BROWN, HISTORY, AND THE FOURTEENTH AMENDMENT.

• Author: Schmidt, Christopher W.
• Position: Constitutional Reconstruction: History and the Meaning of the Thirteenth, Fourteenth, and Fifteenth Amendments

This Article considers how scholars and jurists have approached the history of the framing and ratification of the Fourteenth Amendment. I use as a centerpiece of my inquiry the Supreme Court's confrontation with the Fourteenth Amendment's history in Brorun v. Board of Education? Although Chief Justice Earl Warren's Broivn opinion conspicuously sidesteps this history--he deemed the historical record "inconclusive" with regard to the issue of racial segregation in public schools' and cautioned against "turn[ing] the clock back to 1868" (5)--the lawyers and the Justices who contributed to this self-consciously a historical opinion spent a great deal of time with their clocks turned back to the 1860s. At one point in the litigation, the Supreme Court told the lawyers to reargue the case with a focus on the original meaning of the Fourteenth Amendment. (1) ' This produced what was at the time, according to Alexander Bickel, Justice Felix Frankfurter's clerk for the 1952-53 term, "the most extensive-presentation of historical materials ever made to the Court." (7)

I consider in this Article the various historical research projects initiated in response to the Court's reargument order. I give particular focus to that of the NAACP Legal Defense and Educational Fund, whose lawyers confronted a historical record that most people at the time believed stood in clear opposition to their argument that the Fourteenth Amendment should be read to prohibit state-mandated racial segregation. I also consider why the Justices, when it came time to write the Brown opinion, turned away from this history.

My examination of the history of Brown provides a starting point for a more general consideration of how different generations of scholars and jurists have approached the Fourteenth Amendment. The Broiun story showcases two basic approaches to that history--what I label Fourteenth Amendment pessimism and Fourteenth Amendment optimism. At the time of Brown, the pessimistic view dominated popular memory, historical scholarship, and the legal academy. It was premised on the view that the framing and ratification of the Fourteenth Amendment was not a particularly admirable moment in American history. The protagonists in this history were flawed figures who were moved not only by moral fervor but also by self-interest and vindictiveness. Their imprecise and inconsistent descriptions of the constitutional transformations they championed left behind for future generations more rhetoric than insight. Accepting this pessimistic perspective, the Brown Court treated the history of the Fourteenth Amendment as an obstacle to be pushed aside--a path that most supporters of the Court's ruling praised as necessary and wise.

The NAACP lawyers charted an alternate path, finding in the history of the Fourteenth Amendment a story of vision and heroism. Expanding on the work of a small group of scholars who had pioneered this optimistic approach in the decades preceding Broiun, the NAACP portrayed the Radical Republicans who led the drive for Amendment as men of principle with an "almost fanatic devotion" to the egalitarian ideals of the Declaration of Independence. (8) The Amendment was "the legal capstone of the revolutionary drive of the Abolitionists to reach the goal of true equality." (9) Many at the time-including some of the historians who helped the NAACP lawyers research their brief and the Supreme Court Justices who ordered the brief--dismissed the NAACP's brief as well-meaning but suspect as an effort of historical interpretation. Yet the confident Fourteenth Amendment optimism the NAACP articulated would echo in the work of future generations of historians and legal scholars.

The prevailing account of Reconstruction today resembles the NAACP's portrait far more than the pessimistic account that dominated at the time of Brown. Historians have tempered the more tendentious of the NAACP's claims about the original meaning of the Fourteenth Amendment. They have also expanded the cast of primary actors beyond the white radical abolitionists who dominated the NAACP's narrative. But the celebratory, even reverential attitude toward the constitutional project of Reconstruction that the NAACP brief advanced is now embraced by scholars and lawyers across the ideological spectrum. In recent years, originalist scholars, critics of originalism, and historians have all engaged in efforts to elevate Reconstruction to the stature of a "second Founding," accorded the same careful inquiry, legitimating status, and appreciation as the first. (10) I consider the significance of this development for present-day efforts to interpret the meaning of the Fourteenth Amendment.

