“Disability, Civil Rights, and Law:
Jacobus tenBroek, Howard Jay Graham, and the New Politics
of Equality in the Middle Twentieth Century”
Felicia Kornbluh, University of Vermont
Center for the Study of Law and Society
Boalt Hall School of Law
Berkeley, CA
January 30, 2012
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“Without [Howard Jay Graham, Robert L.] Carter recall[ed], ‘we would have felt very
vulnerable’.” -- from Richard Kluger, Simple Justicei
In 1953, when they were asked by the Supreme Court to reargue Brown v. Board of
Education, the attorneys of the NAACP Legal Defense and Educational Fund turned to the
writings of a blind professor from the Speech Department at UC-Berkeley and a deaf librarian.
Thurgood Marshall and his team utilized the work of historians such as John Hope Franklin and
C. Vann Woodward. However, to answer the critical question of the original meaning of the
Fourteenth Amendment—the key question the Court had put to them in its request for reargument—they built most directly upon the scholarship of Jacobus tenBroek and Howard Jay
Graham. These two scholar-activists had been collaborating since the middle 1940s on research
about the origins of the Reconstruction Amendments. They were the first to argue that the
ultimate source of the language in Section One of the Fourteenth Amendment was the
antebellum movement for the abolition of slavery. Therefore, they claimed, segregated
education violated the Fourteenth Amendment’s proscription against states depriving citizens of
“equal protection of the laws.”
Although tenBroek and Graham have barely been remembered, they were among the
most important constitutional thinkers of the twentieth century. They have been forgotten in part
because they were physically disabled. Their disabilities led to their lack of notoriety both
directly and indirectly. Both their disabilities and their ideas, which appear to have been
influenced by their experiences of discrimination, marginalized them within the legal academy
and the midcentury world of academic social science. TenBroek co-authored a now-classic
essay in 1949 that predicted and promoted the central role of the equal protection clause in
postwar movements for social change. He argued, among other things, for a doctrine of
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“substantive equal protection.” At the same time, he founded and led the National Federation of
the Blind (NFB), anchoring its growth into the most effective advocate for disabled people and
public assistance recipients between World War Two and the coalescence of mass movements
for disability and welfare rights in the 1960s and 1970s. He wrote field-defining essays on
disability rights, income-based discrimination, and the right to travel, and was lead author of the
first book-length critique of the Supreme Court and Roosevelt Administration vis-à-vis Japanese
internment.
TenBroek’s collaborator for a decade was Howard Jay Graham. Graham never held a
position in a university. Nonetheless, he served as an in-house constitutional historian for the
NAACP during the summer of 1953 and a consultant in the fall of 1953, and wrote a substantial
portion of the final brief to the Court in Brown. In the second volume of his biography of
Thurgood Marshall, Mark Tushnet demonstrates that Graham’s contribution to the NAACP’s
effort to prepare for the re-argument of Brown was more consequential than C. Vann
Woodward’s.ii In a nice reversal of the traditional understanding of physically disabled adults as
the “vulnerable,” Judge Robert Carter, in the epigraph to this piece, figured Graham not as a
“’vulnerable’” disabled man but as the one upon whom the able-bodied attorneys on Thurgood
Marshall’s staff themselves leaned as they eked out a complex and novel historical argument as
preparation for facing the Court a second time on the question of segregated schools.iii Graham
laid the groundwork for his NAACP work with influential essays he began publishing in the late
1930s. These attacked the so-called “conspiracy theory” of a pro-capitalist, anti-civil rights
Constitution posited by Charles and Mary Beard; defended the New Deal while renovating the
historical reputations of abolitionists and Radical Republicans; and argued for an interpretation
of the constitutional text that made it useful to social-change efforts in post-World War Two
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America.
I focus in this paper on Graham, tenBroek, and the NAACP’s re-argument in Brown. In
so doing, I begin with three historical points: First, that the contribution of Graham, the deaf
librarian on the fringes of the midcentury academy, was a substantial one – to a degree that has
been recognized by scholars of the litigation, such as Tushnet and Richard Kluger, but has not
been incorporated into the general legal-historical or constitutional-law understanding of what
happened when this egregiously canonical case made its second trip to the Supreme Court.
Second, that Graham’s contribution built upon his collaboration with tenBroek, which began in
the middle 1940s, when the two first read An American Dilemma and decided that they would
produce a legally focused companion to Myrdal’s study, initially conceptualized as a series of
articles titled “The American Judiciary and the American Dilemma.”iv And third, that
tenBroek’s work, The Anti-Slavery Origins of the Fourteenth Amendment (1951), was
enormously influential itself in the argument the NAACP crafted as it approached the Court for
the second time on the issue of elementary- and secondary-school segregation.
Beyond the relatively simple, if fascinating, fact that two marginal scholars, one blind
and the other deaf, contributed to modern American constitutionalism, the effort to account for
Graham’s and tenBroek’s contribution directs our attention to the NAACP’s second argument in
Brown v. Board, itself, which it made in the Court’s October Term of 1953. The argument, built
upon Graham’s and tenBroek’s research, included an expansive, historical interpretation of the
equal protection clause. It tied the Fourteenth Amendment’s 20th-century potential to the most
transformative claims of the Abolitionists and Republicans between the 1830s and 1860s. In the
brief the NAACP submitted to the Court, this expansive, historical interpretation displaced
Kenneth and Mamie Clark’s “doll studies,” and theories of what Daryl Scott has termed “the
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damaged black psyche” resulting from segregation.v In answering the questions posed to it by
the Vinson Court after initial argument in Brown, the NAACP argued that the ineffable meaning
of Section One of the Fourteenth Amendment was an abolitionist and therefore antisegregationist one. But Warren’s famous opinion of May, 1954, brushed away as “inconclusive”
the historical documentation the NAACP had offered the Court.vi “In approaching this
problem,” Warren wrote, “we cannot turn the clock back to 1868, when the Amendment was
adopted, or even to 1896,” when the Court ruled in Plessy.vii He rested the Court’s decision upon
the “modern authority” of the social-psychological evidence produced by Kenneth and Mamie
Clark, and others, that “[s]egregation of white and colored children in public schools has a
detrimental effect upon the colored children.”viii
Second, at a somewhat greater remove, an effort to account for Graham’s and tenBroek’s
role in Brown points to several ways in which the constitutional, civil rights, and disability
histories of the twentieth century might be re-engaged. In terms of constitutional history, a
serious consideration of the 1953 NAACP brief in Brown, of Warren’s opinion, and of the work
of Graham and tenBroek invites a re-periodization and renewed understanding of constitutional
transformation. Conventional scholarship treats the major change point in twentieth-century
constitutionalism as the New Deal era—ending with the famous Footnote Four in Justice Stone’s
Carolene Products decision (1938), which suggested several kinds of inequality with which the
Supreme Court might concern itself, including race-based inequality, and from which it was
supposedly a straight line to the jurisprudence of Brown v. Board.ix However, the popular and
doctrinal treatments of the equal protection clause of the Fourteenth Amendment appear to have
been unsettled until at least the unanimous opinion in Brown, itself.x Graham, tenBroek, and the
NAACP circa 1953 invite an understanding of the post-World War Two period, in conjunction
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with the New Deal, as the twentieth-century era during which the U.S. Constitution was most
powerfully rewritten or remade, especially by means of the revivification of the equal protection
clause of the Fourteenth Amendment. One of the ways in which equal protection was made
anew into a bulwark of efforts at social change was by retelling its history: first Graham and
tenBroek, and eventually many others, created a liberal, broadly reformist Fourteenth
Amendment. This was a product of passionate historical imaginations, the possessors of which
rewrote the Constitution to be what they wanted it to be in the middle twentieth century.xi These
historian-reformers did not persuade the Warren Court to reject segregation on the basis of what
I term their “abolitionist originalism.”xii However, they ultimately transformed the
understanding of abolitionism, the Civil War, and Reconstruction among virtually all working
historians and students of constitutional law.xiii
If the period of constitutional change was different than we generally think it was, then
the influences upon this change must also have been different. We may find the roots of this
change in the internationalist and social democratic “human rights” politics of the era after the
warxiv; in the protests and litigation of groups of disabled people, including tenBroek’s National
Federation of the Blind, which preceded the return to the U.S. of disabled soldiers and the
revelations of Nazi atrocities but were furthered by these events; in the legal and socialmovement activism of Japanese-American internees and citizens during and after the war; in the
efforts of women to defend their rights to work within and outside of the courts; in the legal
improvisations of the rising homophile movement; in the belated revulsion within U.S. public
opinion at the treatment of European Jewry by the Nazis and by more or less polite subordination
of Jews throughout the “free” world; and, of course, in the complex, multi-pronged, intellectually
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flexible campaign by the NAACP to inter Jim Crow and defeat the “separate but equal” doctrine
announced in Plessy.
