Charles Hamilton Houston is the legal genius and absolute giant of the current USA constitutional order whom you are least likely to know — unless you’re Black. And even then, maybe not unless you’re a lawyer.
Born in the late 19th century, Howard lived about eight and a half months of his life before Plessy v. Fergusson declared “separate but equal” Jim Crow laws constitutionally sound. He would die before that changed, but he was the first one to see that change, the shape of it, the mechanism of it, the inevitability of it.
He became an attorney and co-founded the Washington Bar Association (an affiliate of the still-new National Bar Association) when the American Bar would not admit Black lawyers. Recruited to Howard University, he became the Vice Dean of the school, as well as Dean of its law school. With so few law schools open to Black students at the time, his bios describe him as directly teaching or mentoring up to one quarter of American Black law students during his Howard years.
In addition to his teaching, however, he was an activist. His particular genius was in seeing the judiciary as made up of flawed human beings and playing to human judges while arguing the law.
When he set out to overturn the doctrine of separate but equal, he knew he could not mount a frontal attack. Rather he predicated his arguments on Plessy; its own internal flaws would eventually bring it down, and Houston was content to portray himself as non-threatening while they did. Rather than argue overtly that Plessy must be struck — at least in early cases — Houston argued instead that Plessy was good law that must be actively applied. While that seems a contrary thing for a Black lawyer to argue, he knew differently.
Initial use of Plessy was as a club wielded by whites against Black equality. But Houston saw how this use focussed on separateness to the exclusion of equality. As a result, he set up the case of Missouri ex rel Gaines v. Canada. In this case he took the state of Missouri to task for having a segregated, whites-only law school and… no law school at all for Black students. While one might trust whites to rationalize terrible facilities given to Black students as all they deserve, it was impossible to (honestly) argue that nothing was equal to something.
Houston, then, backed white racist judges into a corner. They had always valued Plessyfor its ability to keep Black folk separate, but they valued themselves as an honest intellectual elite. Indeed, this was part of what made whites better to the racist mind. To discard the promise of equality in Plessy would be to accuse themselves of never having been honest about the nature of the case and its precedent in the first place. In order to preserve the honour that, they believed, made them better than Black Americans, they were goaded into following their own law. Missouri could not enforce “separate” without also enforcing “equal”. In order to cling to the sense of superiority which justified white racism, Houston forced judges to hand him the tools with which he and his protégés (notably Thurgood Marshall) would dismantle its legal enforcement.
I would enjoy writing a longer essay about Houston and the line of cases leading up to Brown v. Board of Education (Topeka, Kansas), et. al. but this is not that post. Instead, I want to set up ex rel Gaines as a comparison to Rikki Held, et. al. v State of Montana. This latter case was a suit brought by a number of Montana children seeking to enforce the Montana constitution’s environment clause, which reads like so:
Art 9, s 1:
(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
(2) The legislature shall provide for the administration and enforcement of this duty.
(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.
Emphasis mine.
In our modern times, conservative jurists absolutely love to blither and blather about their textualism and their fealty to principles. Conservatives are loyal to the clear text of state and federal constitutions, even when this is inconvenient for their policies, they insist. It is the activist left who would ignore plain language in favour of outcome, they would like you to believe.
Unfortunately for the left, this isn’t true, but in the federal constitution there is a great deal of silence on issues of import to liberals. While we can and should deride the mendacious conservatives of SCOTUS for inventing new doctrines contrary to their beloved originalism and shoehorning them into any silent crevice in constitutional law, the Montana environment clause is, like Plessy, extraordinarily and uncomfortably clear. For the conservatives to maintain the myth of honour they sell themselves in the mirror each morning, they must occasionally pay a small price. The outcome in Held is one of the largest such payments, but it was mandated by their narcissistic, self-laudatory conception of their own goodness.
If they were able to see where this all will lead, the trial court judge might have ruled otherwise. Indeed the appellate courts in Montana still might. But as Houston forced the judiciary to agree in ex rel Gaines that for “separate” to have teeth, “equal” must also have teeth or else white judges had always been dishonest, counsel for Held, et. al. forces conservative judges to agree that text as clear as Montana’s environment clause must have teeth or textualism — and more importantly, textualists — have no honour and have never been honest.
Just as in ex rel Gaines, the victory here is minimal. Houston won a promise that Missouri would eventually set up a separate law school for Black and indigenous law students, Held and her co-plaintiffs have won only the modest victory Montana may no longer ban environmental impact statements’ discussion of climate change and the roles of molecules such as carbon dioxide, methane, and hydrocarbon chains.
But while the instant victory is minimal, the precedent is vastly important. Houston forced white judges to grant power to the promise of equality. Held’s lawyers are forcing conservative — not to say white again — judges to grant power to the promise of “a clean and healthful environment”.
In the 1930s any knowledgeable observer could predict that Jim Crow must eventually fall before its own most powerful precedent because the entire point of separateness was the promise to whites that they would be treated better than Black persons. Separate but equal was a lie the whole time, but it required the cooperation of a hostile judiciary to expose. Houston’s genius was taking white racists at their word and forcing them to choose what was more important, Jim Crow, or their own heroic self-conceptions. Ex rel Gaines was the lever which he used to separate the Jim Crow laws from their white defender’s egos.
It would be easy to focus on the limits of yesterday’s victory in Held, but by forcing Montana’s courts to recognize that the environment clause is as much text, and therefore as enforceable as any other element of the state constitution, Nikki Held’s lawyers have created the lever with which the conservative attachment to fossil fuels can be pried apart from their devotion to textualism and the self-aggrandizing ego kick it provides.
There are important differences here, of course. The largest is that this is a state decision, and most states do not have a similar guarantee. There is also reason for concern if we intended to rely only on the courts. After all, from Gaines to Brown took 16 years. Surely some of us will not live another 16 years; Houston himself never saw Brown, having lived only 12 more years after Gaines.
But for me, I see great promise in this approach. And if nothing else, it provides an important opportunity to talk about one of my favourite lawyers and how he showed that the secret humanity of judges we tend to mythologize as objective can work in the favour of a clever advocate.