Black on Brown

The most important and illuminating early writing on Brown v. Bd. of Education is a nine-page essay by Charles Black. Black memorably shows that segregation was a crucial part of a racial caste system. At the same time, he cuts through legal abstractions that made it difficult to answer the question whether the Court’s decision was sufficiently “neutral.” At the same time, Black’s argument suffers from two serious problems: formalism and institution-blindness. Black writes as if his interpretation of the equal protection clause can be simply read off the clause, and he does not engage the complex institutional problems that were raised by the Court’s decision. Nonetheless, the legal culture needs more voices like Black’s. Of all the early writing on Brown v. Bd. of Education, the most striking is a ninepage essay by Charles Black. Black’s essay is striking because of its simplicity, its concreteness, and its realism—its clear statement of what the system of segregation did and meant, and of the relationship between that statement and Black’s reading of the Constitution. For three reasons, Black’s essay is worth careful consideration today. First, it gives a vivid sense of the social realities that Brown actually confronted—a sense that was entirely missing from the legal culture at the time, and one that often seems to have been lost in contemporary discussions of the Brown problem. Second, Black’s essay offers a distinctive understanding of what the equal protection clause should be taken, above all, to forbid: the maintenance of a caste system. That understanding of the clause seems to me correct, and it bears on a number of issues today. Third, Black provides a sophisticated and morally committed version of a certain approach to constitutional * Karl N. Llewellyn Distinguished Service Professor, University of Chicago Law School. 1 347 US 483 (1954). argument, one that retains considerable influence. I think that for all its virtues, his approach suffers from the serious vices of formalism and institutional blindness. In particular, Black’s approach suffers from its failure to see the issues that have arisen as a result of the institutional turn of post-1980s constitutional law. We can learn a great deal about Brown by reading Black sympathetically. We can learn something about constitutional interpretation by reading him skeptically. Let us begin by listening to him. I. The Sovereign Prerogative of Philosophers Black begins with a two-part argument that he describes as “awkwardly simple.” First, the equal protection clause is best read to forbid state law from significantly disadvantaging the Negro race as such. Second, segregation counts as a massive intentional disadvantaging of the Negro race as such. “No subtlety at all. Yet I cannot disabuse myself of the idea that that is really all there is to the segregation cases. If both these propositions can be supported by a preponderance of argument, the cases were rightly decided.” Black attempts to support the first proposition by reference to precedent. In several cases, the Court had seemed to endorse it. To be sure, Plessy v. Ferguson appeared to be “a faltering from this principle.” But even in Plessy, the Court did not repudiate the principle. On the contrary, the Court found it necessary to show that any disadvantaging from segregation was produced not by state law, but by the “choice” of those who construed it as a form of disadvantaging. Hence the fault of Plessy lay not in 2 See Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale LJ 421 (1960). 3 See Cass R. Sunstein and Adrian Vermeule, Interpretation and Institutions, 101 Mich L Rev 885 (2002). The institutional turn has many strands and can be found in many places. See, e.g., Gerald Rosenberg, The Hollow Hope (1993) (emphasizing limitations of courts in producing social change); Mark Tushnet, Taking the Constitution Away from the Courts (1999) (raising doubts about judicial review); David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996) (emphasizing common law approach toward Constitution). For my own views, see Cass R. Sunstein, One Case At A Time (1999). 4 Id. at 421. 5 Id. 6 163 US 537 (1896).