Paul Craig Roberts on Brown



I used to think quite higly of Paul Craig Roberts, some years back. I blogged some months back about his bizarre claims comparing slavery to the tax system in modern America. Roberts has now written a pretty strange piece about why Brown v. Board of Education (1954) was a bad thing.



Now, there are parts of Roberts' new essay that are certainly true--that some prominent black leaders now recognize that the focus on desegregation--rather than quality schools--may have been a mistake. I blogged a few days ago about how not only Thomas Sowell, but also Derrick Bell now have this concern--and that W.E.B. DuBois eventually shared this view in his later years.



Other parts of Roberts' essay, though, just leave me disturbed and perplexed:

Brown still matters to the left, Garrow writes, because the power the Court seized in its Brown ruling can be used to mandate homosexual marriage. The Massachusetts court has taken the lead, and on May 17 homosexuals will be able to obtain state marriage licenses. This, Garrow writes, is a fitting tribute to Brown’s constitutional vision on its 50th anniversary.



Whether one looks with favor or disfavor on homosexual marriage, Garrow is correct. Brown gave the judiciary the power to impose its morality on society, regardless of legislation or societal values.

I strongly disagree. The road to the Goodrich decision doesn't pass through Brown (which was based on a clear question of whether separate schools violated equal protection), but through Griswold v. Connecticut (1965)--a case that, as I have previously pointed out, was based on armwaving, rather than history.



Neither Brown nor Griswold was the beginning of this judicial tyranny, however. You can make as strong of a case that Lochner v. New York (1905) did this as well. It also struck down a state law based on a rather questionable interpretation of the Fourteenth Amendment. At least Brown has the advantage that the Fourteenth Amendment was clearly intended to deal with state laws that discriminated based on race. (I recognize that there is some legitimate reason to believe that Congress did not intend to strike down segregation of public schools.) If Congress intended the Fourteenth Amendment to enshrine laissez-faire into our Constitution, as Lochner seems to think, I haven't seen the evidence for this.



UPDATE: Apparently Roberts has responded to Volokh at some length, of which the most amazing claim is: "As everyone knows, Brown was not a 14th Amendment decision."



What? The decision is right here, and it is very clear:

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, [347 U.S. 483, 488] 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.

Even the headnotes--at the first beginning--are clear on this:

Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment - even though the physical facilities and other "tangible" factors of white and Negro schools may be equal. Pp. 486-496.