In terms of civil rights, this history upends what I have elsewhere termed the
conventional “meta-narrative” and illuminates relationships between and among civil rights
imaginations and strategies that are generally treated as separate from one another.xv Although
U.S. history textbooks generally claim otherwise, the movement against Jim Crow did not
precede the movement against discrimination on the basis of disabilities—or the movement to
undo legal strictures placed upon Japanese Americans, or efforts to secure women’s access to
employment.xvi To be sure, the movement for African American legal and social rights had a
profound impact on the all aspects of twentieth-century history. It was widely observed and
influential among disabled people, white women, Latinos/as, LGBT people, and others. But
even years before the 1960s, success in the realm of civil rights was not solely the province of
the NAACP or CORE. The influences did not run entirely in one direction. Diverse projects on
behalf of disabled people—including campaigns in the twentieth century for improved treatment
of “retarded” children, expanded rehabilitative programs for returning veteransxvii, educational
reform for deaf students, and improved welfare and employment access for blind adults—
occurred simultaneously with the NAACP’s most ambitious litigation. In his capacity as
president of the NFB, Jacobus tenBroek demanded civil rights without apology before the
NAACP leadership chose at the very start of the 1950s to attack the “separate but equal” doctrine
head-on; in the 1920s, tenBroek’s mentor, Newel Perry, had argued publicly for the integration
of blind students into majority-sighted schools, at least at the post-secondary level.xviii
As Barbara Welke has argued for the nineteenth century, in the twentieth century, too, the
“borders of belonging” and exclusion were similar for African Americans and physically
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disabled people, as well for diverse groups of other people who faced subordination.xix
Categories of alienage, ambivalence about people’s predictable need for government financial
assistance, medicalized theories about their incapacity, and equally medicalized, wage-workcentric plans for rehabilitation run across the public and professional discourses applied to
African Americans, blind people, deaf people, veterans, and others who were identified by their
physical, intellectual, and psychological impairments. In the ways they were segregated for
purposes of education, faced public regulation of their intimate lives, and were barred from
certain obligations of citizenship (such as, in the case of blind adults, jury service), disabled
people faced treatment that may have had as its model the treatment of African Americans and
other racialized minorities. Insofar as African Americans were understood as inherently
intellectually and/or physically distinct from European Americans, were subject to eugenic
discourses or policies, were marginalized on grounds that were largely aesthetic, suspected of
long-lasting “damage” that either justified or (in the case or Warren’s opinion in Brown) resulted
from segregation, and proposed as candidates for interventionist forms of rehabilitation
controlled by professionals from outside of their communities, African Americans may have
been subject to ideologies and policies developed with disability in mind. The history of
interactions among tenBroek, Graham, the NAACP and the Supreme Court opens a window
upon the analytical links among, and historical simultaneity of, diverse forms of subordination,
discrimination, and social-movement organizing.
Disability history and disability studies scholarship have the potential to transform legal
and civil rights history, and to be transformed in turn, by considering the relationships among
them. The tools of disability studies offer new sources of critique for the discourse of the
“damaged black psyche,” as expressed in the unanimous opinion in Brown v. Board and in the
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rhetoric of the War on Poverty, the Moynihan Report on the Black Family, and mountains of
social-scientific research from the middle-to-late twentieth century.xx Disability history also
helps explain the emergence of theories of African American “damage” from the context of the
explosion of disability-based public policy—and its assimilation into the political mainstream
through, for example, the Eisenhower Administration’s endorsement of National Employ the
Handicapped Week, the Social Security Act Amendments of 1954, and the Rehabilitation Act of
1956—after World War Two.xxi On the other hand, the connections among legal, civil rights,
and disability history revealed in Graham’s and tenBroek’s contributions to Brown v. Board link
the social and movement histories of disability in the early-to-middle-twentieth century that have
been offered by scholars such as Douglas Baynton, Paul Longmore and David Goldberger,
Alison Carey and Audra Jennings to elite legal and political history. They join the histories of
people who have been known, and have known themselves, in part by their impairments with the
histories of presumptively able-bodied African Americans, and with the central narrative of
liberal reform in U.S. history.xxii This is one way to move between what literary critic Eve
Kosofsky Sedwick has described, in the context of scholarship on same-sex attraction, from a
“minoritizing” to a “universalizing” analytical approach—that is, between the work of improving
a still spotty account of the history of disabled people and that of demanding reconsideration of
the largest questions in U.S. history and public life.xxiii
Howard Jay Graham, Jacobus tenBroek, and Brown v. Board
The NAACP originally argued Brown v. Board and its companion cases before the
Supreme Court in 1952. With the Justices apparently deadlocked, leaning toward outlawing
educational segregation but divided over the legal rationale for the move and concerned about
the potential response of pro-segregation forces, the Court refused to issue an opinion and
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instead asked for a re-argument and re-briefing of the cases.xxiv The Justices asked the NAACP
counsel to address five questions, the first two of which were:
1. What evidence is there that the Congress which submitted and the State
legislatures and conventions which ratified the Fourteenth Amendment
contemplated or did not contemplate, understood or did not understand, that it
would abolish segregation in public schools?
2. If neither the Congress in submitting nor the States in ratifying the Fourteenth
Amendment understood that compliance with it would require the immediate
abolition of segregation in public schools [as the Justices suspected that they had
not], was it nevertheless the understanding of the framers of the Amendment that
future Congresses might, in the exercise of their power under Sec. 5 of the
Amendment, abolish such segregation, or that it would be within the judicial
power, in light of future conditions, to construe the Amendment as abolishing
such segregation of its own force?xxv
To answer these questions, the NAACP attorneys called upon scholars for help—and
help they could provide quickly, as the oral arguments were originally scheduled for early in the
October Term (they were eventually extended to December in response to a request by the
Justice Department). By mid-July, 1953, Thurgood Marshall was able to report to the NAACP
Board of Directors that his team had found “social scientists and political scientists, as well as
lawyers, who are willing to work through the summer . . . We have been fortunate enough,” he
bragged, “in getting men and women who are absolutely tops in their respective fields to work
with us.”xxvi Those at the “tops in their fields” included C. Vann Woodward, John Hope
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Franklin, and constitutional historian Alfred H. Kelly from Wayne State.xxvii Woodward’s
research focused upon Reconstruction, and both his and Franklin’s work centered on social and
political history. Neither wrote about the relationship of southern or African American history to
the re-writing of the Constitution that occurred during Reconstruction, and neither looked at the
era prior to the Civil War for clues about to the meanings of the Reconstruction Amendments.
Kelly was a constitutional historian, co-author of one of the leading textbooks in the field. But
he was a generalist, not a specialist in the Reconstruction Amendments. Perhaps as a
consequence of what Graham, in a law review essay first published in 1953, called the “evil
days” that had befallen constitutional history as a scholarly enterprise, there were few upon
whom Thurgood Marshall could call to help sort out the original meanings of the Fourteenth
Amendment.xxviii
In 1953, Howard Jay Graham was working at the Los Angeles County Law Library. xxix
Although only sparsely recognized as such, he was one of the nation’s leading scholars of the
Fourteenth Amendment, perhaps the leading scholar.xxx He had been writing on the Amendment
since the late 1930s. In 1938, the Yale Law Journal published his two-part attack on Beardian
constitutionalism, a rejection of the idea that the Republicans after the Civil War engaged in a
“conspiracy” to denude the Reconstruction Amendments – as they were drafting them and
engineering their congressional passage—of the power to preserve African Americans’ civil
rights and clothe them with the ability to support corporate power.xxxi In 1950, he published two
essays in the Wisconsin Law Review that argued for the “early antislavery backgrounds of the
Fourteenth Amendment.”xxxii These later publications built upon a collaboration with his friend
from the Political Science graduate program at Berkeley, Jacobus tenBroek. In this project, the
two had begun by researching the post-Civil War debates over the Reconstruction Amendments.
