From: mnemonic@eff.org (Mike Godwin)
Newsgroups: misc.legal
Subject: Re: Stare Decisis
Date: 26 Jul 92 17:21:51 GMT
Organization: Electronic Frontier Foundation
Originator: mnemonic@eff.org

In article <1992Jul26.161559.2347@aplcen.apl.jhu.edu> akbloom@aplcen.apl.jhu.edu (Keith Bloom) writes:

>I think you're being overly picky.

Keith, with all due respect, I don't think so. Brown v. Board of Education
certainly *could* have explicitly rejected the notion that, as a matter of
law, separate could be equal. The Court chose not to do that, preferring
to ground its decision in a fact-based analysis. This is why Footnote 11
is so significant, relying as it does on Clark and Myrdal.

>  Brown v. Board of Education:
>
>-- Mentioned Plessy v. Ferguson by name in several places;

Right. But a mention is hardly the same thing as an overruling.

>-- Specifically stated that the doctrine in Plessy was applicable to
>   the present case, in contrast to several previous discrimination 
>   cases in which the doctrine was not challenged;

Right. Brown v. Board of Education specifically raises the issue of
whether the doctrine of separate but equal, articulated in Plessy, is
valid.

>-- Said, almost in so many words, that Plessy was no longer good law.

Here I disagree with you. The Court does not say this in Brown. What it
says is that the facts in Brown make clear that the application of
separate-but-equal doctrine in school districts leads to unequal treatment
under the law.

Now, it's worth pointing out that *subsequent* decisions have *used* Brown
as if the case overruled Plessy explicitly, and I think this is where some
common confusion lies. For example, the civil-rights cases in the '50s and
'60s in which Brown is cited often cite the case without any discussion
for the proposition that separate but equal is not valid in the case at
bar.

I think it is safe to say that, here in 1992, Plessy is no longer
considered good law. *But this is not because it was overruled by Brown.*
It wasn't.

There are two good sources of information on the background behind the
anti-segregation decisions. The single best source is Richard Kluger's
fine book SIMPLE JUSTICE, which is a historical account of NAACP Legal
Defense Fund's efforts to end segregation in America, and the results of
those efforts. A second good source is Bernard Schwartz's book SUPER
CHIEF, which is an account of Earl Warren's tenure on the Court.

>True, Warren said that the factual basis of Plessy was invalid.  I
>suppose that even after Brown, someone could have cited it as a
>precedent in a transportation case.

Right. Of course, these days nobody would.

>But legal principles usually 
>have some kind of factual basis (I hope).

Well, sure. But who says separate-but-equal doesn't have "some kind of
factual basis." There are countless instances of separate facilities (the
washrooms in public buildings, for example) in which separate facilities
can be considered equal. 

>In Mapp v. Ohio, Justice
>Clark talked about the "current validity of the *factual* grounds upon
>which _Wolf_ was based."  (emphasis added).  Should we also throw out
>Mapp, as not meeting Mr. Starr's requirements?  (What do you say, Mr.
>Starr?)

When you say "also," what are you referring to? I don't think anyone's 
"thrown out" anything. In any case, Mapp is not comparable to Brown,
since Mapp signals the adoption of the exclusionary sanction, which is not
itself an issue of Constitutional interpretation. (The exclusionary rule
is not mentioned in the Constitution, whereas "equal protection under the
laws" is.)


--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.