The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston

Abstract

The principal accomplishment of John Marshall's Supreme Court, according to George Lee Haskins and Herbert A. Johnson, was to subject politics to the discipline of law.1 In the system Marshall helped mold, ordinary politics may lie behind the adoption of constitutional provisions, but once placed in the Constitution, the provisions take on a meaning independent of politics. The rhetoric of discourse is transformed as arguments over principles replace arguments over interests.2 An alternative view of politics and constitutional law remains available even as we acknowledge Marshall's achievement. In the alternative view, constitutional provisions are verbal formulations that could gain substantial agreement while fundamental questions of principle remained unresolved. Politics is the craft of accommodating principled disagreements within a broader framework of agreement, and of developing acceptable compromises on issues when interests conflict. In the alternative view, politics is always present in constitutional law. Both principles and interests shape its formulations and reformulations. Constitutional law is especially political, in that sense, when the principled disagreements reflect deep divisions within the society. In United States history questions arising from the issue of race have regularly involved precisely that sort of principled disagreement. The constitutional law of racial equality has therefore been as political as any area of law could be. Constitutional law results from the litigation of contested cases. The process of