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By 1946, they had come to understand that discovering the original meaning of the
Reconstruction Amendments would require more than simply reading the Reconstruction-era
documents – which were both voluminous and ambiguous in their meanings. Graham and
tenBroek started instead to seek the meaning of Section One of the Fourteenth Amendment in the
discourse of the abolitionist movement. The collaborators’ great intellectual innovation lay in
what tenBroek termed “push[ing] across ‘the great divide’ of December, 1865, into the social,
political, and economic background of the amendment.”xxxiii Their collaboration was intense,
rocky, and frequently interrupted by both men’s other professional responsibilities. Late in 1949,
they decided to go their separate ways, with each free to publish based upon his own research
and their joint conclusions.xxxiv Graham was the first to make it into print, with his 1950 essays
in the Wisconsin Law Review. But tenBroek made the bigger impact, with his 1951 book, The
Antislavery Origins of the Fourteenth Amendment (reprinted in 1965 as Equal Under Law).xxxv
Thus it was that this deaf librarian was invited by Thurgood Marshall to be among the
scholars “tops in their fields” who helped the NAACP prepare for its second effort to persuade
the Supreme Court to rethink Plessy v. Ferguson. In his only book, a collection of previously
published essays, with editorial notes, that the State Historical Society of Wisconsin brought out
in 1968, Graham recalled:
On June 16, 1953, just a month after I had received a Guggenheim Fellowship for
further work on the Fourteenth Amendment [a remarkable event in itself given
Graham’s marginality as a scholar], and shortly after the Supreme Court had
requested a full rebriefing and reargument of the School Desegregation Cases, I
received a telegram from Mr. Thurgood Marshall . . . Would I join in preparation
of working papers on the history and adoption of the Fourteenth Amendment for
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use of counsel engaged in the requested rebriefings? . . . A . . . paper was needed
which would summarize the ‘Antislavery Backgrounds’ and the ‘Antislavery
Origins’ and related research, and which would relate the drafts and the
Amendment to the broader streams of constitutional theory and history. The first
two months of the Guggnheim Fellowship year thus were spent . . . happily
working eighteen-hour days preparing a 35,000-word survey, summary, and
abridgment of previous work . . . It was satisfying good fortune indeed, for a lay
bibliographer who had counted his compensation in footnotes and in dissents, to
have finally contributed . . . to the main brief of the major constitutional case of
our time.xxxvi
Ten years after sending this telegram, when he was a federal appeals court judge,
Thurgood Marshall remembered Graham’s contribution as “extraordinary.” He recalled as well
“several trips to California for the sole purpose of going over these materials with Dr. [sic]
Graham.”xxxvii TenBroek, too, was invited to join the group that was drafting the new brief.
However, as Kluger says somewhat elliptically, when invited,“[t]enBroek explained. . . how he
worked and what kind of assitance he would need—conditions that made his cooperation almost
impossible on such short notice and with so little time to complete the project.”xxxviii Regardless
of this, in mid-August, 1953, Marshall assured tenBroek that the attorneys had “taken full
advantage of” Anti-Slavery Origins of the Fourteenth Amendment. Marshall asked if, while in
San Francisco, he could “come over and talk over with you some of the ideas we have. I would
like to do this,” he added, “in order to check on some of our conclusions.”xxxix (The meeting
never occurred.)
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A Legal Dilemma
Graham’s and tenBroek’s contributions to the Brown brief relied upon their scholarly
collaboration. Their joint effort to re-write the history of the Reconstruction Amendments had
two proximate sources. The first was Graham’s two-part piece in the Yale Law Journal in the
late 1930s, with its left-liberal insistence that the constitutional text allowed for reform and was
not inevitably economically and racially conservative. The second was tenBroek’s scholarship
from the same period, which argued for a Realist, historically based approach to constitutional
interpretation. In the work he did for his doctorate in law at Berkeley and his first published
essays, tenBroek argued for what he called “extrinsic aids” to constitutional interpretation. xl
These aids might include reports of congressional debates over legislators’ intentions in drafting
constitutional provisions. They might also include a wider array of historical materials, such as
the newspapers and pamphlet literature of movements outside the courts and legislatures that
pressed for constitutional change.
There are a range of other, more far-flung sources of tenBroek’s and Graham’s
collaboration and its content. These include the constitutional revisionism of the New Deal and
Legal Realist movement; the wartime emergence of a new human rights sensibility that
encompassed the treatment of disabled people, religious minorities, racial and ethnic minorities,
and the social-democratic politics of Western Europe as well as the Four Freedoms of the
Roosevelt Administration; the two scholars’ own experiences of discrimination on account of
their respective disabilities; and the disability-rights discourses of the 1930s and 1940s,
especially those of blind activists including tenBroek himself and including the rhetoric of his
organization, the National Federation of the Blind.
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Graham and tenBroek began to collaborate actively in the early 1940s. This was shortly
after tenBroek had completed two years at Harvard Law School and another two at the
University of Chicago Law School, earning one doctorate in law at Berkeley and beginning
another at Harvard, and attempting to obtain a full-time teaching position. He had also during
these years founded the National Federation of the Blind (in 1940, at the age of twenty-nine).
Finally, in 1942, he received an offer of a fulltime position in the Department of Speech at his
alma mater. He began teaching in the fall of 1943.xli Graham had by this time spent twelve
fruitful but perhaps also frustrating years in Berkeley, had completed an M.A. in political science
and training in librarianship. Despite his widely acknowledge expertise, Graham held neither a
Ph.D. nor a law degree. He started his career at the Los Angeles County Law Library in 1939.
He had faced the predictable barriers both to education and to a scholarly career on account of
his disability and on account of first the Depression and then wartime declines in university
enrollments.xlii
The two scholars co-wrote a series of reviews of state constitutional law for the American
Political Science Review (in 1943-44, 1944-45, and 1945-46).xliii They started work on “The
American Judiciary and the American Dilemma” in the early fall of 1945, a year after
publication of Myrdal’s An American Dilemma.xliv By 1946, they were writing to one another
several times a week and often more than once a day, sharing citations, interpretations of data,
and drafts of writing. Their correspondence was particularly rich since Graham was a selfdescribed “lip-reader,” and there was at this point in history no assistive technology that would
allow him to speak on the telephone.xlv TenBroek was blind and could not read the letters
Graham sent. However, his wife, Hazel tenBroek, who was sighted, worked nearly full-time
reading aloud to him. (Nic tenBroek, Jacobus and Hazel’s younger son, has estimated that his
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mother spent at least thirty-five hours a week reading to his father.xlvi) Hazel tenBroek
functioned as a human assistive device, or prosthesis, who enabled her husband’s scholarly
career and also enabled tenBroek’s and Graham’s collaboration.xlvii
As they attempted to contribute to the cause of racial equality by means of constitutional
history, tenBroek and Graham researched the immediate, post-Civil War, political context that
produced the Reconstruction Amendments, and most particularly the Fourteenth Amendment.
