Balkinization  

Monday, January 01, 2007

Bill Russell, Constitutional Consciousness and Dred Scott

Mark Graber

The great Boston Celtic center, Bill Russell, observed that his effectiveness on defense was best measured by how few opponents attempted to take shots close to the basket and not by how many shots he blocked. Great shot blockers, he noted, often do not block many shots. Their value lies in how their mere presence forces teams to adjust their offense and shoot from great distances. Baseball fans may similarly note how the outfielders with the weakest arms are often the outfielders who throw out the most runners trying to take an extra base. Few try taking that extra base on the better outfielders. Shot blockers and good outfielders are most effective, in this view, when they do not appear to be doing anything.

Constitutions, I believe, are also most effective when they do not appear to be doing anything. The United States Reports, which contains extensive arguments over what the constitution means, may be the worst place to look when measuring the influence of the Constitution of the United States on American politics. Cases typically get to the Supreme Court only when reasonable persons on both sides dispute what the constitution means. We may better understand the influence of constitutions by considering what is being being litigated or even seriously debated at particular times and in particular polities. Consider, for example, the numerous arguments against the Constitution made in Sandy Levinson's book on the right. We may disagree about their overall merits, but I think almost everyone would agree that a reasonable case can be made against a life tenured judiciary, state equality in the Senate, or a virtually unremovable president. Indeed, these practices seem to exist only when they were constitutionally mandated more than a hundred years ago. We might expect, for example extensive challenges to state equality in the Senate had the Constitution decreed, " All states shall be fairly represented in the Senate." Nevertheless, outside of the legal blogosphere, no debate exists on state equality in the Senate. As is the case with a good shot blocker, the constitution functions by creating a kind of consciousness that prevents issues from even arising in partisan politics. A corollary to this thesis is that issues are likely to arise and prove relatively enduring only when standard constitutional sources do not provide clear answers to the relevant constitutional questions.

The central argument in Part I of the sacred Dred Scott book is that the arguments made by the justices in the majority were, as a matter of legal craft, as constitutionally plausible as the arguments made by the justices in the minority. I do not assert that the arguments in the majority were flawless (all parties had to strain and ignore or distort crucial elements of the American constitutional tradition) and I do not assert that, as a matter of constitutional law, Taney was right and Curtis was wrong. My position is simply that, as a matter of what we might call constitutional sociology, when constitutional debates have long wracked a society, a high probability exists that all parties to the controversy are making claims that are rooted in constitutional history, text, precedent, structure, and aspirations. I believe, with some argument (perhaps bad argument) that this was true of Dred Scott in 1857, Brown in 1954, and Roe in 1973. This is why, by the way, I am inclined to think legal formalism is unlikely to provide the tools necessary to resolve longstanding debates.

If I am correct in my underlying beliefs about constitutional sociology, then the likelihood is very low that presidents will nominate justices, conservative or liberal, that are out of the mainstream, and the possibility of the Supreme Court making a series of decisions that do not fit important strands of the American constitutional tradition is even lower. Thus, our constitutional debates ought to focus more on which elements of our constitutional tradition are more desirable in light of our best understanding of justice and which are likely to preserve the public peace (a central theme of the last section of the Dred Scott book).

I should note in light of a discussion going on in the comments section that, as is the case with a high percentage of academics, I very much hope people buy and read my books because I hope to persuade you of certain ideas. This may not be true for Richard Posner et al, but no one I know has made a living or has even been able to pay good private school tuition on royalties from universit press books.

Comments:

“The likelihood is very low that presidents will nominate justices, conservative or liberal, that are out of the mainstream, and the possibility of the Supreme Court making a series of decisions that do not fit important strands of the American constitutional tradition is even lower.”

Actually, the Constitution provides that all judges are bound by it in Article VI, so the likelihood of nominating and confirming justices who say that they will make decisions that do not fit “important strands of the American constitutional tradition” is zero, as it should be.

"The arguments made by the justices in the majority were, as a matter of legal craft, as constitutionally plausible as the arguments made by the justices in the minority."

What is the plausibility of the majority opinion that Congress could not ban slavery in the territories in the light to the following language? “The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” The words are not difficult. What is the problem?

Lincoln and the dissenters said this meant what it said, and that their position was supported by the framers and contemporaneous opinion. The majority said that the words did not mean what they said and disregarded long historical precedent banning slavery in territories.

Readers may judge for themselves whether Taney’s outright disregard of the Constitution and his oath to be bound by it was a “constitutionally plausible matter of legal craft.” I don’t think it was.
 

