Passing bull 73 –Bull about legality and Brexit

It is hard to understand the shock about the ruling of the English High Court, and even harder to understand the outrage.  Populism is one thing; outlawry is another.  I had thought that the English had settled these issues in the seventeenth century.  When Charles I sought to rule as the Crown without Parliament, there was a civil war, and Charles lost his head.  When James II sought to rule without Parliament, there was a foreign invasion and James II lost his crown – he went quietly because he knew full well what the English had done to his father.  The learning as I understand it is that ‘sovereignty’, the word that was so abused on this issue, lies in the Crown in Parliament, and not out of it.  What led Mr Johnson and Mr Farage to think that this fundamental premise had changed?  Or was this just another detail that these politicians overlooked?

As I have remarked elsewhere:

Not long after the end of World War II, a newish judge gave a series of lectures called ‘Freedom under the Law’.  Here is a sample of the style and caste of thought for which Lord Denning would be become famous in the common law world.  Having dealt with Hitler, the English now had to deal with Stalin.

‘Concede, if you wish, that, as an ideology, communism has much to be said for it: nevertheless, the danger in a totalitarian system is that those in control of the State will, sooner or later, come to identify their own interests, or the interests of their own party, with those of the State: and when that happens the freedom of the individual has to give way to the interests of the persons in power.  We have had all that out time and again in our long history: and we know the answer.  It is that the executive government must never be allowed more power than is absolutely necessary.  They must always be made subject to the law; and there must be judges in the land who are ‘no respecters of persons and stand between the subject and any encroachment on his liberty by the executive.’  We taught the kings that from Runnymede to the scaffold at Whitehall [the execution of Charles I]: and we have not had any serious trouble about it since.’

That last sentence is pure gold.  Lord Denning had put on a uniform in the First World War; one of his brothers had fought at Jutland leaving Denning angry for the rest of his life that the Navy had not gone in harder; he had very old fashioned and old time views on punishment, both capital and corporal; but he was a very kind, proper, and polite Anglican gentleman, and one of Her Majesty’s greatest judges; and he had no hesitation at all in saying that we  – and we know who we are – had pacified the kings of England– most recently on a scaffold, with an axe.  There is a hardiness in the English that lesser people have fatally ignored.

I gather that all eleven judges of the Supreme Court will sit on the appeal.  It may be helpful if they can give a simple joint judgment that lay people can follow.  There is a precedent for that.  Those who are interested can go to the Postscript and read a note from elsewhere that contains the whole of the judgment in Brown v School Board of Education.  Desegregation in the South in the 50’s makes this little English case look like a walk in the park.  I warrant that it is well worth reading.

Poet of the Month: Lee Cataldi

Spring 1971

I cross the sunlit square

and pay

sixpence for an imported


the trees are bare

nothing disturbs the soil’s


but summer’s trumpets in

the sky

harmony of spaces

is music silent harmony of faces


as you walk before me

you compose

more than the eloquent

colours of your clothes

weary of fights

I lean about the square the wind

accommodates the sun the grass

is putting itself to rights

it seems wrong

to ask you to repair

the damage of other nights

would you do it for a song?


The Rule of Law and Racism

The rule of law says that no one person is above the law and that all people are equal before the law.  What commenced with Magna Carta in 1215 was in substance completed by the Declaration of Rights in 1689.  After 1776, the latter became adopted in the United States as amendments to the U S Constitution known as the Bill of Rights.

The Declaration of Independence proclaimed that ‘all men are created equal.’  People living in the West now see notions of equality as fundamental not just to freedom and democracy, but to civilisation as such, but the statement that we have just quoted was a lie when it was uttered in the United States in 1776.  It was a lie that would be purged and the nation redeemed at Gettysburg and elsewhere, but it continued to fester well into the twentieth century, and it continues until now.

The principal provisions of the Bill of Rights embodying the Rule of Law are the Fifth and Fourteenth Amendments.  Those provisions deal with issues of procedure called ‘due process’ (a term that was first applied in medieval adoptions of Magna Carta), but they also deal with issues of substance.

