Segregation and the Original Understanding: A Reply to Professor Maltz

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In Originalism and the Desegregation Decisions,(1) I relied heavily on the prior work of Professors Earl Maltz and John Harrison, two of the most careful, dispassionate, and learned scholars of the constitutional doctrine of the Fourteenth Amendment. Now they have written responses to that article. Interestingly, Maltz devotes his essay to questioning whether public education was considered a privilege or immunity of citizenship--a point on which Harrison, without elaboration, says I am "correct"(2)--while Harrison devotes his essay to a textual and doctrinal analysis of how segregation could be considered unequal, a point that Maltz passes by in silence. I will devote my response to Maltz, since he, unlike Harrison, ultimately rejects my thesis that the original understanding of the Fourteenth Amendment supports the holding in Brown.

Maltz contends that the Fourteenth Amendment compels the states to fund black and white schools equally and may empower Congress to prohibit segregation, but does not forbid segregation of its own force. Is Maltz's analysis of the evidence consistent with this interpretation of the Amendment?

Let us begin with the enforcement power. Maltz hypothesizes that some members of Congress may have voted for the schools provision in the civil rights bill, even though they did not believe that de jure school segregation violates Section One of the Amendment, because they understood the congressional power to enforce the Amendment under Section Five to go beyond the dictates of Section One. Maltz argues that this would make sense of Senator Sherman's confused speech in which he appeared to concede the constitutionality of segregated schools, while voting for a bill outlawing school segregation and against amendments that would have allowed separate but equal schools.(3)

The difficulty with this hypothesis is that neither Sherman nor any other supporter of the bill referred to any supposed difference between the substantive requirements of Section One and the discretionary power of Congress under Section Five when defending the constitutionality of the bill. Maltz cites speeches by Robert Hale(4) and William Lawrence(5) giving broad interpretations of the Section Five power. But Hale, who proudly identified himself as the sole Republican representative to have voted against the Fourteenth Amendment, offered his interpretation of Section Five as a criticism of the Amendment,(6) not as a justification for supporting the school segregation bill (which, indeed, he voted against(7)). Nor is Lawrence (who, unlike Hale, was a leading supporter of the bill) an example. It is true that Lawrence offered a fairly expansive interpretation of Section Five, but he also explained in some detail why the school desegregation bill was required by Section One. He concluded: "The fourteenth amendment was designed to secure this equality of rights; and we have no discretion to say that we will not enforce its provisions. There is no question of discretion involved except as to the means we may employ. The real question is, whether, knowing our duty, we will perform it."(8) Many other Republican supporters of the bill similarly argued that the bill merely provided enforcement for rights under Section One, and that Congress had no power to go beyond this.(9) Even Professor Michael Klarman, a critic of the originalist argument for desegregation, finds the evidence "persuasive" that "congressional support for school desegregation should be understood not merely as a policy preference, but also as probative of constitutional interpretation--that is, most congressmen at the time would have understood the congressional enforcement power under Section Five of the Fourteenth Amendment as limited in scope to the rights protected against state interference by Section One."(10)

Thus, while it is logically possible that the bill could have been justified on the theory that Congress had power to go beyond the requirements of Section One, there is no direct evidence in support of this interpretation, and a great deal of evidence to the contrary. …