The Smart Culture. Robert L. Hayman Jr.

order” was on shaky grounds in 1950s America: its “science” had been discredited by the revolution in the social sciences, on the one hand, and advances in genetics and the “hard” sciences, on the other, and its politics had been rendered increasingly untenable, first, by a devastating Depression, and then, by the horrors of the Holocaust. The Supreme Court’s decision in Brown demonstrated that the law would no longer embrace the order’s central premise: racial inferiority was a product not of nature, but of state action. Races were not created unequal, they were re-created that way by discrimination.

      So the argument, of necessity, was modified: it was not so much that the Constitution cannot secure equality, but rather, the new claim went, that the Constitution simply does not secure equality because of the enduring principles that inhere in it. The Constitution might in theory have contained a leveling principle, but it in fact does not: the fundamental precepts of our Constitution—states’ rights, local authority, private freedom, individual liberty—reflect a very different set of choices. Brown, the argument went, was wrong not because it attempted to do the impossible, but because it attempted to do the forbidden: in the name of equality, it violated not the natural order, but our constitutional one. Plessy v. Ferguson was the law; Brown violated it.

      But what the argument assumed was a Constitution with a fixed meaning. It assumed that the document embodied an uncontested set of principles; that those principles would yield just one answer to constitutional questions; that this one right answer could be determined; and that the answer was absolute and constant. It assumed away the compromises that produced the document, both originally and in its reconstruction; it assumed away the ambiguities—some conscious, some not—that inhere in the grand terms of the text; it assumed away the indeterminacy that attends the interpretive process, an indeterminacy that is heightened with the level of abstraction; and it assumed away the unavoidable influences of context—of individual perspective and historical setting. And it assumed, as a consequence, that yesterday’s tradition would be tomorrow’s norm: as the governor of Alabama would put it, “segregation today, segregation tomorrow, segregation forever.”

      For the Supreme Court, what was at stake was nothing less than its institutional authority: its ability—its power—to declare what the law is. On this score, the Court had to be unequivocal. In an opinion separately signed by all nine justices—the first and only such opinion in Supreme Court history—the Court emphatically declared that “the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’”

      The rest followed easily, but was important all the same. The school board argued that the delay was necessitated not by its misconduct, but by private actions: private threats, private violence, private unrest, private uncertainty. But, the Court responded, those conditions were directly traceable to official actions. Eroding still further Bradley’s dichotomy, the Court ruled that private behaviors brought about by public action were within the reach of the Fourteenth Amendment. The board also argued that it had acted in good faith, a not untenable claim; regardless, the Court responded, the rights of the schoolchildren to attend desegregated schools could not be frustrated by state action, “whether attempted ingeniously or ingenuously.’” Nothing less than compliance with the constitutional mandate would satisfy the Court: “Our constitutional ideal of equal justice under law is thus made a living truth.”³⁰

      Loving v. Virginia. A decade later, the Court finally completed the dismantling of Jim Crow. Virginia’s antimiscegenation statute prohibited interracial marriages involving its white citizens; a minor exception permitted white Virginians to marry persons with some “Indian blood,” a tribute to the descendants of Pocahontas. The statute was part of a 1924 law entitled An Act to Preserve Racial Integrity, but it was clear that Virginia was interested in preserving the “integrity” of just one race.

      The law was hardly an anomaly. In 1952, thirty-one states prohibited interracial marriages; fifteen years later, Virginia was one of sixteen states that still prohibited “miscegenation.” These were not anachronisms: Hollywood’s Motion Picture Code banned portrayals of interracial marriages until 1956, and it was not until late 1967 that Sydney Pokier interrupted Spencer Tracy’s quiet evening in Guess Who’s Coming to Dinner