The Fifth Amendment relevantly provides:

No person shall be held to answer for a…crime, unless on a presentment or indictment of a Grand Jury,…. nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It is obvious that this clause derives directly from a body of law that started with clause 39 of Magna Carta which said that ‘no free man shall be taken…or in any way ruined….except by the lawful judgment of his peers or by the law of the land.’  More than seven centuries after the armed and unwashed barons extracted this guarantee from that weedy princeling called King John, it would be invoked in a vital move to establish the equality before the law of the American negro in the United States.

The Fourteenth Amendment was passed much later to provide that the states as well as the federal government were bound to afford the same protection to citizens as the Fifth Amendment.  It concluded:

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Founding Fathers ducked the issue of racism.  In today’s terms, we would say that they just kicked the can down the road.  But the Justices of the United States Supreme Court had also got their hands dirty.  In Plessy v. Ferguson, decided in 1896, that court held that under the Fourteenth Amendment, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities are separate.  ‘Separate but equal’ was the phrase.  As in 1776, high law and good intentions about equality failed before the colour bar.

In the growing civil rights movement in the 1950’s, this shabby relic of the nineteenth century would obviously have to come under attack.  As it happened, the issue that led to the demise of the ‘separate but equal’ doctrine in the Supreme Court in litigation related to segregation in schools.  In southern states, there was one school for white children and one for black children.

The resolution of the issue is truly remarkable on a number of counts.  Under the very broad terms of the Bill of Rights, the Supreme Court inevitably gets to rule on issues that are highly politically charged – such as abortion, gun laws, and segregation.  Is this right for unelected judges?  Are racist conflicts capable of being dealt with by the law?  Should a court just follow public opinion, at a respectful distance, or might there be cases where judges might actually try to lead public opinion?  In an issue as explosive as segregation in the South, would a body of nine aging white men be able to give a judgment which would be understandable by ordinary citizens and convey sufficient moral and logical weight to stifle any reflex toward another rebellion in the south against a wilfully interfering federal government?

All this came up in Brown v Board of Education that was decided in 1954Like most law that arises out of a decision of judges or juries, this one was the product of many accidents of history.  Had not one Chief Justice of the Court succumbed to death when he did, our story may have been very different.  As it was, that death seemed so timely to another justice of the Court that he was moved to say that this was the first positive evidence that he had seen of the existence of God.

In 1951, a class action suit was filed against the Board of Education of the City of Kansas.  The plaintiffs were thirteen Topeka parents on behalf of their twenty children.  The suit called for the school district to reverse its policy of racial segregation in schools.  Separate elementary schools were operated by the relevant board under an 1879 Kansas law.  That law permitted, but it did not demand, districts to maintain separate elementary school facilities for black and white students.

The plaintiffs had been selected by the Topeka NAACP (National Association for the Advancement of Colored People).  The first-named plaintiff, Oliver L. Brown, was a parent.  He was a welder in the shops of the Santa Fe Railroad, an assistant pastor at his local church, and an African American.

In spring 1953, the Court heard argument in the case, but it was unable to decide the issue.  Justices Black and Douglas were well known liberals.  They were joined on this issue by Justices Burton and Minton.  Chief Justice Vinson noted that Congress had not issued desegregation legislation.  Justices Reed and Clark were inclined to leave things alone.  Justices Frankfurter and Jackson (who had prosecuted at Nuremberg) were dead against segregation, but they were both worried about judges departing from precedent to suit themselves.  They were also concerned about how any decision might be enforced.

After Chief Justice Vinson died in September 1953, President Eisenhower appointed Earl Warren as Chief Justice.  Warren was from California, and he was seen by many as a juristic lightweight.  He was a man of liberal disposition, and he had favored integration in the past.  But above all, he had the supreme grace of a politically gifted person – he was able through his personal presence and charm to bring people together.  Perhaps never has a politically gifted person used that skill to better effect on a superior court.  That court was and is a body of great power, but it is not often composed of people who may be expected just tamely to toe the line.

