[Congressional Record Volume 150, Number 67 (Thursday, May 13, 2004)]
[Senate]
[Pages S5452-S5453]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           50-YEAR ANNIVERSARY OF BROWN v. BOARD OF EDUCATION

  Mr. SPECTER. Madam President, I have sought recognition to comment on 
two subjects this afternoon. First, this is the 50-year anniversary of 
the historic decision in Brown v. Board of Education where the Supreme 
Court of the United States ruled that separate but equal education 
facilities violated the U.S. Constitution and ordered the integration 
of schools in the United States.
  That is historic because for the first time it gave real meaning to 
equality and the equal protection of the law clause of the 14th 
amendment.
  Prior to Brown v. Board of Education, segregation had been the rule 
of the day. The 14th amendment, incorporating the equal protection 
clause and due process of law, was enacted in 1868. At that time, the 
galleries of the Senate were segregated, and the manager of the 14th 
amendment in the House of Representatives, in commenting about what 
equal protection meant, did not mean that the races would share 
accommodations together. Then in the celebrated case of Plessy v. 
Ferguson decided by the Supreme Court of the United States in 1896, an 
8-to-1 decision, the Supreme Court decided that the equal protection 
clause was satisfied if the facilities were equal even though they were 
separate. That remained the law of the land for the next 58 years until 
1954 with Brown v. Board of Education.
  The decisions in this field are the best examples of the vitality of 
the U.S. Constitution and the way the Constitution reflects the 
fundamental values of a society, which have changed in the course of 
time. Justice Cardoza, in the celebrated case of Palko v. Connecticut, 
articulated the changing constitutional doctrine when he talked about 
the fundamental values of our society.
  There are still some who contend that original intent is the only way 
to interpret the U.S. Constitution. In the first place, it is very hard 
to divine what the intent was of the Founding Fathers in 1787 when the 
Constitution was signed, even more difficult to figure out the intent 
of the ratifiers of the U.S. Constitution; and then when there is the 
equal protection clause, there is no doubt that the intent of

[[Page S5453]]

those who spoke to equal protection was not to have integration. When 
the fundamental values of our society changed in the intervening years, 
the Supreme Court of the United States recognized that and interpreted 
the Constitution and equality and equal protection in a very different 
way.
  When I was in the Philadelphia District Attorney's Office, I saw 
firsthand the changing values that led to new and different 
constitutional doctrines. The case of Mapp v. Ohio decided in 1961 
started a cavalcade or an avalanche of Supreme Court decisions which 
changed the constitutional law of defendants' rights.
  In Wolf v. Colorado in 1949, the Supreme Court of the United States 
said that the due process clause of the 14th amendment did not 
incorporate the fourth amendment prohibition against search and 
seizure.
  Back in 1916, in Weeks v. The United States, the Supreme Court ruled 
that evidence obtained by an unreasonable search and seizure could not 
be introduced in a criminal prosecution. But that was not applicable to 
the States until the U.S. Supreme Court broadened what due process 
meant and said the fourth amendment prohibition against unreasonable 
search and seizure was a fundamental value in our society and it 
applied to State prosecutions as well.
  I recall one case that came up in the Philadelphia criminal court not 
long thereafter where the defense advanced the concept of unreasonable 
search and seizure and cited Mapp v. Ohio, and the Philadelphia judge 
said, well, that is a Ohio case, and disregarded the constitutional 
law. He later found out that Ohio cases were binding in Pennsylvania 
when they are decided by the Supreme Court of the United States.
  Mapp v. Ohio was then followed by a case involving a right to 
counsel, and it was decided that there was a constitutional right to 
counsel. Justice Black said that anyone who was hauled into court had a 
right to counsel in a State prosecution.
  Then the Escobedo v. Illinois case in 1964 concluded that a defendant 
was entitled to certain warnings, and Miranda v. Arizona in 1966 
expanded that doctrine.
  In my tenure in the Philadelphia District Attorney's Office I saw 
firsthand on an ongoing basis the prosecutor's job being made more 
complicated, but understandably so, and in the long trail of history, 
decisions which improved the quality of our civilization so that due 
process of law had broader concepts.

  The principal case in the field continues to be Brown v. Board of 
Education, and it is time to reminisce a bit, time to focus. There is 
still a great deal more to be done on equality in our society. If we 
take a look at the statistics of earnings of African Americans versus 
Caucasians--way down. If we take a look at the earning opportunities 
for women, the glass ceiling still prevails. There is decided 
improvement in the Senate. When I was elected, only Senator Nancy 
Kassebaum of Kansas had been in this Chamber as a woman, and Senator 
Paula Hawkins was elected in 1980 as the second woman. Now the number 
is 14 and growing. The Senate is a better place for the additional 
women whom we have. At the top of the list is the distinguished 
Presiding Officer--or near the top of the list, or tied for the top of 
the list; I do not want to get into too many comparisons--the 
distinguished Senator from Alaska, Lisa Murkowski.

                          ____________________