot of effort by student author James McDonald, it is a very disappointing article in terms of analysis and reliability of information. Mr. McDonald and the Duke Law Journal are entitled to express their opinions on the important issues raised by class actions, but the article misapprehends many of the realities of class action law and practice, and repeats highly pejorative rumors and speculation about class actions as though they were fact.

By way of introduction and disclaimer, I was a partner in the Milberg Weiss firm for several years, and was an editor of the Duke Law Journal many years before that. I now practice and teach law.

The following are my principal concerns with the article:

1. Milberg Weiss did not suffer an “Enron-like collapse,” (p. 506), and is alive and well.

2. The federal prosecutors never charged, nor could they ever prove, that class members were harmed by the wrongdoing (p. 506). The best they could do when the trial judge asked them whether this was a “victimless crime” was to suggest that competing class action firms might have lost business to Milberg Weiss. The underlying cases were real fraud cases, prosecuted to judgments or court-approved settlements, yielding court-awarded attorneys fees. No client or defendant was disadvantaged by the wrongdoing, which affected only internal issues among class counsel as to leadership of the cases.

3. For the reasons stated in the prior paragraph, it is a gross overstatement to say that the tactics at Milberg Weiss were “as fraudulent and unethical as any action taken at Enron, WorldCom or Tyco.” (p. 507). Stockholders lost billions in those frauds, and the wrongdoing was central to the issuers’ businesses and was widespread. The vast majority of Milberg Weiss’s lawyers were uninvolved in the wrongdoing, and continue to represent investors and others, with court approval. Indeed, the Coughlin Stoia Robbins Geller & Rudman firm, partial successor to Milberg, was appointed to represent the investors in Enron despite ad hominem attacks like those in this article made by competing class action firms seeking competitive advantage from the indictment.

4. The term “strike suit,” (p. 507), is both pejorative and highly ambiguous in meaning. Contrary to the Note’s suggestion, it is most often used to refer to cases that have little merit but are filed to obtain a quick “cost of defense” settlement. That does not seem to be what the author means because few (if any) of the cases the author refers to were settled at that low level. It does not advance understanding of class actions to use such undefined (but highly charged) terms.

5. At page 508, Mr. McDonald says that Milberg Weiss breached its fiduciary duty to clients, but again, the Note provides no backup for that statement, and the prosecutors declined to state a theory for proving it.

6. Securities fraud cases do not pit stockholders against their own company. (p. 511). Rather, they pit stock purchasers during a period of alleged fraud (often far less than all stockholders, and including many ex-stockholders) against those who made false statements (officers, directors, accounting firms, investment bankers, et cetera, plus the company). The fact that business interests attack class actions by misdescribing them this way is not a good reason for the author to parrot this language. (Derivative cases do meet the author’s description, but derivative cases and class actions are different, and a serious legal journal should be able to keep them straight.)

7. To say that “many suits settled quickly for only a fraction of their potential worth” (p. 512) is the kind of vague attack we often hear on Capitol Hill. Nearly every civil case settles for a “fraction of its worth,” the only question being whether the fraction is three-fourths, or one-hundredth. Again, the author is repeating pejorative and empty phraseology employed by those unhappy with the fact that investors can band together and try to recover their fraud losses. Professor Janet Cooper Alexander’s article suggesting that all cases settle for the same fraction of their worth reached that conclusion by extrapolating from a grand total of three cases! It is rebutted in a piece I coauthored in the San Diego Law Review. Possibly the author’s research did not find it.

8. Mr. McDonald says that Mr. Lerach and his colleagues in California (I guess that would include me) “dreamed up” new types of claims and defendants, and went so far as to sue accountants, lawyers and bankers! There is nothing exotic about suing accountants for securities fraud, and lawyers (White & Case) were defendants in the first securities case I ever worked on, years before I joined Milberg Weiss. Bankers paid most of the billions recovered in Enron, so if we dreamed it up, it was a good thing.

9. The Note says that unidentified sources with whom the author has not spoken call Mr. Lerach a “Godfather-like . . . ruthless don” who demanded “tribute” from other law firms. (p. 514 n.60). This seems like a rather reckless statement to make without sources, and seems more appropriate to the pages of People Magazine than of the Duke Law Journal.