They were intent upon weakening the foundations beneath Plessy v. Ferguson (1896) and The
Slaughterhouse Cases (1873) – as Graham had already, in his New Deal-inspired essays on the
Fourteenth Amendment from the late 1930s, attempted to weaken the doctrines of corporate
personhood, liberty of contract, and substantive due process.xlviii In service of this end, they took
the relatively innovative strategy of largely bypassing judicial interpretations of the Amendments
and focusing instead on congressional materials. Their initial assumption appears to have been
that the intentions of the congressional authors of the Fourteenth Amendment, and of the
Members of Congress who approved it, were broadly equalitarian; by reading their words, one
could develop a convincing case to the effect that Jim Crow segregation was inconsistent with
their intentions and that appellate jurisprudence on this and similar questions had been incorrect
for half a century and needed to be thrown over. “[O]ur whole article,” Graham wrote, “is really
a detached attack on the falsity and superficiality of the conventional view” of the Fourteenth
Amendment. He added:
In our article the contrast between what the Negro what others have got out of
Amend, a paradox that 80yrs later they’ve got so damned little while others have
got so much- that, to be sure, is the main problem we’re attacking. The second
thing (and it follows right along from the first) is that we are also attacking a
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smug hindsight view of the 14th (which has acted more less as a drug to ease
social and judicial consciences as well as a barrier even to arguing into these
matters) which view is simply that the Amend was drafted by dupes and fools.xlix
They trained their energies on post-Civil War debates on the Civil Rights Bill, Freedmen’s
Bureau, and legislation to outlaw the Ku Klux Klan, as well as on the Thirteenth and Fourteenth
Amendments, in order to delineate the contours of the emergent political understanding of rights
for freedpeople after the war and the specific place of the Fourteenth Amendment within that
understanding.l
TenBroek and Graham discovered fairly quickly that parsing the “original intent” of the
“framers” of the Fourteenth Amendment was an extremely complex matter. As they gathered
information about the congressional sponsors of the Reconstruction-era rethinking of the
Constitution, they found that not everything these legislators said or did was consistent with their
own twentieth-century civil rights politics. In one letter in particular, from late in the fall of
1945, Graham complained to the tenBroeks: “We’re damned near at a dead end again as far both
as both = pr. of laws and [the] 13th [Amendment] are concerned.” He attributed the willingness
of some architects of the Reconstruction Amendments to countenance segregation and something
less than full equality under the law to “the intermarriage phobia [which] short circuited men’s
reasoning” – but this offered little comfort when the historical figures upon whom they were
counting to undo fifty years of jurisprudence accepted statutory separation of the races. li He
declared the pair’s effort to reconceptualize the Thirteenth Amendment “a Grant of Powers [to
the federal government] and Equal Protection a Mighty—Dud!”lii Graham found some of the
positions of Senator Lyman Trumbull, a Radical Republican sponsor of the Civil Rights Bill of
1866, particularly “complicating and embarrassing as hell.”liii
17
The collaborators began to overcome their impasse at the very end of 1945 or beginning
of 1946, when they switched their emphasis (and widened the distance between their method and
conventional forms of argumentation in constitutional law) from post-Civil War congressional
debate to the roots of the Reconstruction amendments in the ideology of the movement for the
abolition of slavery. As tenBroek wrote later, with a degree of understatement that sounds
almost ironic, “the discovery of the antislavery origins of the Civil War amendments dissipates
much of the confusion resulting from the congressional and ratification debates.”liv The
resolution of their intellectual problem appears to have begun with Graham’s reading of The
Antislavery Impulse, by Gilbert Hobbs Barnes, which he referenced in November, 1945, and
reported having finished in February, 1946.lv Although there is a break in their correspondence
in this period, and so it is difficult to follow their thinking entirely, by early in 1946 both Graham
and tenBroek had begun to reorient their work. As he assimilated the arguments in Barnes’s
book, which he found the “finest historical monograph I believe I’ve ever read,” Graham came to
understand the abolition movement as “moral and ethical, rather than economic in its
motivation.”lvi He summarized the research tasks that faced the pair and the arguments they
were aiming to make: “[W]e’re interested,” he wrote,” in determining the major elements in the
anti slavery constal argument, and particularly in working out the . . . evolution of those clauses
and concepts that later got into the 14th.”lvii While becoming enamored of the abolitionists and
respecting their moral depth, tenBroek and Graham set out to fashion as specific an argument as
they could about the development of political theory and, ultimately, of the language of the
Constitution. In response to arguments of tenBroek’s that he found too imprecise in regard to the
natural rights claims of abolitionists as against earthly law that condoned slavery, Graham argued
that “we must make the core of the narrative that 45 yrs old fight (not a fight against Slavery in
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all its natural rights inclusiveness but a fight for certain tangible rights and tangible for those who
had always been regarded as citizens); so that when the freedmen became citizens etc they fell
heir to these same rights, but not to all the inconsistencies and absurdities that fouled up the case
then and ever since.”lviii
Constitutional Change ‘From the Base Rather than the Top’
To a degree that may seem contradictory to a contemporary reader, tenBroek’s and
Graham’s approach to the Constitution was simultaneously originalist, historicist, and non-elite.
It was originalist in that it centered on the quest for the true meaning of the document; it was
historicist in that it sought that meaning in the rich documentation of the past; and it was nonelite, in that it encompassed not only the interpretations of existing constitutional texts by radical
activists but also made them, as the sources of the ideas that found their way into Section One of
the Fourteenth Amendment, the primary authors of constitutional change in U.S. history.lix
TenBroek argued in his book that the terms that ultimately found their way into Section One of
the Amendment, “privileges and immunities,” “due process,” and especially “equal protection”
acquired very specific meanings—the meaning people who were active in mid-nineteenthcentury politics understood them to have, their true meaning—years before the Civil War, from
their joined use in the argot of the activist movement for abolition:
The three much-discussed clauses of section I of the Fourteenth Amendment were
the product of and perhaps took their meaning, application, and significance from
a popular and primarily lay movement, which was moral, ethical, religious,
revivalist rather than legal in character. The movement was comprised of people
who knew little and cared less about the erudition and ancient usages of the law,
who came to the reading of the Constitution as dogmatic, even fanatical
19
reformers. . . It was as a culmination of this movement and usage that the clauses
of section I of the Fourteenth Amendment were made a part of the Constitution;
and their accepted meaning was the meaning which these reformers gave to them
on the hustings, in revival meetings, in pamphlets, and in the thousand other
outlets to their ardor.lx
Graham, writing in 1953, found this to be “perhaps the classic example of moral and ethical
revision of the law and of creative popular jurisprudence and constitution making—at least in the
nineteenth century. ‘Hearthstone opinions’ in this process obviously were far more vital and
determinative than judicial opinions. Constitutional Law here was growing at the base rather
than at the top.”lxi
Graham and tenBroek understood their scholarship as having enormous potential impact
both historiographically and legally or practically. During the period when he and Graham were
first plunging into their research on the abolitionist Constitution, tenBroek wrote to a friend that
he and Graham had “’dug up a lot of dope on the intended application of the amendment . . .
‘The upshot of all this is that the Federal government has constitutional jurisdiction, whether it
wants or can exercise it or not, against lynchings whether in or out of custody, against economic
discriminations, against discriminations in hotels, railroads, and the like’. And he added . . . ‘We
aren’t at all sanguine about the Supreme Court turning tail as soon as our findings are published
but they may want to turn tail some day and when they do we will have show[n] them how it can
be done’.”lxii
Experts on the Fourteenth Amendment
As Thurgood Marshall and the other attorneys of the LDEF considered how to address
the Supreme Court’s queries in the summer of 1953, they faced a great challenge. As Graham
20
argued in 1953, in asking the NAACP to make a case that the “framers” of the Fourteenth
Amendment had intended it to integrate all public schools, the Supreme Court may itself have
raised the bar to a point others had not been asked to reach. “[O]ne wonders,” he wrote,
“whether . . . the Court remembered that no such request ever had been made – or ever could
have been made - - with regard to countless matters and fields over which [the Court] previously
had extended the Amendment’s protection.” For example, “no one ever has found a single word
in the main debates [over the Reconstruction Amendments] suggesting that framers and ratifiers
‘contemplated or understood’ corporations to be ‘persons’ under the due process and equal
protection clauses. Yet this last, most vital point was conceded by the Court, without formal
opinion, and with the matter of framer-intent substantially waived, exactly 67 years ago!”lxiii
Faced with an admittedly ambiguous series of congressional debates over the Fourteenth
Amendment and its meanings, and with decades of narrow and reactionary decisions thereafter
by state and federal appellate courts, Thurgood Marshall and his team chose to utilize Graham’s
and tenBroek’s ideas about the “anti-slavery origins” of the new Constitution that was written
after the Civil War. They incorporated Graham’s and tenBroek’s creative act of historical
interpretation, the two collaborators’ leap into barely populated socio-legal constitutional
territory, into their own thinking about the nineteenth-century Constitution—and its role in the
twentieth century. The Graham-tenBroek thesis was not the sole argument in the 1953 brief in
Brown v. Board. However, it had the virtue of being fresh, and of navigating past the ambiguity
of the evidence from the Congressional debates over the Fourteenth Amendment, the wide array
of opinions within the Republican Party in the late 1860s, and the widespread tolerance of
segregated schooling in many states and by many legislators even after the Civil War.
The NAACP Brief in the School Segregation Cases
21
The NAACP’s brief to the Supreme Court of December, 1953, is divided into three parts,
with a conclusion and Supplement. The Supplement, a thirty-six-page-long disquisition entitled
“An Analysis of the Political, Social, and Legal Theories Underlying the Fourteenth
Amendment,” was written entirely by Howard Jay Graham. It was an abridged version of the
35,000-word-long memorandum Graham had drafted in the summer of 1953, a summary of his
(and tenBroek’s) argument for the abolitionist origins of Section One and an effort to place these
in the wider constitutional history of the United States.lxiv The key difference between the draft
and the published version was that the former carried the history through the passage of the
Thirteenth and Fourteenth Amendments, and then through a critique of the interpretation of the
appellate courts’ interpretation of the Fourteenth Amendment through the late nineteenth
century. The latter, by contrast, ended in 1859.lxv The material in the Supplement included only
that from the first twenty-nine pages of Graham’s ninety-page-long memorandum.
This historical Supplement was part and parcel of the argument made overall in the brief.
