From: mnemonic@eff.org (Mike Godwin)
Subject: Re: Stare Decisis
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Wed, 29 Jul 1992 11:55:23 GMT

In article <1992Jul29.050318.5832@aplcen.apl.jhu.edu> akbloom@aplcen.apl.jhu.edu (Keith Bloom) writes:

>Not only unjust, but also unconstitutional: a deprivation of equal
>protection.  That is what Earl Warren said.  And so the Court changed
>the rule.

No, the Court did not change the rule. The Court created an exception to
the rule. Without overruling Plessy, the Court said that *in the field of
education* separate is not equal. 

>Where do you get this from?  Where in the Brown decision did the Court
>say anything about equity powers?

You might try reading some of the commentary on Brown that was published
at the time. There's some good bibliographic information in the books I
recommended: in paticular see Richard Kluger's SIMPLE JUSTICE.

>All right.  Did the Court's decision in Mapp v. Ohio explicitly
>overrule Wolf v. Colorado?  If not, then I accept your point.  

Mapp is not analogous to Brown, as I keep telling you. The Court did 
not change a Constitutional interpretation--it imposed a judge-made rule,
the exclusionary rule. I'm not going to say anything more about Mapp in
this thread, since it's not the same kind of case as Brown.

>By "vacuously true", I mean that the set of cases which it covers is
>empty.  For example, if I said that all men over twelve feet tall have
>brown hair, that would be vacuously true.

I don't think "separate but equal" is "vacuously true" in this sense.

>In other
>words, the 1896 Court believed that its doctrine was not vacuously
>true, but the 1954 Court ruled that it was.

You're more or less imposing your own view on the Court here. That's not
what the language of Brown says.

>Well, feel free to explain it.

There's an upper limit to how productive Usenet is when it comes to
explaining matters of this sort. I can recommend some books on
jurisprudence if you like. Some good sources of basic jurisprudential
thought are H.L.A. Hart and Lon Fuller. For more modern mainstream
jurisprudence, see Ronald Dworkin.

>Huh?  First you say that (per Warren) there's no possibility of
>separate but equal educational facilities.  Then you say that there's
>no doubt that such facilities do exist.

There's a difference between publicly funded primary and secondary
education on the one hand, and private colleges on the other. There's
no contradiction if you stop to recall what Warren was talking about and
what I was talking about.

Incidentally, publicly funded law schools can't be "separate but equal"
either. (This was the holding of Sweatt v. Painter, which held the
segregation at my law school, the University of Texas, to be
unconstitutional, and which predates Brown.) But no one thinks the Howard
University law school, a private law school primarily for black students,
is inferior.  

>Which way do you want to have
>it?  You can't be saying that as a matter of *law* Howard is the equal
>of many other colleges, but as a matter of *fact* it isn't.  Or can
>you?

Howard University is a private institution. Hence no state action. Hence
no forced segregation by state officials. Hence no violation of the 14th
Amendment. 

>That's no explanation at all.  It merely repeats the question.  The
>Court used factual evidence because they were basing the decision on a
>factual finding.  *Why* were they basing the decision on a factual
>finding?  Was it because (a) plaintiff's brief made extensive use of
>such evidence; or (b) because there's a school of legal thought which
>held that courts *ought* to use sociological evidence; or (c) because
>politically, Earl Warren thought that his decision would have a
>greater effect if he wrote it that way; or (d)....

The answer to your question should be obvious. The Court relied on 
factual evidence (an unusual move for an appellate court) *because 
it could not say as a matter of Constitutional law alone that 
separate but equal was wrong.* In other words, it relied on the studies
listed in Footnote 11 because it was unwilling to overrule Plessy as a
matter of law.

>What do you mean?  That the Court was right in overturning racial
>discrimination in schools?  Even Robert Bork agrees with that.  Or do
>you think that a State has the constitutional power to mandate racial
>discrimination, *if* it could show that segregated facilities are
>in fact equal?

I don't think a state could actually meet the burden of proof to support
such a move. But in theory it could. The fact that it could in theory
is the significance of the failure of the Court to overrule Plessy.

>If a legal principle has a factual basis, and the factual basis is
>found to be incorrect, then the principle is incorrect.

I'm sorry, but jurisprudence doesn't work this way. A legal rule is
not merely a restatement of a factual finding.

>As you said
>yourself (supra), it was the *doctrine* of separate but equal which
>was under question.

Right. The issue was raised. But Plessy wasn't overruled.

>Instead, he wrote a much broader decision, finding
>that separate educational facilities for blacks *could not* be equal.
>He wrote:
>
>    "Does segregation of children in public schools solely on the
>     basis of race, even though the physical facilities and other
>     "tangible" factors may be equal, deprive the children of the
>     minority group of equal educational opportunities?  We believe
>     that it does."

Your gloss on what he says here is not accurate. Warren says "We believe
that it does." He doesn't say "We believe that separate but equal is
always a violation of the equal protection clause of the Constitution."
He does not say "We believe that it necessarily does." He does not say
"We believe that, as a matter of law, separate can never be equal." To a
Constitutional scholar, these omissions are just as significant as the
omission of "Our holding in Plessy v. Ferguson is hereby overruled."

>If Santa Claus climbed down people's chimneys on Christmas Eve, would
>he be guilty of trespassing?

Are you trying to be funny? Ha. Ha. 

>If the world were other than it is, we would have different legal
>principles than we do.  It isn't, so we don't.

I realize I'm only a lawyer who likes reading Supreme Court history,
and who regularly applies Con Law in his practice, and that therefore I do not
have the degree of knowledge about Brown, Earl Warren, and
"separate but equal" that you have. But there is the tenuous, wispy
possibility that I may know something about this case, and about how it
was decided. So, please try not to make fun of me, okay?

>Since the facts, as interpreted by Earl Warren, showed that separate
>but equal in education is *always* bogus, this is (at the risk of
>repeating myself) a distinction without a difference.

Sigh. I do not dispute that, to you, it is a distinction without a
difference. 

>I think I have a handle on it.  But where in Brown does Warren say
>anything about applying the Court's equitable powers?  (In fact, I
>don't recall reading such language in *any* Supreme Court decision.)

I think you need to read some commentary on the case. Try Herbert
Wechsler, for starters.

>Again, if you say that Mapp did not overrule Wolf, then I accept your
>point about Brown.

I'm not going to engage in comparisons of Mapp and Brown because the legal
principles at work are different. Mapp involves the adoption of a
judge-made rule.

>(Not that I think the question of whether Brown
>really overruled Plessy v. Ferguson, at this late date, is a very
>important one.)

Nor do I. Plessy is certainly no longer good law these days. But it wasn't
overruled in Brown. In a case like Brown, where the holding of a prior
case (Plessy) is being expressly reviewed for its Constitutionality, if
the Court intends to overrule the prior case, it explicitly says so, *and
it uses the word "overruled"*. This doesn't happen in Brown.

Now, before you launch into another multiple-hundred-line response to me,
please follow my advice and go read some commentary about the case, and
especially consult Kluger's and Schwartz's books.


--Mike



-- 
Mike Godwin,     |"Crime is contagious. If the Government becomes a law-
mnemonic@eff.org | breaker, it breeds contempt for law; it invites every
(617) 864-0665   | man to become a law unto himself. It invites anarchy."
EFF, Cambridge   |         --Brandeis, J., dissenting in Olmstead v. U.S.  
Newsgroups: misc.legal