BROWN AND THE HISTORY OF RECONSTRUCTION

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 defend against what they saw as the integrationists' dangerous challenge to the racial status quo. And even those with some degree of sympathy for the cause of racial equality generally saw the experience of Reconstrtiction, the most relevant potential model for racial reform in the mid-twentieth century, as a warning against precipitous social reform.

The Justices of the Broiun Court embraced, for the most part, the prevailing assumption in mainstream society that Reconstruction was an unfortunate and embarrassing episode of American history. Those Justices who expressed the most interest in bringing the historical record into constitutional analysis were often the most critical of the quality and value of that record when it came to Reconstruction. They generally accepted the premises of the Dunning School of Reconstruction history that dominated the first half of the twentieth century and presented Reconstruction as a lamentable example of misguided federal intervention into the South and political empowerment of African Americans." In a 1945 dissent, Justice Felix Frankfurter described the landmark civil rights legislation of the period as "born of that vengeful spirit which to no small degree envenomed the Reconstruction era." (12) Claude Bowers's The Tragic Era (1929), one of the most widely read texts of the Dunning School, was praised by Justice Hugo Black (13) and cited by Justice Robert H.Jackson in a 1951 opinion. (14) In his unpublished concurring opinion in Brown, Justice Jackson declared Reconstruction "a passionate, confused and deplorable era." (15)

Despite the Justice's expressed distaste for the history of Reconstruction--a sentiment leading constitutional scholars of the day regularly echoed (16)--the Court could not avoid engaging, to some degree, with the history of the Fourteenth Amendment when they considered whether that amendment prohibited state-mandated racial segregation in public schools. In Plessy v. Ferguson, (17) the ruling that the Court had to effectively override in order to strike down segregation in schools, the Court had relied on a claim about the framing of the Fourteenth Amendment to justify its decision upholding state segregation statutes. "The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law," Justice Henry B. Brown observed, "but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political [,] equality, or a commingling of the two races upon terms unsatisfactory to either." (18) It was hard to see how the Justices could avoid coming to terms with the history of the Fourteenth Amendment in their challenge to Plessy. Events particular to Brown dramatically heightened attention to the historical record. After first hearing oral arguments for Broxvn in the fall of 1952, the Justices remained divided. There was prohably majority support for the NAACP's position that segregated schools were unconstitutional, yet by the spring of 1953 that majority appeared slim. Justice Frankfurter particularly feared a sharply divided decision on this momentous issue, and he devised a plan to delay resolution of the case by asking the litigants to give a new round of arguments the following Term. (19) He suggested to his colleagues that they request reargument based on a series of questions they would pose to the opposing sides (and they would ask the Justice Department to participate again). (20)

Justice Frankfurter's unusual (21) proposal was not embraced by all the Justices. Justice Hugo Black, with Justice Douglas's support, objected in particular to the content of the questions. Black approached the history at a high level of abstraction and had little doubt that a descgregationist reading of the Fourteenth Amendment could be justified on originalist grounds. (22) He feared the proposed reargument order "would bring floods of historical contentions on the specific points we asked about which would dilute the arguments along broader lines. I doubt if it would be possible to isolate framers' views about segregation in the primary schools." (23) The other Justices disagreed. They welcomed the prospect of additional time to work out this volatile issue and gave their support to Justice Frankfurter's proposal. (24)

The reargument order listed five questions for the attorneys to consider in their briefs and oral arguments scheduled for the following fall. (25) The first question asked whether either the Congress that drafted the Fourteenth Amendment in 1866 or the states that then ratified it intended to outlaw segregation in the schools. The second question asked whether, assuming the research into question one revealed that the original intention of the Amendment was not the immediate abolition of school segregation, the Framers intended for the Amendment to grant either Congress or the courts the power to end school segregation at some later date. The third asked whether, in the absence of clear guidance from history...