But, of course, Article I, Section 8 declares that "Congress shall have Power . . . (t)o exercise exclusive legislation in all Cases whatsoever, over such District . . . as may . . . become the Seat of the Government." As every good southerner noted, this was the language the framers used when they wanted to vest Congress with unlimited authority. "Power to dispose of and make all needful Rules and Regulations respecting the Territority or other Property belonging to the United States" seems to grant far less power. How much less is an open question. But it is worth noting that, unlike Lincoln, southerners at least had a theory of why Article IV reads differently than Article I. One might also note that in debates over territorial matters not concerning slavery before 1820, Americans divided over whether Article IV was the source of Congressional power to govern the territories. Lincoln ignored this as well. Again, I should emphasize that I do not think the Lincolnian position unreasonable, but just want to note that Taney and other slaveholders could make a perfectly plausible Akhil Amar textualist move against Lincoln, and that they had a good deal of historical precedent on their side (probably as much as Lincoln). As Gerald Newman notes in a very good book on territories and the United States, no consensus existed in the United States on the precise location and scope of congressional power over the territories. Such issues were contestable before and after slavery, though, not surprisingly, all parties, Lincoln and Taney, in the debates over slavery took the position they believed privileged their preferred policy.
 

Viewers can read the language for themselves. They can also access Dred Scott and the Cooper Union address online. The wording of the Territories clause is in fact broader than the District clause. Congress only has exclusive legislation over “cases” in the Seat of Government, whatever that means. Congress has the additional power to dispose of a territory and thus to sell it back to Mexico and Russia if it wanted to. It can make all needful rules and regulations in a territory, rather than just enact legislation regarding cases. It is true that white slaveowning southerners had a theory, but they had theories on nearly everything, mostly wrong. So there was a debate in the 1800s on the source of congressional authority over the territories. Lincoln was right and the white southern slaveholders were wrong. It may have been an open question then, but not any more. The clauses are very comparable, and the District Clause was used to free the slaves in DC in 1862. The southerners did not like that application of their “theory.”

What is the point of reopening these questions now, arguing that all sides of this question were contestable, when they have all been settled? Why is this topic, which reopens old wounds, now billed as one of the most important in 2006. Sure, any good lawyer can argue any side of any case, but we are dealing with orders of magnitude here. Sure there were unsettled questions in the 1800s. But this seems like a prolonged argument to ignore the words of the constitution as long as there are some plausible arguments in the briefcase to go outside the strands of the American constitutional tradition.

How does it help us today to argue for the legal equivalence of the arguments of Lincoln and Taney? The southern slaveholding judges and lawyers argued for a system that enslaved human beings, bought and sold them as chattels, and tortured them with horsewhips, and sought to expand that system into the free territories. Lincoln, the lawyer, argued eloquently that the constitution may unfortunately protect evil where it already existed, but that Taney’s attempt to project it into the territories was a usurpation.

Lincoln put his signature on the law freeing slaves in DC, on the Emancipation Proclamation, and on the engrossed copy of the Thirteenth amendment sent to the States (online at Library of Congress). He freed the slaves, all of them, forever. He saved the Union. His constitutional opinion at Cooper Union was correct and has since been vindicated. He got it right. Taney may have had plausible, faithful, or contestable arguments, but he got it all very wrong, legally, historically and morally. Let us all as lawyers and citizens emulate Lincoln, not Taney.

I was in the stands 50 years ago when Bill Russell won his first NBA Title, defeating St. Louis in the seventh game of the finals 125-123 in double overtime on Saturday afternoon, April 13, 1957, and I have followed his career and writings since then. I don’t think I would want to be the one who told Mr. Russell that, in the Dred Scott decision, “the arguments made by the justices in the majority were, as a matter of legal craft, as constitutionally plausible as the arguments made by the justices in the minority.” Or that a constitutionally "faithful" judge could come to the awful conclusion that blacks had no rights that whites were bound to respect. Or that Lincoln should have been defeated in the election of 1860.

By the way, there is nothing in Article V preventing Senate reform, if you really want it. Simply ratify an amendment to take away all its authority, leaving it with only ceremonial powers. Look at the House of Lords, which can only delay legislation for one year. Look at the Governor’s Council in Massachusetts. When reformers failed to eliminate it, they cut its duties back to confirming judges (and collecting campaign contributions from legions of aspiring lawyers). The new Senate would preserve equal suffrage under the Constitution.