Part One addressed the court-based history of the Fourteenth Amendment, arguing not that new
data such as was provided by the doll studies allowed for a new interpretation of the
Amendment, but that “The Separate But Equal Doctrine Marked An Unwarranted Departure
From the Main Stream of Constitutional Development and . . . was Conceived in Error.”lxvi Part
One also included the John Hope Franklin-C. Vann Woodward material on African Americans’
status before and after the Civil War, and on the tragedy of 1877.lxvii Part Two of the Brief
concerned the original meaning of the Fourteenth Amendment, and specifically whether
according to the interpretation of those the brief (and Graham and tenBroek) called its “framers,”
the Amendment could be understood as either demanding or permitting desegregation of
elementary and secondary schools. This portion of the brief was drafted by a variety of people
22
and coordinated primarily by Alfred H. Kelly.lxviii However, Kelly and his collaborators relied
heavily upon tenBroek’s Antislavery Origins of the Fourteenth Amendment, and on the same
pre- and post-Civil War documents that Graham and tenBroek had been unearthing and mailing
to one another since the middle 1940s. Part Three spoke to questions the Vinson Court had
posed to the NAACP regarding the resolution of the problem of segregated schools: Should the
Court demand immediate integration, or would “an effective gradual adjustment” be acceptable?
Should the Court issue decrees itself, or appoint a special master, or “remand to the courts of first
instance with directions to frame decrees in these cases”?lxix
Part Two of the Brief was the center of the NAACP’s argument, and of the query the
Court had posed in June, 1953. It contained the most new information, legal-historical data that
had not been available to the Court when it deliberated over Brown the first time and that was
directly germane to the question before it. In its first twenty-six pages, tenBroek’s Antislavery
Origins of the Fourteenth Amendment was the only piece of contemporary scholarship cited.lxx
Following Graham and tenBroek, the NAACP brief argued that “[t]he framers of the Fourteenth
Amendment were men who came to the 39th Congress with a well defined background of
Abolitionist doctrine.”lxxi They were, the brief argued, enlightenment humanists inspired by the
Declaration of Independence, who “adhered with an almost fanatic devotion and an unswerving
determination to obliterate any obstructions” in the way of ensuring equal rights. The brief
continued: “The first Section of the Fourteenth Amendment is the legal capstone of the
revolutionary drive of the Abolitionists to reach the goal of true equality. It was in this spirit that
they wrote the Fourteenth Amendment and it is in the light of this revolutionary idealism that the
questions propounded by this Court can best be answered.”lxxii Moreover, the NAACP argued to
the Court that members of the post-Civil War Congress who had been exposed to abolitionist
23
discourse over a period of years were “well aware” that the Fourteenth Amendment implied “a
veritable revolution in federal-state relations,” and its Republican members did not shrink from
this fact.lxxiii In a section titled “The Framers of the Fourteenth Amendment,” the NAACP
argued, again following tenBroek’s and Graham’s research, that the Joint Committee of Fifteen
that drafted the Fourteenth Amendment “was altogether under the domination of a group of
Radical Republicans who were products of the great Abolitionist tradition.”lxxiv In conclusion,
according to Part Two of the Brief, “[t]he Fourteenth Amendment,” as drafted and approved,
“was intended to write into the organic law of the United States the principle of absolute and
complete equality in broad constitutional language.”lxxv
In the Supplement written by Graham, he made the argument for abolitionist origins even
more forcefully. “During the long anti-slavery crusade,” he wrote, “the trilogy” of terms – due
process, equal protection, and privileges and immunities – “became a form of shorthand for, and
the spearhead of, the whole of the argument against distinctions and caste based on race. Section
One of the Fourteenth Amendment,” he wrote, “thus marks the ‘constitutionalization’ of an
ethico-moral argument” that took form well before the Civil War. “[T]he synthesis,” he wrote,
that gave these clauses meaning “was made, not by lawyers or judges, but by laymen. Doctrines
originally worked out and propagated by the dissident minority became, by 1866, the dominant
constitutional theory of the country.”lxxvi Graham located the origins of the Reconstruction
Amendments in the “wave of humanitarianism, embracing quests for abolition of slavery,
suffrage for women, and penal, land, and other reforms” of the first half of the Nineteenth
Century.lxxvii He described—as many scholars have since—the change in abolitionist argument
from moral suasion to “a reluctant resort to political action . . . to a search for constitutional
power to free” the slaves.lxxviii
24
Graham’s Supplement to the Brief ended with a discussion of the direct connections
between Republican legislators who drafted the Fourteenth Amendment and the abolition
movement and its arguments.lxxix He ended with a detailed discussion of the speeches of
Representative John A. Bingham, who drafted Sections One and Five of the Fourteenth
Amendment.lxxx Graham argued that Bingham was one of those politicians whose ideas and
discourse had been shaped by the abolitionist movement. Furthermore, Graham argued,
Bingham’s pre-Civil War rhetoric indicated that he had brought that abolitionist understanding
into legislative politics, and to his interpretation of the Constitution.lxxxi He quoted Bingham’s
ringing language from 1859, objecting to the admission of Oregon into the Union because its
constitution discriminated against free African Americans and forbade their migration into the
territory: “’The equality of all to the right to live; to the right to know; to argue and to utter,
according to conscience; to work and enjoy the product of their toil, is the rock on which [the
United States] Constitution rests’.” By 1859, then, he concluded by arguing, the constitutional
understanding of the future framers of the post-Civil War Constitution was a decidedly
equalitarian one—a constitutional understanding to which state-sponsored discrimination in
public education would be an offense.
TenBroek and Graham stopped communicating with one another for a long period in the
1950s. They came back into contact in 1960, when Graham was on disability retirement from
his librarianship and tenBroek was in the thick of political and intellectual life at Berkeley,
within the National Federation of the Blind and, as a member (later chair) of the state Social
Welfare Board, in California.lxxxii Although tenBroek was mostly engaged intellectually with the
history and politics of social welfare, the two resumed their close intellectual correspondence.
25
Reflecting on their collaboration, tenBroek wrote: “I think we both have felt for a long time . . .
that our work provided an indispensable and largely neglected background for the current race
relations work of the Court.”lxxxiii
I agree that Graham’s and tenBroek’s work has unwisely been neglected in constitutional
and civil rights history. Rather than simply adding them to the historical record, however, I want
to use the history of their contributions to highlight wider themes in the development of
constitutional interpretation in the middle twentieth century. So let me end by posing a few
counterfactual question: What might have been the consequences of following the
Graham/tenBroek thesis as presented in the NAACP Brief? What may have been lost in the
choice Chief Justice Warren made for living constitutionalism versus an abolitionist originalism
that claimed the Constitution’s true meaning lay in the words of “people who knew little and
cared less about the erudition and ancient usages of the law, who came to the reading of the
Constitution as dogmatic, even fanatical reformers”?
i
Richard Kluger, Simple Justice: The History of Brown v. Board of Education, the Epochal
Supreme Court Decision that Outlawed Segregation, and of Black America’s Century-Long
Struggle For Equality Under Law (New York: Vintage, 1975), 625.
ii
Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 19361961 (New York and Oxford: Oxford University Press, 1994), 197, describes three research
papers that “became the center of the NAACP brief,” by Howard Jay Graham, John Hope
Franklin and constitutional historian Alfred Kelly of Wayne State, and attorney William
Coleman (and collaborators).
iii
Carter in Kluger, Simple Justice, 625. Feminist legal theorist Martha Fineman has made the
idea of vulnerability the center of her political philosophy. See Fineman, “The Vulnerable
Subject: Anchoring Equality in the Human Condition,” Yale Journal of Law and Feminism, 20/1
(2008): PP.
iv
Letter from Howard Jay Graham (“Jay”) to Jacobus tenBroek (“Chick”), December 22, 1946,
tenBroek papers: Graham recalled that he had proposed the collaboration in August, 1945, on a
project he was calling “the Am. Jud. + Am. Dilemma.” In a letter on January 1, 1947, Graham
underlined his preference for doing the project as an article, or series of articles, rather than as a
book. Graham to tenBroek, January 1, 1947, Ibid. In his frustratingly under-referenced
biography of tenBroek, his colleague and collaborator Floyd Matson also remarks upon the
influence of Myrdal on the collaboration. He has the original title of the project as “The
26
Antislavery Movement and ‘The American Dilemma’.” Floyd Matson, Blind Justice: Jacobus
tenBroek and the Vision of Equality (Washington, D.C.: Library of Congress Press, 2005), 119120.
v
Daryl Scott, Contempt and Pity: Social Policy and the Image of the Damaged Black Psyche
1880-1996 (Chapel Hill: University of North Carolina Press, 1997). Scott discusses the Brown
case in his chapter 7, 119-136. He does not mention tenBroek or Graham, and he spends less
than a paragraph discussing the historical and originalist argument made in the bulk of the
NAACP brief of 1953 (see esp. p. 132).
