Sixty-three years ago today, the U.S. Supreme Court struck down racial segregation in the case of Brown v. Board of Education. In doing so, it completely reversed an interpretation of the Equal Protection Clause of the Fourteenth Amendment that had held constitutional sway for more than a half century. In the 1896 case of Plessy v. Ferguson, the Court had ruled that "separate but equal" segregation of the races was consistent with equal protection.
In its Brown decision, the Court not only overruled Plessy as a general interpretive guide to the meaning of the Fourteenth Amendment, but it also ordered every public school district in the country to desegregate "with all deliberate speed:"
[T]he [school desegregation] cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.
Despite this order, school desegregation in many places around the country did not occur with much speed at all - deliberate or otherwise. With lower courts guided only by this vague command, an organized resistance quickly manifested across the South, with governors and other state officials refusing to desegregate, some even going so far as to physically stand in the way of students themselves.
Many school districts resisted for a decade or more before desegregating. One district in Mississippi finally conceded that Brown v. Board of Education is the settled law of the land just this year.
Chief Justice Earl Warren and his colleagues on the Court in 1954 made a critical mistake in Brown. They assumed, or perhaps just hoped, quite naively, that state and local officials around the country would operate in good faith and dutifully adhere to the rule of law as they swore to do when they took their oaths of office.
The federal Constitution is the highest law in the land, and the federal Supreme Court is the final word on what the Constitution means, thus all other courts and jurisdictions must follow its commands. When state and local officials vow, in various forms, to defend and follow the constitution, that's what they're supposed to do.
But what if they don't? What if they refuse?
That's the tricky thing about the rule of law: it only works if people play along. The aftermath of Brown made this abundantly clear, but recent events are driving the point home once again.
What happens when government officials have a duty to enforce the law but decide not to? What happens, say, when an elected official violates the law, but nobody responsible for holding him or her accountable has any interest in doing so?
The rule of law simply ceases to have meaning.
Article 2, Section 4 of the Constitution says that an elected official, such as the President, can be removed from office through a process called impeachment:
The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article 1, Sections 2 and 3, put the process of impeachment in the hands of the House of Representatives and the Senate. The House impeaches, and the Senate tries and convicts (or acquits).
So there is a constitutional method of enforcing the law against elected officials. Those who break the law can be removed from office by both houses of Congress working together, one to impeach and the other to convict.
The problem, of course, is that Congress is a political body, and the presidency is a political office. There are only two viable political parties in American politics, and control of the houses of Congress and the presidency each lies in the hands of only one party at a time. So, like in the past, there are times when Congress is controlled by one party and the presidency controlled by the other. Or, like today, Congress and the presidency are controlled by just one party.
When Congress and the presidency are controlled by one party, the weakness of the impeachment clauses reveals itself. A law-breaking president can only be held accountable by Congress. But if Congress and the president are members of the same party, impeachment only happens if Congress rejects its party loyalty in favor of upholding the law in good faith.
That seems like a pipe dream these days. The controlling party is now unwilling to hold its members accountable for anything. Even such serious crimes as obstruction of justice are committed with no fear of impeachment.
Was this inevitable? And if so, how could the Framers of the Constitution make such an egregious oversight when they drafted Articles 1 and 2?
At the time of the Framing, the tribalism of partisan politics in America had not yet entrenched itself. The Framers did not have the benefit of hindsight that we enjoy. But is it true that the Framers simply could not have foreseen our current political reality where party loyalty so totally trumps the rule of law?
Perhaps that was true for some of them, but not for all. One of the Framers was George Washington, and he, a member of no political party, became the country's first president. In his farewell address of 1796, he saw the writing on the wall, and issued this warning:
All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels and modified by mutual interests.
And now, today, the only effective method to remove law-breakers from the office of the presidency relies entirely on a good faith adherence to the rule of law by partisans who, in the periodic event that they control all of Congress and the Oval Office, may have no political will or even incentive to so adhere.
Like the aftermath of Brown v. Board, our current political reality shows us very clearly that the rule of law depends almost entirely on the good faith of our political leaders. God help us.