And just which President is virtually immune from removal? In the US, he or she gets a four-year term, and only one shot at reelection. The House can impeach the President for anything it feels like, and the Senate can remove the President from office for any reason at all. This was all made clear in 1999. This is not exactly presidente-for-life.

I hope the lifetime tenure of judges will enable them to stop a temporarily elected majority from detaining and torturing people.

Maybe the reason that amendments to these provisions are not debated is that no one wants them. Thank you for an interesting exchange.
 

Professor Graber:

My position is simply that, as a matter of what we might call constitutional sociology, when constitutional debates have long wracked a society, a high probability exists that all parties to the controversy are making claims that are rooted in constitutional history, text, precedent, structure, and aspirations. I believe, with some argument (perhaps bad argument) that this was true of Dred Scott in 1857, Brown in 1954, and Roe in 1973.

I would make a different proposal - parties making claims before a court simply believe that they have a viable chance to prevail before that court. If the court is of the type which writes its own policy preferences into the Constitution and appears to favor the policy preference of the plaintiff, then the plaintiff will pursue the claim regardless of whether plaintiff's argument lacks a basis in the actual text of the Constitution.

Your citation to Brown and Roe prove my point I think. There is no basis in the Constitution for either Court ordered desegregation or a right to abortion. However, the plaintiffs in both cases pursued their claims because they correctly believed that the Supreme Court would rewrite the Constitution in their favor to insert these public policy preferences.

This is why, by the way, I am inclined to think legal formalism is unlikely to provide the tools necessary to resolve longstanding debates.

Legal formalism (to the extent that you mean it to be synonymous with original meaning or textualism) does not claim to provide the tools necessary to resolve public policy debates. Rather, most textualists like myself would argue that public policy debates should be left to the democratic branches of government and that courts are limited to applying the law as it is, not how judges would like it to be.
 

I trust that Mr. Depalma will be as appalled as I will be at the predicted judicial imperialism of the Roberts Court if and when it strikes down voluntarily and politially accountable school assignment plans in Seattle and Louisville because they take race into account (since there is not a scintilla of text that prevents such a practice, unlike, say, barring access to the ballot on grounds of race).
 

Professor Levinson:

I trust your last post was meant to be tongue in cheek.

To the contrary, I would be appalled if the Roberts Court did not enforce the plain meaning if the EPC to strike down Seattle and Louisville's regulations assigning educational benefits on the basis of racial preference.
 

Am I wrong to think that most of the controversy in Dred Scot was unnecessary? As I understood it, a slave who passed through a slave state or territory did not become free a result of transient passage, and even if the slave stayed there long enough to become free if he stayed and brought suit, he was out of luck once he returned to a slave state. If so, wasn't Scot's case doomed regardless of the power of Congress over the territories?
And, by the way, what is the usual royalty rate on a book like yours? Maybe if you taught a required course and wrote a casebook.....
 

"Bart" DePalma says:

Your citation to Brown and Roe prove my point I think. There is no basis in the Constitution for either Court ordered desegregation or a right to abortion.

A unanimous decision by nine Supreme Court justices says "Bart" is wrong. Who to believe, who to believe.....

"Bart" might think about reading Richard Kluger's Simple Justice (available from other booksellers too for those that prefer other than Amazon). There we find that there was one recent justice that agreed with Bart ... but who lied under oath about it when questioned on the subject.

Cheers,
 

Dred Scott is a classic (though by no means the only) example of the kind of judging so many here deplored in duscussing Judge Posner -- choosing the outcome first and then reasoning backward to find a justification.

Professor Garber, I think, makes a fine case that once you pre-determine the outcome, any theory of constitutional interpretation can be manipulated to reach it. The fault is not with any particular constitutional theory, but with manipulating theories to justify a pre-determined result.

I am not convinced that the Dred Scott decision could be reached by following these theories to their logical conclusion. The reason Justice Curtis's dissent reads better than Taney's decision is not just that we like the outcome better. It reads like honestly following the law to see where it goes, rather than manipulating the law to one's choosing.
 

As I understood it, a slave who passed through a slave state or territory did not become free a result of transient passage, and even if the slave stayed there long enough to become free if he stayed and brought suit, he was out of luck once he returned to a slave state.

The case was originally argued on this basis. Missouri had previously taken the view that residence in a free state sufficed to free the slave. It overruled that precedent in Dred Scott on the ground that northern states were not being fair about slavery, so it wouldn't be fair in return (that's a paraphrase, but a reasonable one). Scott then brought the action in federal court and argued that federal law applied to his status based up residence in IL and MN. That issue hadn't previously been decided.