vi
Brown v. Board of Education [347 U.S. 490] (1954).
vii
Ibid., 493.
viii
Ibid., 495. Scott argues persuasively that the apparent consensus among social scientists that
was represented in the Brown Opinion’s footnote to the Clarks, et al., was a chimera: although
social psychologists and sociologists in the mainstream of their professions generally believed in
racial equality and opposed segregation, their research prior to 1954 had not arrived at any
consensus on the negative effects of segregation on African American children’s sociopsychological development, or their ability to learn. On the contrary, the trend in this research,
according to Scott, was to find students in segregated southern schools better adjusted than their
counterparts in the urban north. Scott Contempt and Pity, 125-130,
ix
See, for example, Bruce Ackerman, We, The People, vol. 1: Foundations (Cambridge, MA:
Harvard University Press, 1991).
x
Risa Goluboff has recently argued forcefully along these lines, and this research reinforces her
interpretation of Carolene Products as having become a “precedent” for later equalitarian
jurisprudence only well after the fact. However, Graham’s and tenBroek’s work, as revealed in
the Brown brief, indicate that the NAACP’s development of a Fourteenth Amendment argument
in the school segregation cases may have represented less of a “lost promise” than Goluboff
believes it was.
xi
Graham’s and tenBroek’s research on the historical roots of the Fourteenth Amendment has
recently been rediscovered and replicated by the originalist (and libertarian/conservative)
constitutional thinker Randy Barnett. See his essay, “Whence Comes Section One? The
Abolitionist Origins of the Fourteenth Amendment,” Georgetown Public Law Research Paper
No. 10-06 and Journal of Legal Analysis, vol. 3 (2011).
xii
While I am not in the business of recommending modes of constitutional interpretation, I note
with interest the efforts of Jack Balkin to invent a new hybrid jurisprudential theory, which he
terms “living originalism.” Balkin argues that people who are concerned about the U.S.
Constitution should shift their attention from judges alone to the wide community of people,
including participants in activist social movements, who engage (and have historically engaged)
in processes of “constitutional construction.” See Balkin, Living Originalism (Cambridge:
Harvard/Belknap Press, 2011), 278-79: “Judges cannot be at the center of this account . . To
rethink living constitutionalism. . . [w]e must recognize that it is an account. . . of the processes
of constitutional decisionmaking. . . . [A] theory of living constitutionalism must focus not on
constitutional interpretation … but on constitutional construction. . . [I]t is addressed to all
citizens who want to know how the Constitution-in-practice changes through constitutional
construction and why these processes of constitutional change are democratically legitimate.” In
that are consistent with the place of Graham’s and tenBroek’s abolitionist originalism in the civil
rights story of the 1950s, Balkin argues perspicaciously that social movements in the U.S. have
27
employed as “key tropes” the ideas of constitutional “restoration” and “redemption.” Living
Originalism, 11. See also Balkin, Constitutional Redemption: Political Faith in an Unjust World
(Cambridge, MA: Harvard University Press, 2011).
xiii
One of the very few sources that Graham and tenBroek found sympathetic to their views of
the abolitionists and of Reconstruction in press as they were writing was Dwight Dumond,
Antislavery Origins of the Civil War in the United States (Ann Arbor: University of Michigan
Press, 1939). See letters from tenBroek to Graham, May 26, 1947 and June 18, 1947, tenBroek
papers. The center of the profession did not change until after publication of Kenneth Stampp’s
book, The era of Reconstruction (New York: W.W. Knopf, 1965), and even as late as 1988, Eric
Foner argued against vestiges of the “Dunning School” interpretation of the war in
Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper and Row,
1988). For a discussion of the transformation of this historiography, see Peter Novick, That
Noble Dream: The ‘Objectivity Question’ and the American Historical Profession (Cambridge:
Cambridge University Press, 1988), PP.
xiv
On this, see Samuel Moyn, The Last Utopia (Cambridge, MA: Harvard University Press,
2010); Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal
Declaration of Human Rights (New York: Random House, 2001).
xv
Felicia Kornbluh, “Disability, Anti-Professionalism, and Civil Rights: The National Federation
of the Blind and the ‘Right to Organize’ in the 1950s,” Journal of American History 97/4
(March, 2011): 1023-1047.
xvi
On Japanese Americans (as well as people of Mexican heritage), see Mark Brilliant, The
Color of America Has Changed: How Racial Diversity Shaped Civil Rights Reform in
California, 1941-1978 (New York and Oxford: Oxford University Press, 2010). On women’s
rights, see, among other works, Dorothy Sue Cobble, The Other Women’s Movement:
Workplace Justice and Social Rights in Modern America (Princeton: Princeton University Press,
2004).
xvii
On rehabilitation, see Beth Linker, War’s Waste: Rehabilitation in World War I America
(Chicago: University of Chicago Press, 2011). On the philosophy of rehabilitation and
comparative perspectives on it, see Henri-Jacque Stiker, A History of Disability, trans. William
Sayers (Ann Arbor: University of Michigan Press, 1999-French edition, 1997), chapter 6, “The
Birth of Rehabilitation,” 121-189. Also see C. Esco Obermann, A History of Vocational
Rehabilitation in America (Minneapolis: Ayer Company Publishers, 1965) and Ruth O’Brien,
Crippled Justice: The History of Modern Disability Policy in the Workplace (Chicago:
University of Chicago Press, 2002), especially pp. 63, 81, and 83-85.
xviii
See, for example, Jacobus tenBroek, “The Work of the National Federation of the Blind,”
presidential banquet address, 1944: “Now, the idea of equality lies at the basis of modern
democratic organization and is commonly thought to apply to all groups except such minority
groups as the blind. It does not mean, of course, that all men are equal in physical, mental, or
moral qualities. [It does mean]: Every man should be given an opportunity to fit himself into the
economic organization of the country in a way which his qualities and his training provide for. It
is the opportunity to be tested on our merits. This is the idea of the United States Supreme
Court, which has often said that the idea of equality is the idea that men should be treated equally
unless there is a sufficient difference between them which is related to social purposes and bears
upon the objective then in contemplation . . . Therefore, our second fundamental principle is the
principle of equality, and it underlines practically all of the claims that we make.” Quoted in
28
Matson, Walking Alone and Marching Together: A History of the Organized Blind Movement in
the United States (Baltimore, MD: National Federation of the Blind, 1990), 31-32. TenBroek
was more explicit about his equality claims on behalf of blind adults in an address from 1948, “A
Bill of Rights for the Blind,” which drew upon the Truman Administration’s statements on civil
rights (and which was given two years before the Sweatt and McLaurin decisions, and the same
year as Shelley v. Kraemer): “[T]he blind man or woman has the same feelings and desires, the
same sorrows and joys as sighted persons. . . The third right that we would seek to establish in
our great charter of liberties is one that is not peculiar to the blind, but one which is common to
all – equality; but the special circumstances of blindness, particularly the lack of understanding
about it, make it desirable to re-assert the right and show its relevance. The idea of equality has
been associated with all the great struggles of the masses of mankind to better their lot in the
history of Western civilization . . . It was placed at the base of our constitutional system from
Lockean and Jeffersonian sources and placed in the Constitution as the culmination of the
greatest humanitarian movement in our history, namely, abolitionism . . . Yet this fundamental
part of our system and our heritage is daily denied to the blind. We are denied equal treatment
under the rule of law, equal right to the self-respect which derives from a sense of usefulness,
and equal opportunity to compete for the normal means of livelihood.” Reproduced in full in
Matson, Walking Alone, 37, 40. Matson notes that the three themes of this speech, “Security;
Equality; Opportunity” became the “famous motto” of the National Federation of the Blind.
