ACSBlog: The Blog of the American Constitution Society

ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education, which Professor Klarman discussed in his recently published book, Unfinished Business – Racial Equality in American History. We hope readers enjoy the conversation over the next several days, and encourage your comments.

Part 2. A Perspective from Professor Mark Graber (see Part 1 here)

Professor Michael Klarman is the rare scholar whose works dramatically push the scholarly envelope while remaining accessible to the general reader. His Bancroft Prize winning From Jim Crow to Civil Rights is the first book that should be read by anyone interested in the history, law, and politics of American race relationships from the end of the Civil War to the present. Unfinished Business: Racial Equality in American History provides a terrific, short, reader-friendly account of the constitutional politics of race throughout American history. 

Commenting on these works is intimidating and difficult. Professor Klarman has forgotten a good deal more about the constitutional politics of race than I know. Worse, at least from the perspective of getting a good conversation going, I largely agree with Professor Klarman’s conclusions. The temptation is great to spend a week learning all the superlatives on my word processing program and then adding a quibble or two. Still, there does seem a point in his above post worth highlighting that may be more than a quibble.

Professor Klarman maintains that the Roberts Court’s decision in the recent school districting case was “an extraordinary perversion of the originalist understanding of [the Fourteenth Amendment] by justices who purport to employ an original methodology to questions of constitutional interpretation.” I am not sure. I want to suggest that just as the Supreme “Court has not reliably been on the progressive side of racial issues,” so the Constitution has been far more ambiguous than civil rights advocates are willing to acknowledge. The Court favors opponents as often as proponents of genuine race equality. The constitutional text, constitutional practice, and the American constitutional experience has historically provided both with plausible arguments for their positions.

The constitution of 1787 contained few explicit provisions on slavery and race. Citizenship was never defined. Federal power to promote human bondage or emancipate slaves, the international slave trade aside, was not specified. Antebellum compromises and silences about slavery and race provided all parties to the debates over the rendition process for fugitive slaves and status of slavery in the territories with the legal resources necessary to make professionally competent arguments for their preferred policies. The Constitution contained materials that Lincoln fashioned into a powerful argument against the expansion of slavery and materials that Chief Justice Roger Taney fashioned in an equally legally compelling case for guaranteeing slaveholders equal rights in the territories.

The constitution of 1868 clarified the constitutional status of slavery, but left the constitutional status of free persons of color unclear. The text of the post-Civil War Amendments can be and was cited by persons committed to broad federal intervention to secure a multiracial society or to federal power limited largely to preventing the re-enslavement of African-Americans. As a technical matter, the constitutional arguments in 1950 supporting racial segregation were probably as plausible as those that best justify the Supreme Court’s decision in Brown v. Board of Education.

Chief Justice John Roberts took advantage of this ambiguous constitutional heritage last June. Read ahistorically, the post-Civil War Amendments provide no indication that the struggle for racial equality in the United States has been the struggle against white supremacy. Canonical briefs and opinions produced in that struggle wax eloquent about a colorblind society and constitution. The Devil, progressives learned, can quote scripture as well. What is wrong with conservative constitutional principles is what is wrong with the trope that no “innocent” white person should ever suffer even a metaphorical harm. The status of this trope in the Constitution remains a matter for political struggle, a struggle not best conceptualized as restoring the principles of 1787, 1868, or even 1964.