10. As the author points out, the 1995 Private Securities Litigation Reform Act (written by people who didn’t like class actions) placed large investors in a favored position as class action plaintiffs on the theory that large investors would know whom to sue, whom to hire as counsel, and when to settle. Thereafter, Milberg Weiss was retained by many large investors—public and union pension funds. Unable to accept a positive point that does not fit into his thesis, the author adds that “rumor suggests that Milberg Weiss paid a share of its attorneys’ fees to labor pension funds it represented.” (p. 532). I do not believe this to be true, nor have I ever read it anywhere else, and in any event, this type of rumor-mongering is really quite outrageous for an academic publication.

11. Mr. McDonald concludes, based on who knows what, that even after the 1995 Act, and separate and apart from the Milberg Weiss wrongdoing, “law firms continue to be chosen [for class actions] using suboptimal criteria such as personal relationships, as opposed to quality of representation.” (p. 533). How did he conclude this? Institutional plaintiffs choose law firms the same way corporate defendants do—location, reputation, prior relationships, price, et cetera. If institutional plaintiffs are choosing the largest, best funded, best staffed plaintiffs’ firms, and often using the same firm more than once, (p. 535) what exactly is wrong with that?

12. Even when the author trips over useful information, he misapprehends it. The reason securities lawyers were puzzled over the Milberg Weiss investigation and dubious about serious charges resulting therefrom (p. 533 n.188) is that they understood that what was being investigated was basically beside the point to securities litigators focused on the merits of their cases. (See next point.)

13. More generally, defense lawyers and other sophisticated players in this field (including judges) understand that the individual plaintiff does not run a class action, his lawyer does (with court oversight), and class action law recognizes this in many ways, for example, permitting counsel to settle a case even if the class representative does not support the settlement. Picayune disputes over who the plaintiff is, and whether he will “supervise” counsel bore serious litigators to death, because they are phony issues entirely collateral to the merits.

14. The author bemoans the lack of small firms obtaining lead counsel status (p. 535), but small firms do not get the defense side of class actions either, probably because these are not small cases.

15. Why should a pension fund that litigates one class action successfully be presumed less qualified to litigate another one (p. 541)? The author believes that constantly changing plaintiffs and constantly changing plaintiffs’ counsel somehow provides a public benefit, but it would appear more of a detriment to investors. Experience counts, and certainly is not a negative.

16. The author suggests that the class action market is dominated by “a few large firms seeking fast settlements.” There is no support cited for the latter half of this assertion, and it is simply wrong. The largest and best firms in this business settle some cases fast, settle some cases on the courthouse steps, and take some cases to trial. It is the smaller firms, and the neophytes, the very firms the author wishes to elevate, who often settle fast before they bankrupt their small law firms with a case that is more challenging than they suspected when they read breezy articles about the riches of class action lawyers.

I am sorry to sound so harsh toward a student piece, but Mr. McDonald chose a controversial topic, and having waded into deep water, he should have known how to swim better than this. I have spent thirty-five years in this field defending, prosecuting, and teaching class actions, and it is sad to read some of these misunderstood points, inaccurate allegations, and outlandish rumors in a publication I once served on, which is published at an institution I care about very much.

Acknowledgments:

Copyright © 2009 Duke Law Journal.

Len Simon is a former Partner at Milberg Weiss and a former Editor of the Duke Law Journal.

This Editorial is a response to the following full-length Note:  James McDonald, Milberg’s Monopoly: Restoring Honesty and Competition to the Plaintiffs’ Bar, 58 DUKE L. J. 505 (2008). Click here for the full version.

In the concluding section of the Opinion of the Court, Chief Justice Roberts looked to the history of Brown to support his claim that, subject to very limited exceptions, all racial classifications violate the Fourteenth Amendment’s Equal Protection Clause.  Yet the history of Brown that he settled upon was somewhat unusual.  Moving beyond the sources courts typically use to evaluate their own precedent, namely, the published text of past decisions, the Chief Justice drew upon historical materials that have typically been more the concern of scholars.  He looked to the words of the NAACP lawyers who successful argued Brown, quoting written briefs and oral argument statements of the civil rights lawyers as they made their case before the Court in the early 1950s, and he claimed to find in these words ample support for a “colorblind” or anticlassification reading of the Fourteenth Amendment.  Justice Thomas, in his concurring opinion, also drew upon the history behind Brown as supporting colorblind constitutionalism.