Walking Alone, 42. On Newel Perry, see Catherine Kudlick, “The Outlook of The Problem and
the Problem with The Outlook: Two Advocacy Journals Reinvent Blind People in Turn-of-theCentury America,” in The New Disability History, ed. Paul Longmore and Lauri Umansky (New
York: New York University Press 2001), 198.
xix
Barbara Welke, Law and the Borders of Belonging in the Long Nineteenth-Century United
States (Cambridge: Cambridge University Press, 2010).
xx
Scott, Contempt and Pity. And see, for example, the ubiquity of references (metaphorical and
otherwise) to disability in [Daniel Patrick Moynihan], “The Negro Family: A Case for National
Action,” reprinted in Lee Rainwater and William Yancey, The Moynihan Report and the Politics
of Controversy (Complete Citation), pp.
xxi
See discussion of these policies in Kornbluh, “Disability, Anti-Professionalism, and Civil
Rights,” 1032.
xxii
This is part of the project of “Rebranding Disability Rights,” in the words of the Symposium
at Boalt Hall, UC-Berkeley, scheduled for March, 2012. See also Susan Burch ongoing work on
disability and race under Jim Crow (edited book with Michael Rembis).
xxiii
Eve Kosofsky Sedgwick, The Epistmology of the Closet (CITE), pp. Among disability
historians, Douglas Baynton has done the most profound work along these lines (see his essays
in immigration history and on disability and inequality in American history).
xxiv
Tushnet, Making Civil Rights Law, 194-96; Kluger, Simple Justice, 599-602 (on
Frankfurter’s role in particular in the deadlock and request for reargument), 614 (different
Justices’ assessments of what the vote would have been had they decided in 1952); and Scott,
Contempt and Pity, 132.
xxv
Court Order quoted in NAACP Legal Defense and Educational Fund, Brief for Appellants in
Nos. 1, 2 and 4 and for Respondents in No. 10 on Reargument, in the Supreme Court of the
United States, October Term, 1953, No. 1 Oliver Brown, et al., Appellants, vs. Board of
Education of Topeka, et al., Appellees, No. 2 Harry Briggs, Jr., et all., Appellants, vs. R.W.
29
Elliott, et al., Appellees, No. 4 Dorothy E. Davis, et al., Appellants, vs. County School Board of
Prince Edwards County, Appellees, No. 10 Francis B. Gebhart, et al., Petitioners, vs. Ethel
Louise Belton, et al., Respondents. Appeals from the United States District Court for the District
of Kansas, the Eastern District of South Carolina and the Eastern District of Virginia, and on
Petition for a Writ of Certiorari to the Supreme Court of Delaware, Respectively, p. 13.
xxvi
Memorandum from Thurgood Marshall to Board of Directors of NAACP, July 16, 1953,
NAACP papers, Reel #23, frame #? [directly after end of HJG draft memorandum].
xxvii
See, among other works, C. Vann Woodward, Origins of the New South, 1877-1913 (Baton
Rouge: Louisiana State University Press, 1951); Woodward, Reunion and Reaction: The
Compromise of 1877 and the End of the Reconstruction (Boston: Little, Brown and Company,
1951); Woodward, The Strange Career of Jim Crow (New York and Oxford: Oxford University
Press, 1955); John Hope Franklin, From Slavery to Freedom: A History of African Americans
(New York: Knopf, 1947); Franklin, The Militant South, 1800-1861 (Cambridge, MA:
Harvard/Belknap, 1956); Franklin, Reconstruction After the Civil War (Chicago: University of
Chicago Press, 1961); Alfred H. Kelly and Winfred A. Harbison, the American Constitution: Its
Origins and Development (New York: W. W. Norton, 1948). Arthur Spingarn’s Forward to the
brief also acknowledges Dr. Howard M. Bond, President of Lincoln University, Pennsylvania,
for having written a long background memorandum, and it acknowledges a long list of other
scholars who consulted with the legal team. Arthur B. Spingarn, “Foreward,” no page.
xxviii
Howard Jay Graham, Everyman’s Constitution: Historical Essays on the Fourteenth
Amendment, the ‘Conspiracy Theory,’ and American Constitutionalism (Madison: State
Historical Society of Wisconsin, 1968), Chapter 6, “The Fourteenth Amendment and School
Segregation,” 272. (Originally: Graham, “The Fourteenth Amendment and School Segregation,”
Buffalo Law Review 3 (Winter, 1953): 1-24.)
xxix
Graham, Everyman’s Constitution, xiii: he was Order Librarian there from 1939-1950, and
Bibliographer from 1950 to 1968. Spingarn’s Foreward, to the Brief for Reargument has
Graham as librarian of the Los Angeles County Bar Association.
xxx
Kluger writes that “[t]he two experts probably most deeply versed in the subject [of the
Fourteenth Amendment] shared a pair of traits,” i.e., that they were Californians and disabled.
Simple Justice, 625. In his foreword to Graham’s book, Brandeis University constitutional
historian Leonard Levy called Graham “surely the greatest authority on the history of the
amendment,” its “Maitland,” and perhaps the greatest living authority on the history of the
Constitution in the United States. Levy, “Foreword,” to Graham, Everyman’s Constitution, vii.
xxxi
Howard Jay Graham, “The ‘Conspiracy Theory’ of the Fourteenth Amendment,” Pt. 1, Yale
Law Journal 47 (January, 1938): 371-403 and Pt. 2, Yale Law Journal 48 (December, 1938):
171-194. Levy’s encomiums to Graham, cited above, included the suggestion that Graham’s
1938 essay had something to do with the death of substantive due process and renaissance of
equal protection jurisprudence that (supposedly) occurred after the Court published its decision
in Carolene Products, with its famous fourth footnote. Levy, “Foreword,” vii-viii.
xxxii
Graham, “The Early Antislavery Backgrounds of the Fourteenth Amendment” Wisconsin
Law Review 1950 (May, July): 479-507, 610-661. In-between the conspiracy theory essays and
these, he published “Justice Field and the Fourteenth Amendment,” Yale Law Journal 52
(September, 1943): 851-889. In-between the Wisconsin pieces and his work with the NAACP,
he also published “Extra Judicial Rise of Due Process, 1830-1860,” California Law Review 40
30
(December, 1952): 483-500. See “BIBLIOGRAPHY, Howard Jay Graham,” “GRAHAM,
Howard Jay 1960-1963 – Correspondence,” tenBroek papers.
xxxiii
Jacobus tenBroek, The Antislavery Origins of the Fourteenth Amendment (Berkeley and
Los Angeles: University of California Press, 1951), 3.
xxxiv
Matson, Blind Justice, 126-27. “[E]ventually the finger-pointing grew personal, and each
partner began to attach the other at his most vulnerable point—his handicap . . . Both men were
clearly wounded by these seeming insults and perhaps equally so . . . In noting Graham’s
increasingly frequent bouts of brooding and frustration, which led to outbursts of recrimination
against his collaborator, tenBroek could not resist observing that ‘deeply and psychologically,
this trait probably is a result of the terrible isolation which your handicap imposes upon you’.
Graham responded furiously with a reciprocal charge of blindness-related flaws in tenBroek’s
character and conduct.” Matson dates the break-up of their collaboration to 1948; in my reading
of their correspondence, it appears that they made up one last time in 1949, with the intention of
publishing jointly, but then had one final split before each published his work.
xxxv
See letter from Jacobus tenBroek, Berkeley, CA, to Howard Jay Graham, Los Angeles, CA,
December 11, 1961, “GRAHAM, Howard Jay 1960-1963—Correspondence,” tenBroek papers:
In preparing for a paperback re-issue of his book, tenBroek asked Graham for his ideas “about a
possible means of integrating your background article[s] into the book? . . . I am here struggling,
somewhat at least, putting back together what never should have been torn asunder.”
xxxvi
Graham, Everyman’s Constitution, Chapter 6, Editorial Note, 268-269.
xxxvii
Letter from Thurgood Marshall, United States Court of Appeals, New York City, to Dr.
Louis B. Perry, President, Whitman College, Walla Walla, Washington, May 21, 1963
[recommending Graham for an honorary degree], cc. Jacobus tenBroek, “GRAHAM, Howard
Jay 1963-1963—Correspodnence,” tenBroek papers. Marshall noted: “I was always impressed
with his scholarly approach to questions and the demonstration of a terrific amount of research
and an unselfish attitude of sharing the benefits of his research with others.”
xxxviii
Kluger, Simple Justice, 625. Perhaps tenBroek was referring here to the assistance he
routinely received from his wife and from various young collaborators—assistance in locating
documents and reading them aloud.
xxxix
Letter from Thurgood Marshall, Director and Counsel, NAACP Legal Defense and
Educational Fund, Inc., New York City, to Professor Jacobus tenBroek, Berkeley, CA, August
18, 1953, No File, tenBroek papers.
