Brown v. Board of Education and the crisis of the written constitution
Judge Jule W. Felton's essay "An Appeal to Save Our Written Constitutional Form of Government
Shorty after the Supreme Court ruled against state-mandated segregation in Brown v. Board of Education in 1954, Jule W. Felton, the Chief Judge of the Court of Appeals of Georgia, wrote an essay titled “An Appeal to Save Our Written Constitutional Form of Government.”
Felton’s essay gives us insight into how southern segregationists used constitutional originalism to perpetuate unjust social arrangements in the Jim Crow South. Writing about the Supreme Court’s role interpreting the U.S. Constitution, Felton argued that:
The law of the land as to provisions of the Constitution, the meaning of which is uncertain, is in effect the initial decision of the Supreme Court ascertaining and defining the original intent of the framers and adopters because it becomes in each instance in effect a part of the defined words of the Constitution… the Supreme Court has no right to reverse an initial decision ascertaining intent and extracting a constitutional principle.
Judge Felton’s view of constitutional law can be summed up this way: once the Supreme Court makes a constitutional interpretation, we must live with that particular interpretation until the document itself is amended—regardless of what might change in our society, how much we broaden our understanding of the world, or how much more inclusive our interpretations of justice and rightness become. In other words, unless we go through the burdensome process of amending the actual document, we’re stuck with antiquated thinking—thinking, I might add, that has usually worked to advantage a narrowly defined segment of the population (e.g., the white aristocracy).
By overturning the separate but equal clause established by Plessy v. Ferguson in 1896, Felton believed the Supreme Court had overstepped its bounds. The only way, according to Felton, to re-interpret the constitution was through amendment: all other actions would be a violation of law.
Here’s how he put it:
The Constitution is a contract between the several sovereign States and the Federal Government. That contract provides that the States surrender certain attributes of sovereignty to the Federal Government. The rest are reserved to the States. One provision of the contract is that the contract cannot be amended except as provided in the (contract) Constitution. The Federal Government has been violating the contract since 1937. Up to 1954 we acquiesced in the unconstitutional actions. We do not acquiesce in the 1954 decision or in any subsequent ones. By our acquiescence in the decisions prior to 1954 we are not estopped to call a halt now and that is just what we do. We want the contract complied with.
For folks like Judge Felton, the inclusiveness of school integration was a bridge too far. Once the explicit white supremacists structures of the Jim Crow South came under direct attack by grassroots activists in the 1950s, southern segregationists turned to constitutional originalism to maintain their unjust society. After all, our constitution’s words weren’t as inclusive in the 1790s when the ink dried on the parchment paper as they were aiming to be in the 1950s when the civil rights movement challenged our notion of who should be included in the American community.
Brown v. Board of Education was an interpretative response to the people’s call for inclusiveness and change. And the Warren Court’s decision to strike down Plessy v. Ferguson with Brown in 1954 was an illustration of a different interpretation of constitutional law than the one held by the likes of Judge Felton. Brown was the result of a view that the constitution is a living document that should be argued and reargued as society changes and as we continue to figure out what it means to be American.
Carolina Fredrickson, a senior fellow at the Brennan Center for Justice, refers to this approach to constitutional law as one of participatory action. Writing in the Washington Monthly, she argued:
The delegates in Philadelphia were not its only framers; the Constitution has been shaped by the millions of Americans who have voted for, organized for, and at times literally fought for change.
We, the people, can shape the constitution. But we also need judges and justices who carve out a place for us in their interpretation of constitutional law. As Fredrickson made clear in her article:
Past judges have understood the Constitution’s malleability, and future ones may as well. As Justice Thurgood Marshall once said, “We the People no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality,’ and who strived to better them.” The “miracle” of what came out of Philedelphia, he continued, “was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making.”
Some of the constitutional changes we’ve forged over the course of our history were through actual amendments such as the Thirteenth—which abolished slavery— and the Nineteenth—which gave women the right to vote. But other changes were enacted through a reinterpretation of how we the people have made sense of the words that make up our constitution—such as was the case in Brown v. Board of Education.
Can separate really be equal? In 1896, the Fuller Court said yes. But in 1954, the Warren Court said no—not because the words on the paper had changed but because we had changed; and, in that particular case, we had changed for the better.
More to come soon…
Primary Sources
Felton, Julie W. “An Appeal to Save Our Written Constitutional Form of Government.” Alabama Lawyer 21, no. 4 (October, 1960): 390-398.
Secondary Sources
Fredrickson, Caroline. “A Constitution of Our Own Making.” Washington Monthly (August 29, 2021).