I am not convinced that the Dred Scott decision could be reached by following these theories to their logical conclusion. The reason Justice Curtis's dissent reads better than Taney's decision is not just that we like the outcome better. It reads like honestly following the law to see where it goes, rather than manipulating the law to one's choosing.

I agree. I was not convinced by Prof. Graber's historical or legal arguments about Dred Scott.

Your phrasing also nicely dovetails with Prof. Tamanaha's plea for formalism.
 

arne:

Exactly which part of the Constitution grants the judiciary the power to affirmatively order the busing of students from one school to another for the purpose of achieving a racially proportional student body?

There is a fundamental difference between the Court properly finding legal segregation to be a violation of the EPC and striking it down and quite another to engage in legislation establishing a busing regime to achieve a public policy goal.
 

"Bart" DePalma says, as legally ignerrent as ever:

Exactly which part of the Constitution grants the judiciary the power to affirmatively order the busing of students from one school to another for the purpose of achieving a racially proportional student body?

First of all, Brown I didn't order busing. Maybe "Bart" is of the opinion that Brown I, 347 U.S. 483 (1954), is fine and settled law; if so, perhaps he could confirm that.

Second, even the Brown II decision didn't order busing:

"In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

"While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

"The judgments below, except that in the Delaware case, are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case - ordering the immediate admission of the plaintiffs to schools previously attended only by white children - is affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion."

Brown v. Board of Education (Brown II), 349 U.S. 294,300 et sec. (1955)

Note that the only specific remedy given by the Supreme Court -- of ordering the admission of blacks to the segregated whites-only schools in Delaware -- has nothing to do with busing.

More legal ignorance from our resident 'scholar' "Bart", who also was kind enough to edjoomakate me once on the 'fact' that SJ motions can't be properly entertained until all discovery is complete (a fact that came as complete news to me).

Perhaps "Bart" is simply unejoomakated as to equal protection law and is confusing the Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) decision with the racist RW's favourite whipping boy, "Brown v. Board of Ed.", a decision that got these fine folks' panties in such a knot as to cause them to agitate for the impeachment of a Republican chief justice.....

Cheers,
 

"Cases typically get to the Supreme Court only when reasonable persons on both sides dispute what the constitution means."

If you define "reasonable" in a way which reduces this to a tautology, I might agree. Not otherwise.
 

OBTW, for "Bart"'s further education, Swann v. Charlotte-Mecklenburg, 402 U.S. 1 (1971), was also a unanimous decision....

I do hope that "Bart" takes the time to read "Simple Justice" (and perhaps some of the actual cases involved) before he comments again....

Cheers,
 

Bart DePalma writes, in response to my posting about the upcoming cases involving Seattle and Louisville, ". . . I would be appalled if the Roberts Court did not enforce the plain meaning if the EPC to strike down Seattle and Louisville's regulations assigning educational benefits on the basis of racial preference."

I confess that I am genuinely flabbergasted, for whatever else can be said about the Equal Protection Clause, that it is a "plain meaning" is not one of them. "Equality" is the very example of what political philosophers call an "essentially contested concept." Neither in the text of the Fourteenth Amendment nor in the surrounding history is there a singularly clear theory of equality. I suggest that Mr. DePalma read Doug Rae et al, Equalities, which argues, altogether convincingly, that there are 108 logically coherent notions of equality. I am not saying, incidentally, that Mr. DePalma is "wrong" in his particularly take on equality, only that there is nothing remotely "plain" about it. If he wishes to defend it (and he has lots of good company with him), he must don the mantle of a political theorist (not that there's anything wrong with that).
 

Professor Levinson:

I confess that I am genuinely flabbergasted, for whatever else can be said about the Equal Protection Clause, that it is a "plain meaning" is not one of them. "Equality" is the very example of what political philosophers call an "essentially contested concept."

I do not dispute that the term "equality" can have multiple meanings in different contexts when applied to different situations under different disciplines.

The argument I am making is that the text of the EPC has a plain meaning under the law which bars racial preferences in the assignment of educational benefits by Seattle and Louisville.

As always, let us begin with the actual words of the EPC: No state shall...deny to any person within its jurisdiction the equal protection of the laws.

I would suggest that the arguments offered by Rae and his colleagues in Equalities concerning equality of group outcomes do not appear to apply to the EPC. The term "any person" makes it clear that the EPC applies to the the rights of individuals, not of groups. Furthermore, there is no mention of guaranteed group social outcomes in the EPC. Rather, the EPC merely guarantees that that individual citizens enjoy equal protection under the laws enacted by the States.