Both the Chief Justice and Justice Thomas quoted, for example, NAACP lawyer Robert Carter in oral argument in Brown when he stated: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”³ ”There is no ambiguity in that statement,” the Chief Justice explained.  “And it was that position that prevailed in this Court” in Brown.⁴

Justice Thomas took the historical analogy a step further, not only quoting from the NAACP lawyers as a way of bolstering the legitimacy of his sweeping anticlassification interpretation of the Equal Protection Clause, but also comparing the position of the Justices who dissented in Parents Involved to that of the lawyers in Brown who defended segregated schools. In “giv[ing] school boards a free hand to make decisions on the basis of race,” Justice Thomas wrote, the Parents Involved dissenters embraced “an approach reminiscent of that advocated by the segregationists in Brown v. Board of Education.”⁵

The dissenting Justices in Parents Involved also looked to the history of Brown for guidance.  Yet they did not focus on the history behind Brown as much as the history that Brown set in motion—a history that revolved around court-led efforts to decrease segregation in schooling through race-conscious policies.  ”There is a cruel irony in the Chief Justice’s reliance on our decision in Brown,” wrote Justice Stevens.⁶  “The lesson of history,” Justice Breyer explained, “is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration.”⁷

Chief Justice Roberts’s and Justice Thomas’s use of the NAACP arguments to strike down a school integration plan proved predictably controversial.  It was “dirty pool,” declared William T. Coleman, who had worked with the NAACP’s legal team in the Brown litigation.⁸  According to Jack Greenberg, Thurgood Marshall’s successor at the head of the NAACP’s Legal Defense and Educational Fund, Chief Justice Roberts’ reading of Brown was “preposterous.”⁹  “All others among surviving counsel for the Brown plaintiffs emphatically disagree with the Roberts characterization,” Greenberg commented, “and I am confident that those no longer with us would disagree too.”¹⁰

In this Editorial, I consider two questions raised by the use of Brown in Parents Involved.  First, what does this history of Brown actually say about the idea of a colorblind constitution?  And second, what is gained—and, as importantly, what is obscured—from this turn to history?  What are the lessons and limits of history when it comes to evaluating our most pressing constitutional disputes?

 
I.
Brown and the Colorblind Constitution—The Historical Record

Briefly summarized, the history of Brown shows the following.¹¹  The Chief Justice was more right than his sharpest critics allow in his characterization of the NAACP: the civil rights lawyers and their allies indeed expressed, repeatedly, in public and private statements, a deep commitment to the principle that racial classifications by the government violated the Equal Protection Clause.  Principles of colorblind constitutionalism inspired the efforts of many of the NAACP’s allies in the struggle against school segregation and, more generally, had a powerful presence in early post-World War II American society.  An anticlassification principle proved particularly attractive to a generation of liberals committed to a universalist ideology, which was premised on the idea that racial identity was a legal and moral irrelevance and that progressive racial policy should move beyond racial categorizations.  Colorblind constitutionalism was an integral element of the legal and moral challenge to white supremacy at the time of Brown.

Nonetheless, Chief Justice Roberts overstated his claim on Brown’s history in at least two ways.  First, colorblind constitutionalism was only one of a number of arguments offered by the NAACP.  During the litigation of Brown, lawyers advocating a blanket prohibition of racial classifications never put forth these arguments in isolation from other, more context-based, color-conscious arguments relating to the meaning of the Fourteenth Amendment.  At a time when the problem of “benign” racial preferences and affirmative action was rarely even considered, civil rights advocates easily moved back and forth between making anticlassification arguments and claims based on what has come to be know as “antisubordination” principles—a distinctly color-conscious interpretation of the equal protection requirement.  Furthermore, when the NAACP lawyers transitioned from defining the equal protection right to defining the scope of the remedy, they recognized the limitations of anticlassification arguments and looked increasingly to antisubordination arguments to guide the Court’s implementation of school desegregation.  To now isolate the lawyers’ anticlassification argument as their only, or even primary, constitutional claim in the school segregation cases fails to do justice to the historical record.

