Guess who spoke these words:
I believe no one can read the history of our country without realizing that the Good Book and the spirit of the Saviour have from the beginning been our guiding geniuses. … Whether we look to the first Charter of Virginia … or to the Charter of New England … or to the Charter of Massachusetts Bay … or to the Fundamental Orders of Connecticut … the same objective is present: a Christian land governed by Christian principles. …
I believe the entire Bill of Rights came into being because of the knowledge our forefathers had of the Bible and their belief in it: freedom of belief, of expression, of assembly, of petition, the dignity of the individual, the sanctity of the home, equal justice under law, and the reservation of powers to the people. …
I like to believe we are living today in the spirit of the Christian religion. I like also to believe that as long as we do so, no great harm can come to our country.
No, it wasn’t Billy Graham. It wasn’t Ronald Reagan, either. It wasn’t Billy Sunday, Father Coughlin, or Fulton Sheen. It wasn’t Jerry Falwell or anybody associated with the dreaded Religious Right.
It was Earl Warren, chief justice of the United States. His pious sentiments were expressed in 1954 at the annual prayer breakfast of the International Council for Christian Leadership in Washington, D.C. Those in attendance included President Dwight D. Eisenhower, Vice President Richard Nixon, several members of Congress, and many other high officials and civic leaders. One after another, they read from scripture, decried “the frightening evil of Communism,” and vowed a renewed commitment to God.
Just three months later, Warren announced the Supreme Court’s unanimous decision, in Brown v. Board of Education of Topeka, Kansas, that “separate but equal” in public education was no longer the law of the land. And it may well be that Warren’s speech in Washington, not his reasoning in Brown, holds the key to why he decided the case as he did—and, even more so, how he succeeded in getting all his colleagues and the country at large to go along with such an openly proclaimed piece of judicial activism.
Activism occurs when a judge “decides cases on the basis of his own policy preferences rather than a faithful interpretation of the law, thus abandoning the impartial judicial role and ‘legislating from the bench.’” And no set of justices before Warren was ever so frank in its disregard for a constitutional provision’s original, true, ratified meaning as the Supreme Court was in Brown. Even Chief Justice Roger Taney, in Dred Scott v. Sandford (1857), paid lip service to originalism, while presenting a novel interpretation of the Fifth Amendment’s “due process” clause that set the intention of its framers on its head.
Dred Scott was the court’s first great exercise of judicial activism, and it was a complete disaster. The issue was slavery, and the danger was that a nation dedicated to freedom might not be able to deal with slavery without collapsing into fratricidal violence. When the country’s elected leadership began fumbling this question, the Supreme Court stepped in to “settle” it, once and for all.
Taney posed the question: Can a Negro slave, former slave, or descendant of slaves be an American?
We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
Then our meek, unassuming, deferential jurist got down to business.
The Missouri Compromise was void, Taney wrote, for in making a territory free it worked to deprive slaveowners of their property without “due process of law.”
Due process, the justices had discovered, did not mean what Madison, Hamilton, and the rest thought it meant—that is, that public action against an individual must follow the established procedures of the law. Due process was actually due substance, or as we are now pleased to call it, “substantive due process.” The law in question in Dred Scott struck Taney as so unreasonable that even the most scrupulous enforcement of it “could hardly be dignified with the name of due process of law.” Thus spake the court.
Dred Scott was intended to safeguard “the peace and harmony of the country,” by removing its deadliest political problem from political contention. Its effect was to accelerate the trend toward violence over slavery. When John Brown returned from “bleeding Kansas” with a plan for slave insurrection, stymied abolitionists bankrolled him; and when he was hanged, they beatified him. That drove the South to frenzy. A straight line can be drawn from Dred Scott through Harper’s Ferry to Fort Sumter. No other avoidable event bears such responsibility for the onset of civil war.
Brown v. Board of Education doesn’t have the same bad odor that emanated from Dred Scott or even from Plessy v. Ferguson, the 1896 decision setting forth the concept of “separate but equal” which Brown overturned. Yet Brown was bolder in its activism than either of them. In Brown, Warren didn’t bother going through an elaborate pretense of consulting the Constitution’s original meaning, as Taney had done. He didn’t try, as Plessy had done, to reconcile the 14th Amendment’s promise of “equal protection of the laws” with the grossly discriminatory practices of those who brought that amendment into being. He simply dismissed the amendment’s original meaning from the outset.
Warren passed quickly over the historical record on whether the 14th Amendment’s framers and ratifiers intended that it require schools be racially integrated. The record, he asserted, was “inconclusive.” As for the question of equality, he acknowledged that “the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other ‘tangible’ factors,” But he saw that as beside the point. “We must look instead,” he wrote, “to the effect of segregation itself on public education.”
In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.
The trouble is that the ambiguity Warren professed to find in the historical record doesn’t exist at all.