In its reconstituted condition, the Supreme Court asked for the case to be reheard in the fall of 1953, with special attention to whether the Fourteenth Amendment’s Equal Protection Clause prohibited the operation of separate public schools for whites and blacks.  The case was reargued at the instigation of Justice Frankfurter, who used reargument to allow the Court to try to gather a unanimous consensus around an opinion that would outlaw segregation.  It was the death of Vinson that had led Frankfurter to say that this was the first serious evidence he had seen of the existence of God – was the Southern way of life to be ended by a Jewish atheist and a gaggle of other Godless liberals?

The course of argument the second time around was very heavily charged, explosively so.  The leading counsel for the South was the formidable John W Davis, a former solicitor general of the United States.  He said that education was a matter for the states, and that segregation was hallowed by long usage – what lawyers might call immemorial custom giving rise to precedent.  ‘To every principle there comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued that it passes the limits of judicial discretion and disturbance.’  The attorney for the Commonwealth of Virginia addressed on a different plane.  ‘We recognize that there are a great many people of the highest character and position who disapprove of segregation as a matter of principle or of ethics.  We think that most of them really do not know the conditions, particularly in the South, that brought about that situation.’  You don’t have to live with them – we do.

The leader of the NAACP team was Thurgood Marshall, who would become the first black Justice on the Court.  Mr Marshall was not inclined to step over eggshells or to speak in some kind of code.  He wanted to get to the point – and he did.  As it happens, that is what appellate advocacy, indeed any advocacy in court, is about.  He said that these laws were ‘Black Codes’ that the Court could only sustain if it found that ‘for some reason Negroes are inferior to all other human beings’.

I got the feeling on hearing the discussion yesterday that when you put a white child in a school with a whole lot of colored children, the child would fall apart or something.  Everybody knows that it is not true.

Those kids in Virginia and South Carolina – and I have seen them do it – they play in the streets together, they play on their farms together, they go down the road together, they separate to go to school, they come out of school and play ball together.  They have to be separated in school.

There is some magic to it.  You can have them voting together, you can have them not restricted because of law in the houses they live in.  You can have them going to the same state university and the same college, but if they go to elementary and high school, the world will fall apart.

There is, as there should be, a vast amount of scholarly literature on the coming and going, toing and froing between the judges while they wrestled with the issues – and with each other.  While all but one judge was against segregation, those who had a conservative view about the place of the judiciary questioned whether the court should go as far as the welder from the Santa Fe railroad wanted them to go.  But the clerk of Justice Jackson told him that ‘if you are going to reach the decision you do, you should not write it as if you were ashamed to reach it.’

Chief JusticeWarren convened a meeting of the justices.  He made something of a speech to the effect that the only reason to sustain segregation was a belief that negroes were inferior.  That had been Thurgood Marshall’s point.  Warren said that the Court had to overrule Plessy to maintain its place as a bulwark of liberty, and that it should do so unanimously to avoid resistance in the South.   That, too, was the point.

Here, then, was a matter of great moment for the Court, and the nation – or what Abraham Lincoln would have called the Union.  A mistake either way could have been awful.

Painstakingly, and over a period of five months, Warren kept going until he had all eight of the other justices behind him.  The final decision was unanimous.  Warren drafted the basic opinion and kept circulating and revising it until he had an opinion that was endorsed by all of the members of the Court.

Earl Warren wanted the judgment of the court to be short and to be easily readable by the general public.  He wanted the language to be ‘non-rhetorical, unemotional, and above-all non-accusatory.’  It is a great shame that this lesson is not given more respect to now by courts who fill phone books with uncomely collages of ephemera of vastly less weight.  Warren wanted and obtained a judgment short enough to be run by the newspapers of the nation in its entirety.  Many of them did just that.

Here then is the whole judgment (without the footnotes.)

BROWN v BOARD OF EDUCATION                                                                                      

  1. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware.  They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.

In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis.  In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race.  This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment.  In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called ‘separate but equal’ doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537.  Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities are separate.  In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not ‘equal’ and cannot be made ‘equal,’ and that hence they are deprived of the equal protection of the laws.  Because of the obvious importance of the question presented, the Court took jurisdiction.  Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.

Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868.  It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then-existing practices in racial segregation, and the views of proponents and opponents of the Amendment.  This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced.  At best, they are inconclusive.  The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among ‘all persons born or naturalized in the United States.’  Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.  What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment’s history with respect to segregated schools is the status of public education at that time.  In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold.  Education of white children was largely in the hands of private groups.  Education of Negroes was almost nonexistent, and practically all of the race were illiterate.  In fact, any education of Negroes was forbidden by law in some states.  Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences, as well as in the business and professional world.  It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates.  Even in the North, the conditions of public education did not approximate those existing today.  The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states, and compulsory school attendance was virtually unknown.  As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race.  The doctrine of ‘separate but equal’ did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation.  American courts have since labored with the doctrine for over half a century.  In this Court, there have been six cases involving the ‘separate but equal’ doctrine in the field of public education.  In Cumming v. County Board of Education, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the validity of the doctrine itself was not challenged.  In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications.  Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel v. Oklahoma, 332 U.S. 631; Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637.  In none of these cases was it necessary to reexamine the doctrine to grant relief to the Negro plaintiff.  And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

In the instant cases, that question is directly presented.  Here, unlike Sweatt v. Painter, there are findings below 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.  Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases.  We must look instead 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.

Today, education is perhaps the most important function of state and local governments.  Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society.  It is required in the performance of our most basic public responsibilities, even service in the armed forces.  It is the very foundation of good citizenship.  Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.  In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.  Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?  We believe that it does.

In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on ‘those qualities which are incapable of objective measurement but which make for greatness in a law school.’  In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ‘. . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.’  Such considerations apply with added force to children in grade and high schools.  To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.  The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:  Segregation of white and colored children in public schools has a detrimental effect upon the colored children.  The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group.  A sense of inferiority affects the motivation of a child to learn.  Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.  Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.  Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place.  Separate educational facilities are inherently unequal.  Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.  This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity.  On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question — the constitutionality of segregation in public education.  We have now announced that such segregation is a denial of the equal protection of the laws.  In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term.  The Attorney General of the United States is again invited to participate.  The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.

It is so ordered.

When the Chief Justice announced that the decision of the Court was unanimous, ‘a wave of emotion swept the room.’  Doubtless there were many moist eyes in court that morning.  You will recall that one of the counsel retained on behalf of the victorious plaintiffs was a white lawyer called Charlie Black – who had attended a dance in Austin Texas 1931 to listen to a black band perform with Louis Armstrong.

How was the decision to be implemented?  Within an hour, the Voice of America beamed news of the decision around the world in thirty languages.  The NAACP pushed for full integration in the shortest time.  The South was just as dug in.  It is sobering to read that sixty years ago, counsel for the Commonwealth of Virginia asked the Supreme Court to ‘face reality’ and offered to lead evidence to prove the inferiority of blacks.  The State of Florida told the court that only one in seven police officers would enforce the law.  That would be called mutiny elsewhere.  There was this exchange between the Chief Justice and counsel for South Carolina.

‘But you are not willing to say that there would be an honest attempt to conform.’

‘Let us get the word ‘honest’ out of there.’

‘No, leave it in.’

‘No, because I have to tell you that right now we would not conform; we would not send our white children to the Negro schools.’

At times, there is not much separating mutiny, rebellion, revolt, and civil war.  The South put up a proposal described by the scholar who wrote the leading treatise on the case in terms that ‘the most ungainly camel in Islam would have had an easier time passing through the eye of a needle than a black child getting into a white school in Florida.’

The court gave complex orders that desegregation proceed ‘with all deliberate speed’, a phrase that has been traced back to the old English Chancery.  It took a very long time.  Any kind of speed was out of the question.  Instead of integrating its public schools in 1961, Prince Edward County in Virginia closed them, and sent whites to schools funded in part by donations in lieu of tax, while the blacks were left in one-room shacks.  You would get a similar reaction in those countries following the English model if you sought to abolish private schools – which make their own curious contribution to the continuance of caste.

But desegregation of schools did proceed, and this decision was a mighty blow against the scourge of caste in the West.  The judgment stands as a memorial to the courage and integrity of the judges who made it.  As one federal judge later said, the decision in Brown ‘was humane, among the most humane moments in all our history.’

The simple dignity and clarity of the judgment of the Supreme Court of the United States in Brown v Board of Education takes the breath away from lawyers who live in times that are altogether more mediocre and less exalted.

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