An Alternative Southern Conservative Tradition
The Haygood-Hopkins Memorial Gateway at Emory UniversityStudents at the Oxford College of Emory University can spend their semester living in Haygood Hall. The college website describes the dormitory as the “smallest, most intimate community on campus” and is the closest student residence to the dining hall. It is also named after one of the most emphatic defenders of African American education and civil liberties in Georgia during the years after Reconstruction.
Why is Brown So Important?
Will Baude recently raised the question, why is the result in Brown v. Board of Education so important? He writes:
In the abstract, a legal interpretive theory ought to be able to say “theories generate results; results don’t generate theories.” In other words, it is a mistake to judge an interpretive theory simply by the moral goodness of the results it produces: If one had a theory of moral goodness sufficient to judge all of the results of an interpretive theory, one may as well just use it directly. Law’s promise is the ability to transcend moral disagreement.
And yet in practice almost every constitutional theorist feels the need to say that Brown is right. The two exceptions I can think of are Adrian Vermeule and Earl Maltz, though my very very small sample size suggests that the next generation of law students may not view Brown as similarly canonical.
This is a complicated question, but part of the reason people place so much emphasis on Brown is that they make it more important than it was. They treat the issue of Brown’s constitutionality as identical with the issue of Jim Crow’s unconstitutionality. If denying Brown meant that Jim Crow was constitutional, that is an extremely uncomfortable result. Of course, one might counter (as Will suggests) that the validity of a legal theory differs from the desirability of its results, but in the context of arguing for or against originalism, the view that originalism would allow such an enormous evil as Jim Crow just appears to be extremely problematic.
It is therefore important to note that the issue of the constitutionality of Brown is not the same as the unconstitutionality of Jim Crow. Even if Brown was not the original meaning, that does not mean that most of Jim Crow was constitutional. This is a true for a variety of reasons.
