Louis Seidman “Discovers” Justice Scalia’s Dissent in Brown v. Board of Education

March 10th, 2013

From the archives of history:

The Court’s somber and sonorous tones suggest that it imagines itself writing for the ages. In fact, something a good deal less portentous and more sordid is going on. The Justices of this Court have decided to sign on as a branch office of the National Association for the Advancement of Colored People.

I do not for a moment denigrate the aims of that organization. It has a right, like any other organization, to pursue its goals. This is, after all, America, and Americans have the right to file even frivolous law suits. But before today, I would not have thought that this Court has a right to foist its own trendy vision of our future on the rest of us. The American people may some day decide that a program of racial mongrelization is for them. So far as I can see, they have not decided this yet, and it is not for the Justices of this Court, isolated in their all-white enclaves, to decide it for them.

The Court is so preoccupied with rhetoric that it barely bothers to justify its conclusions. Where is the warrant for its sweeping declaration that separate is inherently unequal? In the Constitution’s text? The fourteenth amendment says not a word about integrated schooling.

In the intent of the framers? The Court itself concedes, as it must, that the framers intended no such thing. In our prior precedent? We have upheld the constitutionality of separate but equal facilities for half a century. In the traditions of the American people? Whether the majority of this Court likes it or not, we have a long and honored history of the separate development of the races.

No, the Court claims no support for its extraordinary holding in any of the usual sources of constitutional law. Indeed, the Court is so ashamed of the true support for its ruling that it has buried it in an obscure footnote. It would have us believed that it is justified in dismantling generations of social practice, upon which an entire society has been built, because of the color of some dolls that a few children have picked in a so-called experiment organized specifically for the purpose of winning this law suit.

Seidman’s “dissent” is actually quite similar to the  actual opinion of William Rehnquist on Brown. I’m not sure if these similarities were intentional.

After the Civil War, business interest came to dominate the court, and they in turn ventured into the deep water of protecting certain types of individuals against legislative interference. Championed first by Field, then by Peckham and Brewer, the high water mark of the trend in protecting the majority opinion in that case, Holmes replied that the fourteenth Amendment did not enact Herbert Spencer’s Social Statics. Other cases coming later in a similar vein were Adkins v. Children’s Hospital, Hammer v. Dagenhart, Tyson v. Banton, Ribnik v. McBride. But eventually the Court called a halt to this reading of its own economic views into the Constitution.

Apparently it recognized that where a legislature was dealing with its own citizens, it was not part of the judicial function to thwart public opinion except in extreme cases. In these cases now before the Court, the Court is, as Davis suggested, being asked to read its own sociological views into the Constitution. Urging a view palpably at variance with precedent and probably with legislative history, appellants seek to convince the Court of the moral wrongness of the treatment they are receiving. I would suggest that this is a question the Court need never reach; for regardless of the Justice’s individual views on the merits of segregation, it quite clearly is not one of those extreme cases which commands intervention from one of any conviction.

If this Court, because its members individually are “liberal” and dislike segregation, now chooses to strike it down, it differs from the McReynolds court only in the kinds of litigants it favors and the kinds of special claims it protects. To those who would argue that “personal” rights are more sacrosanct than “property” rights, the short answer is that the Constitution makes no such distinction. To the argument made by Thurgood Marshall that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are. One hundred and fifty years of attempts on the part of this Court to protect minority rights of any kind — whether those of business, slaveholders, or Jehovah’s Witnesses—have been sloughed off, and crept silently to rest. If the present Court is unable to profit by this example it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men. I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagues, but I think Plessy v. Ferguson was right and should be re-affirmed. If the fourteenth Amendment did not enact Spencer’s Social Statios, it just as surely did not enact Myrddahl’s American Dilemna.

On re-reading this, I realize that Rand Paul may have been more right about the relationship between liberty of contract and civil rights than he is given credit for.

H/T Seth Barrett Tillman