In the case at issue, Seattle and Louisville are denying plaintiffs equal access to government educational benefits on the basis of their race.

The meaning of "equal protection of the laws" appears to be pretty plain to me in this context.
 

States routinely discriminate by geography, as, I suspect, does Seattle. So the issue is if the state can say to an individual child, "you must attend Mediocre High and cannot attend Wonderful High because you live South of Newbridge Road" why is that consistent with equal protection, but not "you must attend Mediocre High and cannot attend Wonderful High because you are of a certain race." In both cases, benefits are being allocated unequally for reasons having nothing to do with merit (and if you think there is some choice involved in living south of New Bridge Road, other examples can be given). Hence, the need for some theory of equality.
 

"Bart" DePalma ignores my other points and continues his own tirade:

The argument I am making is that the text of the EPC has a plain meaning under the law which bars racial preferences in the assignment of educational benefits by Seattle and Louisville.

Unfortunately for "Bart", the Fourteenth Amendment didn't say anything particularly specific about "the assignment of educational benefits" (nor did it define any of those three multisyllabic words). It's turtles all the way down ... and that's one (but not the only one) of the failings of "Bart"'s favourite version of "strict construction" or "originalism".

That being said, Prof. Levinson's objection still stands: Even for "Bart"'s newly erected goalposts (which are far from the Brown I decision, as I pointed out and "Bart" has yet to concede, despite specifically criticising "Brown" in his first post), he can yell "Plain meaning! Plain meaning!" all he wants but that won't make it so.

Cheers,
 

Is it my imagination, or is Bart performing an artful dodge here? He began by saying, "Your citation to Brown and Roe prove my point I think. There is no basis in the Constitution for either Court ordered desegregation or a right to abortion. However, the plaintiffs in both cases pursued their claims because they correctly believed that the Supreme Court would rewrite the Constitution in their favor to insert these public policy preferences." This certainly sounds as though he is attacking the legitimacy of Brown and saying that schools may classify children and deny them access according to their race.

On his next post he says, "There is a fundamental difference between the Court properly finding legal segregation to be a violation of the EPC and striking it down and quite another to engage in legislation establishing a busing regime to achieve a public policy goal." This would appear to accept Brown as legitimate, but reject court-ordered busing.

In his final post, he says, "[T]he EPC has a plain meaning under the law which bars racial preferences in the assignment of educational benefits by Seattle and Louisville. . . In the case at issue, Seattle and Louisville are denying plaintiffs equal access to government educational benefits on the basis of their race." That is, of course, exactly what the schools were doing in Brown.

Bart, in short, is changing the subject even as we speak. Taken to their logical conclusion, his positions would hold at once that schools may exclude children because of their race, but not include children because of their race. How strange!
 

"Bart" DePalma says:

As always, let us begin with the actual words of the EPC: No state shall...deny to any person within its jurisdiction the equal protection of the laws.

I would suggest that the arguments offered by Rae and his colleagues in Equalities concerning equality of group outcomes do not appear to apply to the EPC. The term "any person" makes it clear that the EPC applies to the the rights of individuals, not of groups. Furthermore, there is no mention of guaranteed group social outcomes in the EPC. Rather, the EPC merely guarantees that that individual citizens enjoy equal protection under the laws enacted by the States.


If "Bart" is a fan of originalism, then perhaps he'd look at the context of the enactment of the Reconstruction amendments. This wasn't about protecting the rights of cowboys on the lone prayyy-reeee to sing their songs of cow lust.

But if we're to take "Bart"'s ahistorical conception of "equal protection" as simply a magnanimous and sweeping grant to all of the same privileges enjoyed by anyone else, then I guess we can sign "Bart" up for the defence of gay marriage: If Adam can be wed by Eve, then surely there can be no legitimate bar to Adam instead being wed by Steve.

Cheers,
 

Mark Graber wrote:

States routinely discriminate by geography, as, I suspect, does Seattle. So the issue is if the state can say to an individual child, "you must attend Mediocre High and cannot attend Wonderful High because you live South of Newbridge Road" why is that consistent with equal protection, but not "you must attend Mediocre High and cannot attend Wonderful High because you are of a certain race." In both cases, benefits are being allocated unequally for reasons having nothing to do with merit (and if you think there is some choice involved in living south of New Bridge Road, other examples can be given). Hence, the need for some theory of equality.