In Government by Judiciary: The Transformation of the Fourteenth Amendment, Raoul Berger maintains that the Brown decision was “simple justice,” as historian Richard Kluger called it. But Berger demonstrates beyond dispute that such justice is not what the framers and ratifiers of the 14th Amendment had in mind. At the time the amendment was adopted, eight northern states provided for segregated schools either statewide or as a local option, and five northern states excluded colored children from their public schools altogether. School segregation was the rule in the District of Columbia, over which Congress had direct authority. The legislative history of the 14th Amendment and of the related Civil Rights Act of 1866 shows clearly that Congress had no intention of disturbing such arrangements. (See Berger here in the chapters on segregated schools and Brown v. Board of Education. Better yet, read his whole book. It’s right there, for free, online.)
Why was northern segregation left undisturbed? Because when northerners said, “No slavery,” what they really meant was, “No blacks.” As President Lincoln himself put it in a wartime meeting with a group of free black leaders, “There is an unwillingness on the part of our people, harsh as it may be, for you free colored people to remain with us.” As Ohio’s anti-slavery U.S. Senator John Sherman (brother of General William Tecumseh Sherman) put it to his colleagues in 1867, “We do not like Negroes. We do not conceal our dislike.” As the Radical Republican Congressman George W. Julian of Indiana told the House in 1866, “We hate the Negro.” Berger notes that such statements reflected “widespread opinion.”
Warren had to choose, therefore, between the racist sentiments that prevailed at the time of the 14th Amendment’s adoption and ratification, and “the spirit of the Christian religion” that he liked to believe had come to prevail among his countrymen in 1954. He chose the latter.
In a jurist, that choice was revolutionary and extremely problematic. But in a politician, it is exemplary, and not at all out of line with the times. Only four years before, President Harry Truman (who as commander-in-chief of the armed forces had ordered the integration of the U.S. military) based both his foreign policy (anti-Communism) and his domestic policy (civil rights) on the religious spirit Warren spoke of. In a 1950 speech at Gonzaga University, Truman spelled it out:
Men can build a good society, if they follow the will of the Lord. Our great Nation was founded on this faith. Our Constitution, and all our finest traditions, rest on a moral basis. We believe in the dignity and the rights of each individual. We believe that no person—and no group of people—has an inherent right to rule over any other person or any other group. … We are continuing to move forward every day toward greater freedom and equal opportunity for all citizens. This is a purpose each of us must strive to achieve, in his daily life, and in his own community. It is a purpose which, in some cases, requires collective action, through our elected representatives in local, State, and Federal governments. . . .
Nations can live together peacefully, working for their common welfare, just as we do in this country. If they believe in the brotherhood of man, under God, millions and millions of people, all over the world, know in their hearts we can live together. . . . The greatest obstacle to peace is a modern tyranny led by a small group who have abandoned their faith in God. These tyrants have forsaken ethical and moral beliefs. They believe that only force makes right. They are aggressively seeking to expand the area of their domination. Our effort to resist and overcome this tyranny is essentially a moral effort.
Those of us who believe in God, and who are fortunate enough to live under conditions where we can practice our faith, cannot be content to live for ourselves alone, in selfish isolation. We must work constantly to wipe out injustice and inequality, and to create a world order consistent with the faith that governs us.
One of the last examples of [great] oratory in America occurred before I had even come to this country. But I have heard many accounts of it from journalists who were there. During the election campaign of 1960, John Kennedy sent Lyndon Johnson into the South. Johnson was to meet the South’s angry criticisms of the Democratic Party’s platform on civil rights. . . . From small town to small town across the South, he went, on a whistle-stop tour on a train called “The Yellow Rose of Texas,” facing the sullen crowds of rednecks—“mah people,” as he later put it to me. And head-on he spoke to them, as Stewart Alsop once characterized it, “with the tongues of angels.” How would you feel, he demanded of them, if your child was sick, and you could not take him to the hospital in this town, but had to go twenty miles away? How would you feel if you were shopping and your child was thirsty, and you could not give him a cold soda at the counter in the drugstore? And again and again, he won the sullen audiences.
The Golden Rule, you see, predates the Constitution, and outranks it. From Southern rednecks to Boston Brahmins, Americans understood that. And that is why Warren was never impeached for usurpation, and why originalism was reduced by Brown v. Board of Education from a bedrock principle of the American Founders to a minority view, even a disreputable one among most constitutional scholars today.
That mustn’t be the last word, however. When he donned judicial robes, Earl Warren ceased being a politician and, in theory, accepted a much more limited role. His action in Brown is impossible to square with the understanding of the limits on judicial power expressed by Madison, Marshall, Washington, and others in America’s pantheon. And the Supreme Court’s course of action after Brown gives grim confirmation of Washington’s warning:
Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.
We’ll see in a future essay just how grim that confirmation has been, and what we may yet do to mitigate the “permanent evil” resulting therefrom.