They Are All Up In Your Constitution, Winning Your Rights

Careful reader of this blog may remember that I consider the greatest legal genius in history to be Charles Hamilton Houston. If you don’t know who he is, well, read a book because a blog post alone won’t do it. Okay, fine. I’ll give you a bit to get started.

This is the one person more responsible than any for Brown v Board of Education (Topeka, Kansas) and the success of legal efforts to end segregation everywhere in the US. This is the one person who had not merely the legal success to argue and win that case before SCOTUS (he didn’t, as he had recently died: that was his little-known protege, Thurgood Marshall), but rather the nearly incomprehensible foresight necessary to plan literally decades ahead.

He fought and won a long series of cases that eroded, cracked, and undermined separate but equal before it could be shattered by Brown v. Board II (if you didn’t know that there were two Brown v Board hearings before SCOTUS, you have still more reading to do). He forced states to provide legal education to Black and indigenous people in order to abide by their own, racist “separate but equal” doctrine. State universities had been providing legal education to whites for a hundred years, he noted, without allowing equal opportunities for Black residents of those states to get a legal education. So state-run Black law schools were opened, and Black folk and tribal members were the first to benefit. Houston then recruited many of those graduates to help him win the next series of cases, to get better funding and more scholarships allocated for those schools and their students. And while this was good, part of what he was doing was educating white lawyers and judges. As his cases rolled through the courts, many law review articles were written. The more words whites spent arguing against Black law schools, the less tenable their discrimination (and their pretensions to supremacy) became. So after Oklahoma Board of Regents, after Missouri ex rel Gaines, and after a couple decades for the states to get their acts together, he brought the hammer down on law school segregation in Sweatt v. Painter. Marshall argued this case in early 1950, but the strategy was Houston’s. I’m sure Houston was proud of the work Marshall had done (Marshall was, after all, completely brilliant and also highly skilled in the tactics of legal argumentation) but he died of a heart attack during the scant weeks between Marshall’s oral argument before the court and the court’s unanimous decision that the separate, segregated law schools of Texas were not, and could never be, equal.

From there it was a short leap to determining that segregated grade schools could never be equal, but part of Houston’s genius was that he saw that status-conscious white lawyers who reached the Supreme Court after attending Harvard or Yale would be only too aware of the fact that the reputation of one’s law school on its own provided value to its graduates. The same person with the same knowledge graduating from Harvard will find more opportunities than graduating from Howard. Houston and Marshall made this part of the strategy before SCOTUS, making much of the fact that a separate “law school for negroes” (that had been assigned buildings and books, but never quite opened) would never provide the benefits with the degrees it conferred that would be provided with the degrees conferred by the University of Texas Law School. Getting lawyers to admit the differences in law schools held constitutional significance was always going to be easier than getting lawyers to admit the differences in primary schools were constitutionally significant. Yet once the white lawyers were forced to examine the arguments before them, the reasoning in the first case compelled the outcome in the latter.

Charles Hamilton Houston was, by all accounts, a relatively privileged person in the United States in the first half of the 20th century, and this is shown not merely in the profession of his father (a lawyer after having been a slave), his early educational opportunities (he studied at a college-prep oriented high school), or the positions he held (educated as he was, Houston was able to join the army with an officer’s commission, later he became dean of a law school), but also by the strategies he embraced. Planning a multi-decade assault on Jim Crow required a patience that other positions in society simply do not allow. But let’s not forget that if there is privilege in coming from a middle class family and a good education, the racism of the time was both omnipresent and vicious. Of his time in the Army, he wrote:

The hate and scorn showered on us Negro officers by our fellow Americans convinced me that there was no sense in my dying for a world ruled by them. I made up my mind that if I got through this war I would study law and use my time fighting for men who could not strike back.

So this leads me to an announcement that might be of interest to as many as both of my readers: for the next week, and then sporadically throughout the rest of June, I’m going to be writing about the people who did not have the luxury of waiting for justice, but who instead forced the courts forward, and through the courts society as a whole. Who are the people who are all up in our constitutions, winning our rights? Some, like Houston and Marshall, are educated, relatively privileged, and brim with fiery outrage at the pressure of a single form of oppression that they feel all the more acutely because at all other points they have reason to be comfortable. Others have every disadvantage we can imagine someone possessing while still retaining some minimal ability to articulate an argument on behalf of justice. What binds them together is the lack of an obvious choice.

We often speak of them as heroes, but they often experience themselves as having no options but acting as they do. A large part of the difference, to my mind, is that few (if any) see the stakes as clearly as a Houston. When I first fought against domestic violence activism’s restrictive visions of gender, safety, and danger, I didn’t know that I would be among the first critics to articulate a view that twenty five years later would be held by the majority. In fact, my earliest articulations were fraught with errors and unresolved questions. It took several years of answering the same questions again and again, each time a little more confidently, a little more skillfully, a little more knowledgeably and a little more helpfully, before I began to be able to look beyond the questions of the day to anticipate the questions of the next year and the next decade. Those first few years, I was arguing to survive with little thought that what I said might have any value beyond a small circle of activists in Portland, Oregon. I never had (and never will have) the impact of a Houston or a Marshall, but I like to think that my presence in those early conversations, my awareness of my own constrained self, gives me some bit of insight into the lives and circumstances of some of these activists, some of these plaintiffs, some of these cases that can help to bridge the gap between lionizing someone because we know the magnitude of the outcome and empathizing with someone because we know the experience of the process.

In the end, I hope we will all better appreciate how ordinary the extraordinary can be.




  1. Pierce R. Butler says

    … the people who did not have the luxury of waiting for justice, but who instead forced the courts forward…

    Power concedes nothing without a demand. It never did and it never will. — Frederick Douglass

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