Just to help "Bart" along with some clues along the way, the original busing cases (e.g., Swann) arose because of the interactions between the de jure and de facto segregation that had existed, and the persistence of segregation even after it was formally outlawed. This was always a "balancing" (as even Swann recognised) of what was possible and what was practicable in reducing segregation in schools (even with -- or despite -- the persistence of residential segregation). Not all cases went for busing; see the Millikan cases for cases where geography (or more accurately, political subdivisions) trumped equal protection. In addition, the courts did realise that at some point it would be judicially impossible to remedy the last lingering effects of the sad past segregation and racial prejudice, and that court intervention would have to end, just as a practical matter (see Freeman v. Pitts). That hardly means that equal protection interests were not being addressed in Seattle. If we're to take "equal protection" to mean "equal opportunity for all", we've still got a problem that will remain as long as schools are left in the unequal condition they're in, given the prevalent patterns of funding, etc.

Cheers,
 

And getting back to the original subject:

[Mark Graber]: My position is simply that, as a matter of what we might call constitutional sociology, when constitutional debates have long wracked a society, a high probability exists that all parties to the controversy are making claims that are rooted in constitutional history, text, precedent, structure, and aspirations. I believe, with some argument (perhaps bad argument) that this was true of Dred Scott in 1857, Brown in 1954, and Roe in 1973. This is why, by the way, I am inclined to think legal formalism is unlikely to provide the tools necessary to resolve longstanding debates.

Well, yes, I agree. It is true that there's good, well-supported, and welll-argued arguments on both sides, and that there is no "legal formalism" that will unravel the Gordian knot here and reveal all once and for all in its unbearable lightness of being. The only fly in the ointment of Graber's point here is that the arguments of those on the other side -- fine as they may be -- are wrong, if not totally misguided or outright dishonest, as I repeatedly demonstrate here. Which may explain my brief tenure in the legal profession. ;-)

Cheers,
 

Mark Graber said...

States routinely discriminate by geography, as, I suspect, does Seattle. So the issue is if the state can say to an individual child, "you must attend Mediocre High and cannot attend Wonderful High because you live South of Newbridge Road" why is that consistent with equal protection, but not "you must attend Mediocre High and cannot attend Wonderful High because you are of a certain race."

Unless you are claiming either that the State decides where students live or the State is intentionally creating schools which are better than others, I am having a hard time seeing how the State can be accused of discriminating when all students are going to their neighborhood schools.

In the case at hand, the government is intentionally creating better schools and then denying access to this public benefit on the basis of race.
 

Enlightened Layperson said...

Is it my imagination, or is Bart performing an artful dodge here? He began by saying, "Your citation to Brown and Roe prove my point I think. There is no basis in the Constitution for either Court ordered desegregation or a right to abortion. However, the plaintiffs in both cases pursued their claims because they correctly believed that the Supreme Court would rewrite the Constitution in their favor to insert these public policy preferences." This certainly sounds as though he is attacking the legitimacy of Brown and saying that schools may classify children and deny them access according to their race.

"Court ordered desegregation" is not the same thing as striking down government ordered segregation. In case this was not clear, see my next post.

On his next post he says, "There is a fundamental difference between the Court properly finding legal segregation to be a violation of the EPC and striking it down and quite another to engage in legislation establishing a busing regime to achieve a public policy goal." This would appear to accept Brown as legitimate, but reject court-ordered busing.

There are two Brown decisions - (Brown I) Brown v. Board of Education, 347 U.S. 483 (1954) and (Brown II) Brown v. Board of Education, 349 U.S. 294 (1955). The first held that de jure segregation violated the EPC and the second held that courts may legislate forced bussing of students to achieve desegregation.

I have no problem with the court finding laws compelling segregation to be unconstitutional. Such a ruling complies with the meaning of the EPC and does not exceed the Court's Article III powers.

I have a big problem with the court assuming Article I power by legislating the forced busing of children.
 

"Bart" DePalma says:

There are two Brown decisions - (Brown I) Brown v. Board of Education, 347 U.S. 483 (1954) and (Brown II) Brown v. Board of Education, 349 U.S. 294 (1955). The first held that de jure segregation violated the EPC and the second held that courts may legislate forced bussing of students to achieve desegregation.

<*SHEESH!*> No sense of shame whatsoever and still clueless. After I point out the cases to "Bart" and after I point out that neither Brown I nor Brown II (but rather Swann) dealt with busing to achieve desegregation, "Bart" has the brass ones to pretend that he knew the cases beforehand (he really didn't, you know) ... and he still gets it wrong. Brown II did not "h[o]ld that courts may legislate forced bussing of students to achieve desegregation" (you can look it up). "Bart" once again makes up a "holding" after it's been pointed out that this assertion is wrong.

