Harlan did not accede to Brown’s myopic vision of “reasonableness”: there was nothing “good” about the “order” maintained by such laws, and the “comfort” they secured was certainly not universal. In Harlan’s more communal vision, there were two perspectives worth considering—black and white: “The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.”
There was, Harlan conceded, a social order in America. But it was not a natural one, and it was not one that the Constitution could tolerate:
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.
Harlan’s analysis reached its climax with an assertion that was oxymoronic except as a statement of protest, as a refusal to permit constitutional aspirations to yield to the reality of inequality: “The humblest,” Harlan insisted, “is the peer of the most powerful.”
Harlan concluded his opinion by pointing out the lingering contradiction of American life:
We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens,—our equals before the law. The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.
Plessy v. Ferguson made clear that, after civil war and reconstruction, there had been, fundamentally, no change. The natural order that slavery had converted into a racial one remained very much intact; Reconstruction’s guarantee of equality under law had not changed the order because, quite simply, it could not. And the premises of that order were now firmly established. “Race” was biological. Racism was natural. The constitutional guarantee of equality was merely formal. Real inequality was inevitable. The Constitution was powerless to change the natural order. These would remain the official views till the middle of the twentieth century.
The Second Reconstruction
Living Truths
The stories of the massive grassroots civil rights movement of the mid-twentieth century and of the NAACP’s concurrent legal struggles have been told masterfully elsewhere. The aim here is to briefly examine the radical revision of the official epistemology of inequality that took place in that time period, a revolution in thought inherent in the Supreme Court’s decision in Brown v. Board of Education.25
Two cases presaged Brown and perhaps made that decision inevitable: the 1948 case of Shelley v. Kraemer and the 1950 case Sweatt v. Painter.
Shelley v. Kraemer. Racial segregation was still very much the norm in America after the Second World War. Educational segregation was somewhat more pronounced in the South, where it was mandated by law, but residential segregation was pervasive throughout the country. The NAACP targeted both: it sought a declaration that racial segregation, in schools and in housing, violated the equal protection guarantee of the Fourteenth Amendment.
The problem with residential segregation was that it appeared to be completely beyond the reach of the Fourteenth Amendment. There was some public housing in post-war America, but most housing was privately owned and most residential segregation was, accordingly, the result of private discrimination. After Justice Bradley’s opinion in the 1883 Civil Rights Cases, such discrimination did not even implicate the Fourteenth Amendment: only through “state action”—through discrimination by public officials, not private individuals—could Americans be deprived of the “equal protection of the laws.”
The discrimination in Shelley v. Kraemer was, under Bradley’s artificial dichotomy, apparently “private”: individual homeowners had agreed that they would not sell to “non-Caucasians,” and had memorialized their agreements in restrictive covenants in their deeds. But the Supreme Court, in an opinion written by Chief Justice Fred Vinson, ruled that those covenants had been effectuated only through the actions of state judicial officials, and judicial enforcement of the covenants—without which the restrictions would be meaningless—was “state action” for purposes of the Fourteenth Amendment. It was, on the one hand, merely common sense: of course judges are public officers, and of course their actions are state actions. But it exposed, on the other hand, the deep conceptual problems with Bradley’s public-private dichotomy: no action or decision, and certainly no agreement, is purely private, since all are shaped by and implicitly conditioned on the existence, or absence, of legal sanctions. Or, as Bradley himself had put it, the law “is over, under, in and around, every action, that takes place.”
But there was another problem in Shelley: the state courts were not discriminating; they would enforce all restrictive covenants. The argument was in part that it was the private parties, not the courts, who harbored the racial animus. That did not matter, Vinson insisted, because “the effect” of state action was the denial of constitutional rights.
The argument was also in part the argument of symmetry that had prevailed in Plessy v. Ferguson: there was no legal inequality when the state merely makes a distinction, but otherwise treats all parties, black and white, the same. The state courts, the argument went, would enforce all racially restrictive covenants, separately but equally. But Chief Justice Vinson refused to be lured into the conundrum. There was, first of all, no real evidence that restrictive covenants were being enforced against white home buyers. Moreover, symmetrical application would not cure the constitutional defect: “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.” This last was conceptually unsatisfying and rhetorically oxymoronic: it is difficult to find discrimination in indiscriminate behavior. Still, at an intuitive level, Vinson had come closer to the truth: there was something quite unequal going on here, and the state was clearly complicit.26
Sweatt v. Painter. Two years later, the Court struck another blow against the formalist conception of equality. Hemann Sweatt had been denied admission to the University of Texas Law School because of his race; under the separate but equal rule, Texas offered to start a new law school for Sweatt and other black Texans. By the time the case of Sweatt v. Painter found its way to the Supreme Court, the new “black” school was in fact open and operating.
But it was not enough. “We cannot find,” Vinson again wrote for the Court, “substantial equality in the educational opportunities afforded white and Negro law students by the State.” The Court examined both “tangible and intangible factors” to reach its conclusion: resources and facilities on the one hand; reputation and “practical” opportunities on the other. It was precisely the sort of realistic inquiry foreclosed by Plessy’s formalism, and it was certain to expose the “thin disguise” of most separate but equal schemes.27
Brown v. Board of Education (Brown I). Four years later, of course, the Supreme Court found in Brown v. Board of Education that “separate but equal” public education was not in fact “equal” at all. The assault on formalism implicit in Shelley and Sweatt nearly demanded this result: Shelley had suggested that racial distinctions were, somehow, unequal, even when they were applied across the board, while Sweatt had demonstrated how this inequality could be manifest in both tangible and intangible ways. Brown, in a sense, simply filled in the blanks. And yet, for at least two reasons, the