Yet even if we accept the Chief Justice’s implication that the NAACP was committed to an anticlassification argument, a second and more significant weakness of Chief Justice Roberts’ reading of Brown is his attempt to extrapolate the arguments of the advocates in Brown to reflect the views of the Supreme Court Justices as expressed in their school desegregation decisions.  The history on this point is quite clear: Although the members of the Brown Court considered basing their desegregation decisions on the anticlassification principle, this approach never came close to reflecting the positions of all nine Justices who committed themselves to the unanimous decisions; it would not have even secured a majority of the Justices at the time of Brown.  The Brown decision actually reflected a conscious effort by the Justices to not accept the general principle of colorblind constitutionalism—a conscious decision by a Court that sought to contain the reasoning of Brown so as to avoid the then hot-button topic of interracial marriage, which would logically fall under a sweeping colorblind rationale.  In arguing that the Brown court actually accepted the NAACP’s anticlassification argument, Chief Justice Roberts is simply wrong.

 
II.
Why History?

So this, in brief form, is what the history has to say.  Contrary to Chief Justice Roberts’ confident reading of selected NAACP quotations, the history of Brown and the colorblind Constitution contains plenty of ambiguity.  And in those places where ambiguity gives way to a measure of clarity—in those places where history indeed can be “heard”—the weight of history runs against reading the Brown court as adopting a sweeping anticlassification position.  Recognizing the limits of the historical record on this question brings forth still another, more foundational question: Why are we looking to the history of the legal battle against Jim Crow education for answers to the present-day dilemma of racially segregated and unequal schools?  Is historical analysis of this kind a useful or productive way with which to engage with these issues?

I must admit that as a historian who has spent countless hours researching the history of Brown, I am torn on the Court’s use of history in Parents Involved.  Any time the Court (or any public official for that matter) turns to history to better understand and explain contemporary social challenges, there is potential for adding depth—and hopefully increased wisdom—to a discussion.  There is of course much to be learned from the history of the struggle against Jim Crow schools.  And the words and experiences of the NAACP lawyers as they urged the Court to abandon Plessy surely have continued value and resonance as we today search for the appropriate standard for judicial oversight of voluntary school desegregation plans.

Yet when I read the Chief Justice’s Parents Involved opinion, in which he asserts that the position of the NAACP lawyers “could not have been clearer” and their statements have “no ambiguity” (cringe inducing assessments to any historian of this field), and therefore we can derive lessons of this history behind Brown in a straight-forward manner; or when I read Justice Thomas’s effort to equate the position of the four dissenters in Parents Involved with that of the lawyers defending state school segregation policy in the Brown litigation—then it is hard to avoid the most obvious question: What are we doing here?  Putting aside the obviously result-oriented use of history in these opinions (which is of course nothing new and not about to go away, as made clear in the recent originalist bonanza of Heller¹²), there remains the question of whether even a more thorough and balanced assessment of the history of Brown offers a useful way to engage with the debate over whether present-day pupil placement plans that take race into account to achieve some level of integration run afoul of the Fourteenth Amendment.

The reason for the historical turn in Parents Involved is not difficult to discern.  Regardless of ideological leaning, proclaiming one’s position as faithful to Brown is standard practice in cases involving racial segregation, particularly when the context is education.  Since the 1960s, when obeisance to Brown started to become required practice throughout American society, the debate has turned from the rightness of the decision to its meaning.  As people bow down to Brown, they also seek to reshape its meaning.¹³  Hence, today Brown is a centerpiece of the arguments of those who favor both anticlassification principles and antisubordination ones.

The turn to Brown also serves a special role for the proponents of colorblind constitutionalism.  The anticlassification principle that constitutes the heart of colorblind constitutionalism has little basis in the original meaning of the Fourteenth Amendment.  Its framers did not envision their creation as requiring a per se or even presumptive prohibition on laws that classify by race.  The legislators who in 1866 drafted the Amendment also passed distinctly color-conscious legislation designed to help the newly freed slaves.  And these same framers appeared to have little trouble squaring certain forms of segregation (including school segregation) with their understanding of the equal protection of the laws.  Mining the history of the framing and ratification of the Fourteenth Amendment for the roots of an anticlassification principle is a dead-end.¹⁴

