Brown v Board of Education's Original Intent

In his confirmation hearings Chief Justice John Roberts affirmed his support of Brown v. The Board of Education, a decision that has often been misinterpreted by judicial activists. Finally, more than 50 years after the Brown decision, Justice Roberts has revealed in his opinion for the 5-4 majority in Parents Involved v. Seattle School Dist. No. 1 what Brown really meant. "Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin," he wrote of the cruel injustice of white children being told they could not attend the black schools of their choice. In the wake of Brown liberals only compounded this injustice by forcing black children to go to school with white children even if they didn't want to. In the name of equality hardly anyone got to attend the schools of their choice. Although the decision in Parents Involved generated 185 pages of opinions, Roberts has conveniently boiled down the true meaning of Brown in a sentence that could fit on a bumper sticker: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.''

Brown v. The Board of Education overturned Plessy v. Ferguson which upheld the segregation of railroad cards based on the doctrine of "separate but equal." But Brown had the inadvertent effect of replacing this doctrine with an even more unfair policy: "together but unequal." Black children were forced to attend white schools where they couldn't possible compete and white children where forced to attend black schools where they weren't challenged enough. Parents were horrified that their children had become pawns in social experiments that tried to force equality and integration. Many parents responded understandably to forced busing of their children by throwing rocks at buses carrying other people's children.

The Brown decision, perhaps more than any other event in our history, gave rise to the modern conservative movement. In writing about Brown in his book Conscience of a Conservative, Barry Goldwater said, "In effect the Court said that what matters is not the ideas of the men who wrote the Constitution, but the Court's ideas. It was only by engrafting its own ideas on the law of the land that the Court was able to reach the decision it did….I am therefore not impressed that the Supreme Court's decision on school integration is the law of the land" William Buckley's National Review also denounced the decision at the time. And future Chief Justice William Rehnquist wrote a memo in 1952 urging the Court to do the right thing. "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed," wrote Rehnquist, who would stay true to his ideals and make a lot of unpopular and unhumanitarian decisions. If it weren't for Brown, there might be no modern conservative movement.

But like all conservatives Justice Roberts is a great respecter of the principle of stare decisis and did not want to overturn an important precedent like Brown after more than 50 years (although the Warren Court apparently felt no such compunction in overturning Plessy). So instead, he went back to the original intent of the decision, which was that the government should be completely colorblind. If many schools have become resegregated in the half century since Brown, then the government is totally blind to this outcome. As Justice John Paul Stevens noted in his dissent, quoting Anatole France, "The majestic equality of the law, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." Under the Roberts court the government gives black students and white students the same freedom to go to dilapidated segregated schools if they want to.

If parents don't want their children attending segregated schools, then the have the freedom of choice to move to another district, earn enough money to send their kids to private schools or quit their jobs and homeschool their kids. Other parents, on the other hand, may prefer that their children attend segregated schools. "People -- black, white, brown, rich, middle-class, poor, Christian, secular, etc. -- naturally want to be around people like themselves. Why is that such a bad thing?" conservative Rod Dreher recently wrote. He points to a study by Harvard sociologist Robert Putnam that shows that "the more diverse a community is, the less likely its inhabitants are to trust anyone." The recent conservative uprising over immigration legislation was a warning to politicians that conservatives do not want to be forced to listen to salsa music and be subjected to the pungent odors of Mexican cooking in their own neighborhoods, because that will only make them trust their Spanish-speaking neighbors less, especially since they can't understand a word they are saying.

"It is not often in the law that so few have so quickly changed so much," Judge Stephen Breyer said in an angry dissent from the bench. But all Justice Roberts has done is return to the original intent of Brown, changing things back to the status quo. In coming years I think we will see the Court returning to the original intent of a number of decisions. Hopefully, we will return to the original intent of Roe v. Wade, which affirmed that the government does have the right to restrict abortion, the original intent of Griswold v. Connecticut, which granted only married couples the right to privacy and the original intent of Marbury v. Madison, which affirmed that the Supreme Court only has the power to interpret the original intent of the Founding Fathers not make up its own interpretations.

I hope that the Roberts Court will also return the original intent of legislation that has been distorted over the years. It made some strides in this direction in another decision the Court issued yesterday, which stripped away 96 years of misinterpretations of anti-trust laws and returned back to the original intent of the law. If Justice Roberts Court succeeds in his efforts to wrest control of the judiciary away from the radical judicial activists, this country will be returned back to the original vision of the Founding Fathers and the last 200 years or so will just seem like a bad dream.

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