Washington and Lee Law Review Volume 52 | Issue 1 Article 2 Winter 1-1-1995 The hC anging Meaning of Equality in Twentieth- Century Constitutional Law William E. Nelson Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Civil Rights and Discrimination Commons Recommended Citation William E. Nelson, The Changing Meaning of Equality in Twentieth-Century Constitutional Law, 52 Wash. & Lee L. Rev. 3 (1995), https://scholarlycommons.law.wlu.edu/wlulr/vol52/iss1/2 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. The Changing Meaning of Equality in Twentieth-Century Constitutional Law William E. Nelson* Table of Contents I. Introduction .................................. 4 II. Equality as the Protection of Ethnic and Cultural Minorities ... 7 A. European Minorities in the Aftermath of World War I ... 7 B. The Attainment of Political Power by American Immigrant Groups ........................... 8 C. The Persistence of Ethnic and Cultural Discrimination . 10 1. The Free Speech Cases ..................... 11 2. Police Searches and Brutality ................. 17 D. The 1938 Convention and the Emergence of a New Conception of Equality ................... 19 E. Egalitarian Propaganda During World War II ........ 26 III. Gradual Assimilation: The Initial Mechanism for Ending Inequality ................................... 28 A. Early Judicial Resistance to the Recognition of Rights ... 29 B. Providing Space for Minority Institutions ........... 39 C. Assimilation as Quid Pro Quo for Equality .......... 53 * Joel and Anne Ehrenkranz Professor of Law, New York University. A.B., Hamilton College, 1962; LL.B., New York University, 1965; Ph.D., Harvard University, 1971. The author is indebted to all of the members of the Legal History and Constitutional Theory Colloquia at New York University, but especially to Louis C. Anthes, Ronald Dworkin, Christopher Eisgruber, Martin S. Flaherty, Hendrik Hartog, and Lawrence G. Sager for their comments and criticisms. Paul Berman and Norman Williams, both members of the J.D. Class of 1995 at New York University, volunteered invaluable editorial assistance. Research support was provided by the Filomen D'Agostino and Max E. Greenberg Faculty Research Fund of New York University School of Law. 52 WASH. & LEE L. REV. 3 (1995) IV. Brown v. Board of Education and the Emergence of Multicultural Equality ........................... 68 A. The Brown Case and the Origins of Rights Jurisprudence ............................. 68 B. Anger and Protest as New Forms of Equality ........ 76 C. Gender Equality: Paradigmatic Constitutional Symbol for the 1970s ........................ 89 V. Conclusion: Rights as the Foundation for Social Justice ..... 99 I. Introduction Equality has been the central issue of American constitutional law in the twentieth century, and Brown v. Board of Education' has been the central case. The emphasis that constitutional scholars have given to Brown has resulted, however, in their losing sight of a richer and fuller portrait of equality. This Article seeks to recover the portrait that we have lost. My approach in the Article will be to examine in detail an extensive body of twentieth-century New York case law concerning equality issues. These New York cases constitute a central part of the equality story, especially for the decades prior to Brown. These New York cases establish that Brown did not mark the beginning of modern equality law, but only a shift in its direction, albeit a very important shift. The Article is divided into three main analytical parts. Part I considers the emergence in the late 1930s of today's conception of equality. Until then, people conceptualized equality in class-centered and geographically- oriented terms. In American history, for example, concern about inequality arising from class distinctions can be traced back to the political thought of early Federalists, who often worried that wealthy property holders would be victimized in the political process by masses of the poor.2 Class-centered equality analysis also appeared at the heart of the debates over the abolition of slavery, in which opponents of slavery typically focused on the need to eliminate an underclass of slaves without seeing any corresponding need to end the racism and racial prejudice in which anti-slavery advocates 1. 347 U.S. 483 (1954). 2. See STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 103 (1993); GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 403-13 (1969). CHANGING MEANING OFEQUALITY themselves participated.3 Another large body of nineteenth and early twentieth-century equality doctrine, reflected in numerous Supreme Court opimons,4 concerned discrimination by one state against another or against residents of the other. In contrast, by the end of the 1930s, equality jurisprudence had begun to focus on what remains the paradigmatic concern of egalitarians today- how to address and remedy problems that arise when a culturally or ethnically distinctive minority finds itself disadvantaged in its relationship to mainstream social groups and turns to law to remedy the disadvantage. Part I of this Article will trace how cultural and ethnic discrimination emerged as the central issue influencing the development of equality jurisprudence during the 1920s and the 1930s. Then the Article will turn to the starkly different approaches toward ending such discrimnation adopted by New York courts during the next four decades. Part II will focus on the first of these approaches, while Part H will focus on the second. Part II will show that, at first, equality was seen as an eventual goal toward which society as a whole should strive without the judiciary playing any special or Immediate role in its attainment. Until approximately 1960, New York judges believed that their primary mandate was to enable the legislature to take steps that would enhance the well-being of subordinated groups. Under special circumstances, some judges would exceed this mandate in order to interpret state constitutional and legislative provisions m a fashion that would give subordinated classes weapons against municipal- ities or other entities seeking to maintain their subordination. Or, they would manipulate legal rules to give victims of prejudice and discrimination weapons that they could use m their efforts to enter the mainstream of New York's political, economic, and social life. These same judges, however, consistently refused to hold that subordinated individuals possessed a constitutionally derived right to equality that the courts would enforce. Even more significantly, judges prior to the 1960s did not believe that an equal 3. See RAoUL BERGER, GOvERNmENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 10-16, 90-91 (1977); HARRY V JAFFA, CRISIS OF THE HOUSE DIVIDED: AN INTERPRETATION OF THE ISSUES INTHE LINCOLN-DOUGLAS DEBATES 377-86 (1959); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 71-80, 96-104 (1988). 4. See Baldwin v Seelig, 294 U.S. 511 (1935); Public Util. Comm'n v Attleboro Steam & Elec. Co., 273 U.S. 83 (1927); Allgeyer v Louisiana, 165 U.S. 578 (1897); Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1868); Bank of Augusta v Earle, 38 U.S. (13 Pet.) 519 (1839). Another leading case decided by a Supreme Court Justice on circuit was Corfield v Coryell, 6 F Cas. 546 (C.C.E.D. Pa. 1823) (No. 3,230). 52 WASH. & LEE L. REV 3 (1995) society required people with different cultural values to interact on an equal basis; equality required only that subordinated groups be given the opportunity to shed their existing identities and to assume the identity of their oppressors. Equality, in short, meant the gradual assimilation of diverse groups into a pre-existing cultural mainstream. Following the decision in Brown, understandings of equality began to change in ways that Part M will elaborate. After 1960, equality was transformed into a judicially protected, formal legal right. Litigation for the purpose of obtaining a judicial order protecting a legal right to equality became commonplace. Assimilation, m turn, came to be viewed as a problematic vision of equality Although some people continued to adhere to that vision even after 1960, an alternative approach, which is best described as multicultural, arose. This new multicultural approach cherished racial, religious, ethmc, gender, and other distinctions and proposed to organize society along group lines m a manner that allowed each group to achieve an equal share of wealth and power. In connection with this new approach to equality, subordinated groups began presenting their demands for equality more forcefully During the decades m the middle of the twentieth century, when equality meant assimilation, those wanting to assimilate typically made polite requests for admission into the mainstream. But later, when multiculturalism came into vogue, people making egalitarian demands frequently presented them in a manner that appeared offensive and occasionally even threatemng to dominant groups. As I elaborate on these developments in the pages below, this Article will, I believe, offer a paradigm for thinking about twentieth-century constitutional