Priscilla L. Luoma
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“They were enslaved by law, emancipated by law, disenfranchised and segregated by law; and, finally, they have begun to win equality by law.”
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- Justice Thurgood Marshall
Was the Framers’ act of ratifying the Constitution the equivalent of “[m]aking a covenant with death?” Throughout the convention in Philadelphia, the southern delegates repeatedly threatened succession thereby winning the North’s acceptance of the practice of slavery, despite the North’s often strong reservations about it. There were too many men like Roger Sherman of Connecticut who had “declared his personal disapproval of slavery but refused to condemn it in other parts of the nation” (Finkelman 214). Sherman’s willingness to compromise for the sake of a union could not be more remote from the patriots unwillingness to tolerate injustice. The memory of the colonists secession from Great Britain was still green. While it was the patriots’ cause to resist unjust government through risking their lives, it was the Framers’ (particularly those from the North) cause to create a union, whatever the cost. The hypocritical and paradoxical nature of the argument for slavery seems impossible to ignore from our current perspective, but “we cannot grasp the founders’ own understanding of the Constitution unless we see the pervasiveness and importance of this fear of civil conflict” (Burt 44). Some of the Framers prophetically cautioned that the nation at some point would pay a blood price for the legal sanctioning of slavery. “Although some had expressed concern over the justice or safety of slavery, in the end they were able to justify their compromises and ignore their qualms” (Finkelman 224). The Framers believed that because so much was at stake there was no room for debate over the ethical nature of slavery. In fact, much of the talk of slavery was focused on taxation and representation and not the morality of slavery. Despite a conscious understanding of the inconsistency applied in administering the equality principle, the practice of slavery was sanctioned by the federal government. “Only after four years of unparalleled bloodshed could the union be made more perfect, by finally expunging slavery from the Constitution” (Finkelman 225). The benefit of maintaining a bond, a union, for which slaves were further sacrificed, was almost lost. The Civil War was the ultimate segregation debate. Instead of forcing discussion and examination of the hypocritical stance they were taking as guardians of liberty and equality, they let the open wound of slavery fester and nearly caused the amputation they had longed to avoid. “It took a bloody civil war before the thirteenth amendment could be adopted to abolish slavery, though not the consequences slavery would have for future Americans” (Marshall 4).
Brown v. Board of Education
is another legacy of the Framers’ failure to acknowledge legally the injustice of slavery, a civil ideological war that was decided, again, in the interests of furthering the goal of a “more perfect union.”
This case is particularly relevant to the make-up of our student body. The right to equal education was hard won yet our school is primarily Black. What are we doing in
Brown
? Is equality the key to liberty and happiness? Are all-Black or all-White schools necessarily a bad thing? Is it more important that moral imperatives be publicly acknowledged than that individuals be truly invested in the otherwise imposed change? The argument, judgment, and result of
Brown
supports Madison’s theory that the individual must give his consent in being ruled.
Brown provides important evidence of America’s changing ideology. The doctrine, “separate but equal,” set down as law in
Plessy v. Ferguson
was derived from an originalist interpretation of the Constitution. The rationale was that the Justices should interpret the Constitution as closely to the Framers’ original meaning as possible. It was thought that the way to maintain the stability of the nation was by treating the Constitution like the Puritans treated the Bible. Our creators, the Founders of our nations’ government, gave the words to us. Another parallel to Puritan philosophy that existed was the belief that only particular individuals were endowed with the ability to accurately interpret the words. Since its ratification, the Supreme Court has increasingly taken on the role of interpreter. To alter the original intention of the Constitution would be to take the law into one’s own hands. The Constitution is the supreme law of the land, the glue that holds our large and diverse nation together. The assumption and fear that looking at the Constitution in a new light could affect the stability of the union was a legacy that was inherited along with the words of the document. So, at the time of
Plessy
, the predominant interpretive strategy was originalism. However, the contributions of Blacks to the nation were undeniable. The truth that there was a vast disparity in equality between blacks and whites was a glaring injustice. The Supreme Court’s actions in
Brown
were opposite of its actions in the
Dred Scott
case. Justice Taney had rationalized that Dred Scott was not a citizen because citizenship for Blacks was, in his view, clearly never an intention of the Framers. As time moved forward the Justices in
Plessy
acknowledged Blacks’ rights to full citizenship and to equality but, at the same time, advanced the idea of a separate status for blacks. The equality principle of the
Declaration of Independence
and the liberty promised in the Constitution were still denied to blacks. The Justices had to take into account the changing values, economics, and social conditions. “The Supreme Court must be able to recognize when the demands of justice, or fundamental fairness, not merely to an individual litigant, but for the whole social context, demand a new beginning, a break from the rigid framework created by the past” (Bourguignon 324). Putting morality in the foreground of the decision making process was a new approach in cases concerning race. The decision in
Brown
that segregation was inherently unequal and, therefore, unconstitutional, ended a long stretch of submission to an antiquated set of ideals and legitimized interpretation of the Constitution on the basis of morality and social context. The justices in
Brown
were manipulating the social conscience of the nation. “
Brown
did not merely resolve a dispute; it regulated the future of those who were not parties in the adjudication” (Wellington 132). Suddenly, everyone had a stake in the case.
So what does
Brown
mean for my students today? They still sit in a classroom devoid of White faces. Did
Brown
fail? Was it a social engineering project spawned by the Supreme Court that was tragically flawed? Did the decision force behavior instead, like Jonathan Edwards, change individual hearts? Can or should the Supreme Court put forth moral imperatives? Are the Justices acting with the “consent of the people?” Was the decision in
Brown
a noble attempt to force change? What was the aftermath of
Brown
? As students come to learn that
Brown
was a catalyst of the Civil Rights movement, which advanced the condition of Blacks in America, it is my hope that they understand the intent of the
Brown
Justices. These Justices knew they could not change the world, but they had a desire to achieve, more nearly, that perfect union whose ideas of equality and liberty were conferred on, yet had not been granted to, every citizen.