Originalists who also favor color-blindness typically get around this embarrassing situation by a simple move: they ignore the history of the Fourteenth Amendment.  When Justices Scalia and Thomas defend their colorblind reading of the Fourteenth Amendment, they tend to paint with broad brushstrokes, citing seminal documents from American history and general principles of fairness, and relying heavily on rhetorical salvos.  It is the “letter and the spirit of our Constitution,” that demands colorblind constitutionalism, Justice Scalia has argued.¹⁵  Justice Thomas found the same conclusion in “the principle of inherent equality that underlies and infused our Constitution,” citing the Declaration of Independence for support.¹⁶  In his dissent in Grutter v. Bollinger, Justice Thomas opened with a quotation from Frederick Douglass and went on to claim that racial classifications “only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause.”¹⁷  And all colorblind advocates cite Justice Harlan’s Plessy dissent, the original source of the phrase “our Constitution is color-blind.”¹⁸  As justification for a reading of the Equal Protection Clause, the limits of this approach are obvious.  Skimming over two hundred years of American history and citing broad principles of equality, while rhetorically powerful perhaps, hardly provides anything approaching a historically grounded mandate for colorblind constitutionalism.

With the generally unsatisfactory options for making the case for the colorblind Constitution, the turn to the history of Brown in Parents Involved should not be surprising.  Failing to find what they want in the Fourteenth Amendment, and recognizing that rhetoric and policy arguments can only take them so far, anticlassification proponents look to Brown as the de facto constitutional basis for colorblind constitutionalism.  In this way, Brown became the battleground of choice in Parents Involved.

 
III.
Brown and History

It is ironic that the history of Brown has come to be such a looming presence in contemporary constitutional disputes, because the decision itself reflected an effort to limit the relevance of the past on the process of constitutional decision-making.  At the time of Brown, most assumed that the weight of history went against the cause of civil rights.  Segregationists routinely called upon history to attack what they saw as the dangerous idealism of integrationists.  The experience of Reconstruction, the most relevant potential model for racial reform in the mid-twentieth century, seemed to warn against precipitous social reform.  In his unpublished concurrence in Brown, Justice Jackson dismissed Reconstruction as “a passionate, confused, deplorable era.”¹⁹  This belief that the lessons of the past were an obstacle to change was mirrored in constitutional analysis.  When the Court was faced with the question of whether the Fourteenth Amendment could be construed to prohibit segregation in schools, the historical record seemed to favor the status quo.  The history of the framing and ratification of the Fourteenth Amendment, most assumed, revealed an original meaning that was consistent with the practice of school segregation. 

One of the great achievements of Brown was Justice Warren’s decision to acknowledge the limitations of history on the question of whether, in 1954, segregated schools were unconstitutional.  A critical turning point in the reasoning of the opinion was when Justice Warren concluded that a review of the framing of the Fourteenth Amendment, “convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced.  At best, they are inconclusive.”²⁰  Warren insisted that the Court face the problem of segregated schools in 1954 squarely. 

In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written.  We must consider public education in the light of its full development and its present place in American life throughout the Nation.  Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.²¹

The proud ahistoricism of Brown is one of its most remarkable characteristics. 

At the time, many celebrated Brown as a triumph of the present over the past.  Justice Reed, the most reluctant of the Justices to join Brown, described his reasoning in a letter to Justice Frankfurter shortly after the decision was announced.  “The factors looking toward a fair treatment of Negroes,” he explained, “are more important than the weight of history.”²²  A sense of relief that the Court was able to extricate itself from the morass of history was also found outside the Court. “It is futile to make war ‘to keep the past upon its throne,’” wrote Harvard Law School professor Charles Fairman in praising the Court’s decision.²³  Edmond Cahn of New York University Law School effused: “Never was Thomas Jefferson more clearly vindicated in his insistence that the Constitution belongs to the living generation of Americans.”²⁴

 
IV.
Overcoming History

Of the recent judicial efforts to evaluate the constitutionality of voluntary school desegregation plans, some of the most valuable words offered have been those of judges who, like the Brown Justices, question the relevance of history to this particular dispute, who ask whether efforts to align these cases with Brown is a productive way to engage with the difficult questions we face today regarding racial classifications, education, and the Fourteenth Amendment.  In a 2005 First Circuit decision that upheld a race-conscious school assignment plan in Lynn, Massachusetts, Judge Boudin put the issue into perspective:

The Lynn plan at issue in this case is fundamentally different from almost anything that the Supreme Court has previously addressed.  It is not, like old-fashioned racial discrimination laws, aimed at oppressing blacks; nor, like modern affirmative action, does it seek to give one racial group an edge over another (either to remedy past discrimination or for other purposes).  [T]he plan does not segregate persons by race.  Nor does it involve racial quotas.²⁵

Similarly, in the Ninth Circuit’s review of the Seattle case that was brought to the Supreme Court in Parents Involved, Judge Kozinski wrote: “[T]here is something unreal about their efforts to apply the teachings of prior Supreme Court cases, all decided in very different contexts, to the plan at issue here.  I hear the thud of square pegs being pounded into round holes.”²⁶

Of course any proposal regarding school and race must place itself on the side of Brown.  But Judges Boudin and Kozinski are surely onto something when they question how far to take the Brown analogy when evaluating constitutional challenges to locally initiated race-conscious school desegregation programs.  History provides guidance on these questions, but not answers—certainly not unambiguous answers.  Contrived historical forays result in avoiding the critical issues in the case at hand, they provide the illusion of an easier answer when, beyond some clever rhetorical turns (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”²⁷), none exist, and none should exist. 

Justice Kennedy’s concurring opinion might be read to rely on some of these insights.  While providing the fifth vote to strike down the Seattle and Louisville plans, Justice Kennedy pulled back from a strong anticlassification rationale, leaving open the possibility of certain race-conscious assignment plans that could survive constitutional scrutiny.  In his concurrence he touched on Brown only lightly and with none of the interest in its background history evidenced in the opinions of the Chief Justice and Justice Thomas.  Nonetheless, Brown plays an important symbolic role in Justice Kennedy’s concurrence.  He turned to Brown as a moderating influence, as a testament to the mixture of pragmatism and principle that is necessary to balance the compelling state interest in creating a diverse educational environment, while avoiding race-based solutions that risk “entrench[ing] the very prejudices we seek to overcome.”²⁸  Although committed to “[t]he enduring hope . . . that race should not matter,” for Justice Kennedy a sweeping dismissal of racial classifications is “not sufficient to decide these cases.”²⁹  “Fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution.”³⁰  If for Justice Kennedy the evocation of the ideal of the colorblind Constitution provides the aspirational principle, then Brown and the experience of school desegregation it launched demonstrate the pragmatic judgment necessary to move the nation toward this principle.

 
V.
Conclusion

The history of Brown does not offer any easy guidelines for the issues of most importance today.  The Justices and lawyers most responsible for Brown accepted both colorblind and color-conscious rationales for what they were doing.  These two rationales were generally assumed to be compatible; in the battle against Jim Crow, they both led to a more fair and racially integrated society.  To now demand of this history that it choose sides in our debate on the validity of colorblind constitutionalism is not to actually listen to the history.  As Edmund Cahn put it, in approving of Warren’s willingness in Brown to move away from 1868, “the past cannot be allowed to decide for us what it did not have to decide for itself.”³¹

The history of Brown also suggests the importance of recognizing the limitations of history in resolving our most pressing constitutional issues.  On the most difficult of our present-day disputes, history should open up questions, not preempt them; it should offer guidance, not unambiguous answers.  It should challenge entrenched assumptions, but without entrenching new ones.

In Parents Involved, the use of the history of Brown by Chief Justice Roberts and Justice Thomas was designed to end the discussion.  In an effort to defend a reading of the Equal Protection Clause that has little basis in the original meaning of the Fourteenth Amendment and generally relies largely on rhetorical salvos, these Justices portrayed Brown as a supposedly stable fixture of colorblind constitutionalism.  This flattened version of Brown not only fails to do justice to the history of Brown, it also reflects a misleading assumption that history offers an easier way.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Christopher W. Schmidt is Visiting Scholar, American Bar Foundation; Visiting Associate Professor, Chicago-Kent College of Law.

This Editorial is based on the following Essay:   Christopher W. Schmidt, Brown and the Colorblind Constitution, 94 CORNELL L. REV. 203 (2008). Click Here for the Full Version