I disagree. Brown was the platform on which these later protests stood – it was the first official recognition that separate was inherently unequal. I’m not enough of a legal scholar to say how important the case was as a matter of law, but in term of import to society overall it was enormous. I imagine that if you ask the average American to name a supreme court case, if they can name one at all (and especially if they can only name one) this one would be at the top of the list.
Let’s also remember that had the court not set the “Separate but Equal” precedent in “Plessy”, we might not have needed “Brown”. All the court really did in that latter case was reverse an erroneous decision that had stood for 60 years, and allowed certain states to set up a system not unlike the Apartheid system in South Africa. How did that advance the cause of civil rights for Blacks?
Giving the Court power to set social policy is dual edged sword.
See my subsequent post. Which institution made “Separate but Equal” the law of the land?
That’s exactly right…and what I was getting at when I said letting the court set social policy is a risky propostion…it can go bad just as quickly…perhaps more quickly…than it can go well.
ETA: Horrible grammar there, but you get my meaning, I hope.
State legistalures did. The court backed it for a while, and finally came to realize what a fucked up system it was.
In some ways yes, in some ways no. *Brown *relied on extensive social science evidence, for example. This was very controversially, legally speaking, and still is. Also, of course, there were no public schools when the 14th amendment was passed. The case marked the first involvement of the court in controversial social problems.
As to whether Brown caused the social change or merely reflected it, this is a great book on the subject: Michael Klaraman, Brown, Racial Change, and the Civil Rights Movement. There is also considerable argument that Brownian desegregation actually hurt the plight of black people–in large part because it was a social policy written by a court instead of a legislature. See Derrick Bell, And We Are Not Saved.
I did not realize this about the social science evidence…very interesting, thank you.
I was going to mention this before, but didn’t have a good cite for it at the ready…I have read that there is a contingent among the black community who believes that the social change brought about by Brown is not a positive one.
[ nitpick ]
There have been public schools in the U.S. since before there was a U.S. The Northwest Ordinance of 1787 required that land be set aside for sale in each township with the funds being used to support education. Ten years before it became a state, Michigan required that each township of 100 families or more provide a school for the children living there. The anti-Catholic riots in New York, Philadelphia, Baltimore, and Louisville in the 1850s all centered on the public schools. It is true that there were few (no?) free schools (tuition paid by government) prior to around 1837 when Massachusetts, prompted by Horace Mann, organized theirs. However, by 1870, every state had such schools along with laws requiring attendance for some period of elementary education. I do not have the exact date for every state, but I suspect that the country did not go from six states with tuition-free public education to 37 states with similar laws between 1866 (14th proposed or 1868, ratified) and 1870.
[ /nitpick ]
I spoke too strongly. Here’s what the court said:
Not crazy talk, but it’s got two problematic implications:
- That we should just have one institution that is responsible for social change. As I see it, we’re all responsible at all times for making our society a better one. It’s not something we can turn on and off. A judge who unjustly makes the world worse for someone in the service of nothing other than the law is acting unethically, I believe.
- That institution you just invented? Congress? What if we give them the power to review judges. Then, maybe, when they’re trying to be an instrument of social change, they can make sure that judges who will create positive social change are installed. Nah, that’s crazy talk–I can’t imagine it’ll ever happen.
Daniel
You’re presupposing that people who agree with you on the direction of “positive social change” will always be in power. I would personally be afraid, in a framework like the one you’ve described above, that in a time of major conservatism and/or neanderthalism in the country, I, as a gay man, could possibly lose all of the rights I’ve managed to gain in the last 30 years because the country has sent people who disagree with my right to exist to occupy the positions that ultimately decide who to send to the Supreme Court. At least in the present position, they have to try to find a legal rationale for doing that to me.
It’s not so much the institution, as it is the people. We, the people, govern ourselves thru our duly elected officials. In a representative Democracy, Congress isn’t just some institution-- it is us.
That sounds nice, except we can’t all agree on what “positive” social change is at any given time, much less over the time period equal to a typical SCOTUS justice’s tenure. Once they’re in, their in for a good 20 or 30 years.
But, frankly, I can’t see any justice being confirmed who said during his or her confirmation hearings that:
I promise the Senate that if you confirm my appointment to the Court, I will use that institution to craft my vision of what is good social policy for the country. Trust me. I mean, the Constitution is nice and all, but what really matters is using the court to drive social change.
