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The Unconstitutionality of Brown v. Board of Education
by La Shawn Barber
11 May 2004

Judge-made law, no matter how beneficial to certain Americans, threatens the freedom of all Americans.

On May 17, 1954, the pestilence known as Jim Crow was declared illegal. In the landmark case, Oliver L. Brown et.al. v. the Board of Education of Topeka (KS) et.al, the U.S. Supreme Court ended state-sanctioned segregation. Monday, May 17, marks the 50th anniversary of the groundbreaking case.

Praised by liberals and conservatives alike, Brown was and is still hailed as a great decision. The case overturned Plessy v. Ferguson (1896) and ruled the doctrine of "separate but equal," designed to keep blacks away from whites, inherently unequal. Although its outcome may have been just, Brown was decided unconstitutionally.

As a black person steeped in the history of Brown and the subsequent Civil Rights movement, I know it's tantamount to heresy to make such an assertion. But given our current renegade Supreme Court's apparent disregard for "the will of the people," heretic is a label I'll gladly wear.

The Supreme Court was created by the U.S. Constitution and the Judiciary Act of 1789. In 1803, a seminal case called Marbury v. Madison established the doctrine of judicial review to determine the constitutionality of federal and state legislation and executive actions, and the pre-eminence of the Constitution as the supreme law of the land.

Despite its role as interpreter of law, the judiciary has improperly made law, leaving a paper trail of rulings arrived at by circumventing the very document it is sworn to uphold, including Plessy (by finding a basis for race discrimination in the Constitution), Roe v. Wade (by finding a right to privacy to kill unborn babies), Grutter v. Bollinger (by finding a basis for race discrimination in the Constitution), and Lawrence et. al. v. Texas, (by usurping the will of the Texas legislature and striking down a sodomy statute).

The Court did the same in Brown. The main issue in the case was whether the segregation of children in public schools solely on the basis of race deprived black children of equal educational opportunities. Instead of simply examining the original intent and purpose of the law and deciding whether state segregation statutes violated that law, Chief Justice Earl Warren based the Court's decision on the shifting political and social climate of the times and his personal views.

Post-Civil War legislation was designed to remove the color line and declare all citizens equal before the law, but the Court in Plessy v. Ferguson, which held that race distinctions were permissible, disregarded the plain language of the 13th, 14th and 15th Amendments. The unconstitutionality of Plessy is obvious but less so with Brown. By properly interpreting the 14th Amendment, however, the Court in both Plessy and Brown could have arrived at legally sound decisions.

That separate public schools were inherently unequal should not have been the ruling. Justice Warren could have argued that since public education is a government function intended to benefit the public, the Constitution does not permit the government to withhold the civil rights of freedom and citizenship, especially on the basis of race. Prohibiting blacks from attending certain schools interfered with their 14th Amendment right to equal protection of the law. It's a different matter altogether if blacks chose to remain separate from whites. Government-sanctioned separation is unconstitutional, not separation per se.

For reasons difficult to determine, the Court chose not to base their ruling on these grounds, but on an analysis of "public education in light of the full development and its present place in American life…" and flawed sociological studies (black children choosing white dolls over black ones).

It can be argued that Brown was morally right even if unconstitutional, but we all know what happens when a handful of unelected judges, influenced by their political leanings, decide cases based on their notions of morality (race preferences, abortion).

The Supreme Court's function is to determine the constitutionality of laws, not to solve social problems -- real or imagined -- that don't violate the Constitution, such as upholding racial discrimination because liberals think there should be more blacks in elite universities. Instead of celebrating the 50th anniversary of Brown v. The Board of Education, we should be remembering that judge-made law, no matter how beneficial to certain Americans, threatens the freedom of all Americans.

La Shawn Barber, a columnist for American Daily, reviews books for Townhall.com. Visit her weblog at http://lashawnbarber.blogspot.com.

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