You can lead a horse's a$$ to water.... Now maybe people can see why I consider "Bart" nothing better than a two-bit troll and worthy of nothing but scorn, ridicule, and the deepest contempt.

Cheers,
 

Further random comments on the original subject:

While "legal formalism" provides no cure for Constitutional (or even statutory) interpretation, the same difficultines with the imprecision and ambiguity of natural language (i.e. English) also apply in spades to the use of common law and precedent (stare decisis). Judges write at length, and are no better nor worse than legislators in explicating the "rules" they lay down (not to mention being hampered by the same difficulties in anticipating all conceivable future combinations of circumstances even shold they want to lay down lasting rules for the future for all cases). British court opinions read like the ramblings of a bunch of old men over brandy in the drawing room, and early U.S. decisions are similarly opaque and unfocused. More recent formalism of practise in writing opinions, setting out guidelines for putting forth statements of the case, ratioales, holdings, etc. ease the problem a little, and legal review, keynotes, synopses, and "formal" Sheperdisation of the "state of the law" also help, but nevertheless, there's plenty to argue about (particularly when parties start grabbing bits and snippets out of context that support their case, and simply quote them without delving into the thought processes that must have animated the decisions (sound familiar, "Bart"? Thought not...). The distinction between dicta and holdings is important; dicta are one judge's personal thoughts, but are not any part of a prior decision. Speculation as to what might have happened had facts been different may be interesting, but can't count as established law. Confounding dicta with the rationale or the holding (in particular, using dicta that goes against the holding, perhaps on a different case or factual presentation) is not legitimate. "Bart" needs to take note of this. But perhaps his preference for "plain meaning", and for letting the legislature decide judicial cases when "Bart" doesn't have a "plain meaning" that he's particularly fond of, is due in part to the fact that he has nary a clue as to how to differentiate dicta from the meat of a case.

Cheers,
 

Doublethink is the holding of two contradictory beliefs simultaneously, fervently believing both, and being unaware of their incompatibility. George Orwell.

"There is no basis in the Constitution for … Court ordered desegregation…."

"I would be appalled if the Roberts Court did not enforce the plain meaning if the EPC to strike down Seattle and Louisville's regulations assigning educational benefits on the basis of racial preference."
 

Vince Treacy said:

Doublethink is the holding of two contradictory beliefs simultaneously, fervently believing both, and being unaware of their incompatibility. George Orwell.

There's an unstated assumption there: That the person in question is capable of thinking in the first place. Near as I can tell, he's a cut'n'paste 'bot.

Cheers,
 

Over at History News Network, Mark Graber wrote an article Was the Dred Scott Decision Morally Wrong but Still Legally Correct? He wrote:

The crucial issue in Dred Scott was whether the due process clause of the Fifth Amendment gave persons a right to bring slaves into the territories. Contemporary scholars scoff at this right, insisting that Congress has the power to ban persons from bringing any form of property into the territories. What is clear to present commentators was not clear before the Civil War. Antislavery Republicans declared that the due process clause protected the property rights of white settlers moving westward. "[T]he slaveholder [would have] the same [political] right to take his negroes to Kansas that a freeman has to take his hogs or his horses," Abraham Lincoln informed his fellow citizens, "if negroes were property in the same sense that hogs and horses are." As Lincoln’s statement indicates, the main bone of contention between Taney and most antebellum northerners was whether the generally understood right to bring property into the territories entailed a right to bring human property into the territories. Once the issue is so defined, the holding in Dred Scott seems reasonable. As the Chief Justice stated, “no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description.” If, as Lincoln believed, the constitutional law of property entitled northerners to bring their farm animals into the territories, that [then] a good (though not compelling) case can be made that the same constitutional law of property entitled southerners to bring their farmhands into the territories.

So there you have it. In Graber’s own words, the holding in Dred Scott seems reasonable, if the issue is defined as “whether the generally understood right to bring animal property into the territories entailed a right to bring human property into the territories.” If you assume that humans were the same as hogs and horses, then the opinion becomes a “good (though not compelling) case.”