Most of us in this country would be aghast at such an arrogant statement. And rightly so. The justices should use their authority to interpret the Constitution as we who wrote it meant it to be interpreted. If we need to change it, we have the means to do so at our disposal. The constitution is not some divinely inspired document that needs a council of high priests to tell us what God meant when he wrote it. We wrote it. And we can re-write it if we need to do so, thank-you-very-much.
jayjay and John Mace have it exactly right here…who defines what is “right” and "wrong’ in terms of social change, and how influenced is that idea by culture?
What if the judge’s idea of what will make the world worse (or better) than someone else is radically different from yours? Is his or her decision based on his or her personally held opinion on the matter still inherently more ethical in your mind than basing it on the law?
You’re begging the question. You act as if “positive social change” is more or less commonly defined. It ain’t. You can’t name a single decision where there weren’t camps on both sides of the issue, constitutional issues aside. Who gets to decide what social change should be installed despite what the law actually says? Whoever is in power at the moment? That’s unethical, and it completely circumvents the constitutional powers they took an oath to protect. I accept that the law, even if constitutional, will not always lead to a circumstance I’d prefer. That’s not what is demanded of the law; that’s an objective lost at the start. No law pleases everyone.
Who are you, or who is a Justice for that matter, to decide what it “just” when that contradicts the will of the people as manifested within established law? SC Justices have one duty and opportunity to do so–when said law violates a stated precept of the Constitution. Period. You understand that the Congressional review you propose will be filtered through the sensibilities of whomever is in power at that point? Is that what you want? Really?
This thread is refreshing in that at least there are candid voices effectively stating, “Constitution be damned if supporting it violates a principle I hold dear.” Even the most activist of judges tries to create the illusion that what he opines is consistent with the Constitution, despite the fact that there are no actual, you know, words that support the opinion.
As an illustration of what I said here, think about Roe v. Wade. What if the court had a majority of justices who sincerely believed that, say, abortion is psychologically harmful to women, and that their ethical obligation on the bench was to protect women from this harm. Would you agree that upholding anti-abortion laws would be the ethical thing for these justices to do?
And what about Brown? Clearly, based on elucidator’s post, we can see that some people believe that this case was a smashing success in terms of social engineering, but as pointed out by Richard Parker, this is not a universally-held opinion. What if, 50 years from now, there is clear evidence that Brown actually caused more harm than good? I would say that it’s obvious that the court did what it thought was ethically right. But was it right? We may never know.
Well, I do, of course. For myself. You do for yourself. I want my vision of positive social change to win. It’s a contest with pretty serious results.
Daniel
Right…but that’s not the point. The point is, are supreme court decisions the proper catalyst for social change? What happens when the members of the court radically disagree with you? This seems to be a question you are dodging.
Oh, I fully agree. The problem is when Justices look at the same Constitution and come up on opposite sides of the decision. This happens all the time, you know. Sometimes it isn’t at all clear how to correctly apply the Constitution.
So, again, why shouldn’t I advocate for persons to be placed as Federal judges and Justices who are more likely to see the Constitution in a way that’s more in common with the way I do than the way the guys on the other side of our political wars do? Seems that’s a perfectly reasonable thing for me, as John Q. Citizen, to do in a representative democracy.
This sort of moral relativism drives me crazy. I do not believe in subjective morality: there is a right thing to do, and a wrong thing to do. Doing the wrong thing for the right reason means doing the wrong thing.
The right thing to do is to protect the right of a woman to have an abortion, in this case. If someone does the wrong thing, whether because they mistakenly believe it’s the right thing or because they think it’s what the law requires, they’re still doing the wrong thing.
I swear, this board has convinced me that moral relativism is so deeply ingrained in our intellectual culture that most people can genuinely not conceive of an alternative.
Daniel
I’m not dodging it. I’ve specifically said, let me quote myself, “we’re all responsible at all times for making our society a better one.” Are the times that a justice is rendering a decision a subset of “all times”? Of course they are. At the time when they are rendering a decision, they are, as they are at all times, responsible for making our society a better one. They don’t get a pass because they’re sitting in a particular seat. They must do that which makes for a better world, as must each of us at every moment.
What happens when they radically disagree with me? Well, sucky things happen, of course. That’s the same thing that happens when judges make decisions based on a strict reading of the constitution and those decisions radically disagree with me, or when Congress makes laws that radically disagree with my beliefs. Pointing out that we live in a world with sucky things is a bit irrelevant.
Daniel