From: akbloom@aplcen.apl.jhu.edu (Keith Bloom)
Subject: Re: Stare Decisis
Organization: The Johns Hopkins University
	<1992Jul29.050318.5832@aplcen.apl.jhu.edu>  
	<1992Jul29.115523.21815@eff.org>
Date: Thu, 30 Jul 92 05:50:20 GMT


mnemonic@eff.org (Mike Godwin) 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. 

It said that the *doctrine* of "separate but equal" has no place in
public education.  It was the *doctrine* of Plessy which was under
examination.  But this is turning into a "yes it is/no it isn't" type
of argument.  There's no real point in continuing.

>>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.

Sure it is.  *All* segregated public school systems which provide
equal educational opportunities to black and white students are
permissible.  But since the fact of segregation itself deprives black
students of equal opportunity, there are no such school systems.

>>Well, feel free to explain it.

I forget what I asked you to explain--oh yes, the fact/law distinction.

>There's an upper limit to how productive Usenet is when it comes to
>explaining matters of this sort....

Well, I think I have a rough understanding, anyway.  But I think you
missed the point of what I was saying.  *Yes*, courts apply principles
of law to the facts.  *Yes*, a court may decide that a particular
principle does not apply when the facts of a case are sufficiently
different.  That's what the Supreme Court did in Sweatt v. Painter,
when it decided that a black student must be admitted to an all-white
law school.  But facts can also determine a principle of law.  Brown
was not another Sweatt v. Painter.  The Court did not say that the
doctrine of Plessy v. Ferguson did not apply in Brown because the
facts were different.  It said that the doctrine could *never* apply
in public education.

>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.) 

Not quite.  Sweatt v. Painter didn't apply to public law schools
generally, only to Texas.  Another state could have argued that *it's*
separate black and white law schools were equal, even if those of
Texas weren't.

>>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.

And you believe that the Court was correct in making such a decision?
It's your opinion, then, that mandating racial discrimination is
constitutional if the facilities are *genuinely* equal?

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

Sigh.  I didn't say it was.  Implication is not identity.

>>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. 

It's no joke, but a serious response to Professor Wright's question.
He asked, if the facts were found to be different, would Plessy v.
Ferguson be back in effect.  Well, sure.  But the important point is,
that the facts have *not* been found to be different.

>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?

?!  Where did you get the idea that I was making fun of you?  Until
you decided to get testy, I thought this was a perfectly friendly
discussion.

I don't claim to be an expert on Brown.  I don't especially *want* to
be an expert on Brown.  I have a casual interest in law, particularly
constitutional law.  I'm only replying to you because I have an urge
to defend myself when I think I'm right, even when the issue is of no
importance.  (One of these years I'll have to see a psychiatrist and
get treated for that.)

I suspect that the main reason *you're* making an issue of the case is
that you used it in your recent pissing match--excuse me, discussion--
with Mr. Johnson.  But I'm not Mr. Johnson, so you can stuff the
sarcasm about my "degree of knowledge" of law.  If you don't mind.

>>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.

Oh, I see that the decision *does* mention equity powers, after all.
It's over here in footnote 13.  But it has to do with the remedies the
Court should apply if segregated schools are found to violate the
Fourteenth Amendment.  It has nothing to do with the issue of whether
they actually do.  Of course, the *remedy* has to be equity.  Brown
probably wasn't asking for money damages.

>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.

Well, I don't believe the Court used the word in Mapp v. Ohio, either.
So therefore, Mapp didn't overrule Wolf.


Keith
-----
   "The object of the [Fourteenth] amendment was undoubtedly to
    enforce the absolute equality of the two races before the law,
    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.  Laws permitting,
    and even requiring, their separation, in places where they are
    liable to be brought into contact....have been generally, if not
    universally, recognized as within the competency of the state
    legislature in the exercise of their police power.  The most
    common instance of this is connected with the establishment of
    separate schools for white and colored children, which have been
    [upheld] even by courts of states where the political rights of
    the colored race have been longest and most ernestly enforced."
	   -- Mr. Justice Brown, in _Plessy v. Ferguson_

   "We conclude that in the field of public education the doctrine of
    "separate but equal" has no place.  Separate educational
    facilities are inherently unequal.  Therefore, we hold that the
    plaintiffs and others similarly situated for whom the actions have
    been brought are, by reason of the segregation complained of,
    deprived of the equal protection of the laws guaranteed by the
    Fourteenth Amendment."  
	   -- Chief Justice Warren, in _Brown v. Board of Education_
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