Graber notes that the Chief Justice stated that “no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description.” I believe the word Taney and Graber are seeking leaps out at you from the first three words of the Constitution: “We the People.” Taney read the word people to exclude black people (even freedmen in the north). Well, Graber is entitled to his view that this was reasonable at the time, but I do not think Taney’s opinion was a reasonable position, then or now. It was an extremist position then held by only by southern slaveholders, but uniformly rejected by the abolitionists who wanted to eliminate slavery, and the centrist Republicans who wanted to isolate it. It is rightfully universally rejected today.
 

Bill Russell, Constitutional Consciousness and Dred Scott

The title of Graber’s article is patronizing and demeaning to Bill Russell, because there is far more to Russell than shot blocking. In addition to his play, he was also the first black coach of a major league team, the first black coach to win a championship, and the only black coach to win consecutive championships. He has written or collaborated on several thoughtful biographies and memoirs, and these are recommended to all. He was a militant champion of civil rights throughout his career, in the teeth of withering racism and hostility. Once again, I personally do not want to be the guy that explains to Mr. Russell that Taney’s opinion was reasonable, or made a good (though not compelling) case, if only you assume that the right to bring animal property into the territories entailed a right to bring human property into the territories. But be my guest. Good luck.
 

The sacred Dred Scott book (now available for 14.50 at Amazon!--hey, I've got another kid applying to an expensive college)….

You could sell a lot at the sites for Southern Heritage, Lost Cause, the South Will Rise Again, and other neo-confederates.
 

Vince Treacy said...

Doublethink is the holding of two contradictory beliefs simultaneously, fervently believing both, and being unaware of their incompatibility. George Orwell.

"There is no basis in the Constitution for … Court ordered desegregation…."

"I would be appalled if the Roberts Court did not enforce the plain meaning if the EPC to strike down Seattle and Louisville's regulations assigning educational benefits on the basis of racial preference."


Let me help you see the difference.

If the Supreme Court finds the Seattle and Louisville racial preferences to be unconstitutional, then they have taken the negative action of striking down a law.

However, when the courts ordered the forced busing of students to establish racial diversity, they took the affirmative action of legislating new law to achieve a public policy purpose.

This is the difference between stopping others from exceeding their authority under the Constitution and the courts exceeding their own authority under Article III.
 

Bart wrote: “Let me help you see the difference. If the Supreme Court finds the Seattle and Louisville racial preferences to be unconstitutional, then they have taken the negative action of striking down a law. However, when the courts ordered the forced busing of students to establish racial diversity, they took the affirmative action of legislating new law to achieve a public policy purpose.”

No, that is not what you said. There was nothing in either of your postings about busing. Citing Brown, you wrote that there is no basis in the Constitution for “Court ordered desegregation.”

Then you wrote that you would be appalled if the Court did not strike down regulations assigning educational benefits on the basis of racial preference

Only now do you write that you object “when the courts ordered the forced busing of students to establish racial diversity.” That is not the same thing. Not one word in Brown dealt with busing.

In Brown, the Court was in fact “stopping others from exceeding their authority under the Constitution” when it told the states that they could not segregate their schools by race. The Court took the negative action of striking down their laws. You said there was no basis in the Constitution for it.

But you now think that enforcing the plain meaning of the Constitution requires the Court to stop the states from assigning educational benefits by race, and to take the negative action of striking down the regulations in Seattle and Louisville.

These are two contradictory beliefs, held simultaneously. Both are fervently believed, without awareness of their incompatibility.
 

Bart wrote: “Let me help you see the difference. If the Supreme Court finds the Seattle and Louisville racial preferences to be unconstitutional, then they have taken the negative action of striking down a law. However, when the courts ordered the forced busing of students to establish racial diversity, they took the affirmative action of legislating new law to achieve a public policy purpose.”

No, that is not what you said. There was nothing in either of your postings about busing. Citing Brown, you wrote that there is no basis in the Constitution for “Court ordered desegregation.”

Then you wrote that you would be appalled if the Court did not strike down regulations assigning educational benefits on the basis of racial preference

Only now do you write that you object “when the courts ordered the forced busing of students to establish racial diversity.” That is not the same thing. Not one word in Brown dealt with busing.

In Brown, the Court was in fact “stopping others from exceeding their authority under the Constitution” when it told the states that they could not segregate their schools by race. The Court took the negative action of striking down their laws. You said there was no basis in the Constitution for it.

But you now think that enforcing the plain meaning of the Constitution requires the Court to stop the states from assigning educational benefits by race, and to take the negative action of striking down the regulations in Seattle and Louisville.

These are two contradictory beliefs, held simultaneously. Both are fervently believed, without awareness of their incompatibility.
 

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