xl
[Five Articles published in California Law Review, 1938-1939]
xli
TenBroek spent two years on a one-year fellowship at Harvard Law School and two in a oneyear position at the University of Chicago Law School. On his final settlement with Berkeley,
see Letter from Jacobus tenBroek, Chicago, Illinois, to Charles Aikin, Berkeley, CA, March 3,
1942; Letter from Gerald Marsh, Berkeley, CA, to Jacobus tenBroek, March 20, 1942; tenBroek
to Marsh, April 13, 1942; and tenBroek to Aikin, April 30, 1942, all quoted in Lou Ann Blake,
“Jacobus tenBroek: Letters to Berkeley,” Braille Monitor 51/3 (March, 2008), no page,
http://www.nfb.org/images/nfb/Publications/bm/bm08/bm0803/bm080312.htm [accessed
January 11, 2012]. For tenBroek’s efforts to find a job generally, see Blake, “Jacobus tenBroek:
Letters to Berkeley.” TenBroek’s younger son, Nic, remembered his father’s search for a job as
even more tortured and difficult than the documentary record indicates that it was; he recalled
that, after having been denied positions everywhere else in the U.S., the senior tenBroek was
hired as a Lecturer at Berkeley after offering his services for free for the first year Kornbluh
31
interview with Nic tenBroek.
xlii
Graham, Everyman’s Constitution, xiii: Graham acknowledges his gratitude to the Berkeley
School of Librarianship, “for further professional preparation, often under mutual difficulties—
bridged in this instance, as always, by my wife Mary’s faithful assistance.” For sensitivity to the
role of the war in constraining academic careers, I rely upon assorted letters excerpted in Blake,
“Jacobus tenBroek: Letters to Berkeley.”
xliii
“State Constitutional Law in 1943-44,” American Political Science Review 38 (August,
1944): 670-92; “State Constitutional Law in 1944-45,” American Political Science Review 39
(August, 1945): 685-719; and “State Constitutional Law in 1945-46,” American Political Science
Review 40 (August, 1946): 703-28.
xliv
Graham had great respect for Myrdal’s study. In the editorial notes following republication
of his original Yale Law Review piece on the “conspiracy theory,” Graham writes: “Not merely
the law review literature, but even the Journal of Negro History reflects the national paucity of
constitutional research and discussion at this period [late 1930s]. Such was the price and impact
of the 1877-1897 constitutional and sectional ‘settlement.’ All honor therefore to the work of the
NAACP, and to the Carnegie Corporation . . . for launching, in 1937, the foundation study which
culminated in An American Dilemma.” Everyman’s Constitution, 67, fn # 11.
xlv
Graham, Everyman’s Constitution, “Preface,” xii, describes himself as “a librarian and
lipreader—a member of both groups that understand best how corporate and sociological modern
research and communication are.”
xlvi
Kornbluh notes on Interview with Nic tenBroek, DATE, by telephone. Occasionally Graham
would acknowledge that the person who was actually reading his letters was Hazel tenBroek, but
generally he would not. See Letter of Howard Jay Graham to Jacobus (“Chick) tenBroek,
October 28, 1945, [NEED FILE NAME, BOX #], Jacobus tenBroek papers, tenBroek Library,
National Federation of the Blind, Baltimore, MD: “Hazel, Never mind this I’ve repeated the
important parts of it elsewhere . . .”
xlvii
Letter from tenBroek to Graham, January 21, 1947, tenBroek papers: “Hazel has been sick
for several days and consequently haven’t been able to do much.” See also tenBroek to Graham,
December 14, 1946 (her role as research assistant), June 3, 1947 (“We found this the other day
when we were looking for the Anti-Slavery Record. . . “), and August 12, 1947 (Hazel as clerical
assistant who found an important letter in Jacobus’s files). Hazel tenBroek’s role was usually
unmentioned, but occasionally Graham mae it clear that he understood that she was his
immediate audience, and that he reached Jacobus only through her. See letter from Howard Jay
Graham to Jacobus tenBroek, October 28, 1945, tenBroek papers, in which Graham wrote
directly to Hazel, breaking the fourth wall, as it were, of illusion that Graham and tenBroek were
communicating with one another in an unmediated way: “Chick should read this quote,” Graham
directed, and added, a few paragraphs later: “Hazel, Never mind this [i.e., don’t bother reading it
aloud] I’ve repeated the important parts of it elsewhere and the rest is ‘just sketching’.” Mary
Graham, who was not deaf, had her own career as a librarian, and so she did not enable their
collaboration to the same degree that Hazel tenBroek did; however, see Graham, Everyman’s
Constitution, xiii, on which Graham wrote of his difficulties in completing his training in
librarianship, “bridged in this instance, as always, by my wife Mary’s faithful assistance.”
xlviii
Graham, “Conspiracy Theory I” and “Conspiracy Theory II”; Graham, editorial notes,
Everyman’s Constitution on relationship between “the Nine” and his research; Black dissent in
the Connecticut life insurance case, 1938, citing Graham; and Leonard Levy in Everyman’s
32
Constitution on the (fictitious?) relationship between Graham’s scholarship and the fall of
substantive due process in the late 1930s-early 1940s.
xlix
Letter from Howard Jay Graham, Los Angeles, CA, to Jacobus tenBroek, September 3, 1945,
tenBroek papers. Matson quotes from a letter tenBroek wrote to a friend early in 1946 that
makes much the same point (and which was provoked by the Supreme Court’s Opinion in the
case Screws v. United States (1944)): “’This case,’ wrote tenBroek to a friend, ‘raises the
question of the meaning of the Fourteenth Amendment – and the most patent fact about it is that
after eighty years in which the Chinese, the Whites, corporations, business interests and
everybody imaginable has got something out of the amendment . . . the Negro for whom it was
primarily intended has secured only frustration’.” TenBroek letter to “Terry,” February 25,
1946, quoted in Matson, Blind Justice, 121-22.
l
See letters from Graham to tenBroek, September 3 and 4, October 1st and 28th, and November
25, 1945, as well as several undated letters apparently from the Fall of 1945, tenBroek papers.
li
Graham to tenBroek, n.d. [filed in-between letters dated October 28 and November 25],
tenBroek papers. Graham continues: “[O]n = prot. [Lyman] Trumbull [co-author of the
Thirteenth Amendment] goes on to say . . . there is no denial of = pr. by a law forbidding
intermarr[iage] of blacks and whites, so long as it applies to both races!”
lii
Ibid.
liii
Letter from Graham to tenBroek, October 28, 1945, tenBroek papers. Graham also refers to
some “embarrassing” views of John Bingham, the chief author of the Fourteenth Amendment.
See Graham to tenBroek, October 1, 1945, Ibid.
liv
tenBroek, Antislavery Origins, 4.
lv
Gilbert Hobbs Barnes, The Antislavery Impulse (New York: Appleton-Century Books,
published with the assistance of the American Historical Association, 1933). See letters from
Graham to tenBroek, November 25, 1945 and February 3, 1946, tenBroek papers.
lvi
Graham to tenBroek, February 3, 1946, tenBroek papers. Graham here referenced a letter
from tenBroek, which I do not have, in which tenBroek, too, assessed the abolition movement as
fundamentally a moral one—and took issue with the Beardian or Progressive interpretation,
which placed economics at the center.
lvii
Graham to tenBroek, February 3, 1946, tenBroek papers. In addition to abolitionist discourse,
Graham mentioned other pre-1865 sources, such as the Declaration of Independence, which
abolitionists under “as a secondary constitution” (and as a source of anti-slavery legal argument),
and the party platforms of the reformist political parties between 1840 and 1860. “Boy this is the
pay off,” he wrote. “The 1844 Liberty platform is Bingham’s Theory [i.e., the major clauses of
the Fourteenth Amendment] in a nutshell.” In terms of scholarship in constitutional law, he
commented: “It’s a hell of a note that constal historians like Corwin and McLaughlin have been
writing all these years without adequate notice of this!” Ibid.
lviii
Letter from Graham to tenBroek, February 13, 1946, tenBroek papers.
lix
For such an approach to legal meaning-making, see William Forbath, Hendrik Hartog, and
Martha Minow, “Legal History from Below,” Wisconsin Law Review (1985): FINISH CITE.
lx
tenBroek, Antislavery Origins, 94-95.
lxi
Graham, Everyman’s Constitution, chapter 6 (originally Buffalo Law Review, 1953), 284-85.
lxii
tenBroek to “Terry,” February 25, 1946, quoted in Matson, Blind Justice, 122-123.
lxiii
Graham, Everyman’s Constitution, Chapter 6 [Buffalo Piece, 1953], 275.
33
“SUPPLEMENT: An Analysis of the Political, Social, and Legal Theories Underlying the
Fourteenth Amendment,” brief, 199-235. Compare with Howard Jay Graham, “SCHOOL
SEGREGATION CASES: PROPOSED APPENDIX TO APPELLANTS’ BRIEFS – Part One:
The Purpose and Meaning of Sections One and Five of the Fourteenth Amendment: The
Historical Evidence Reexamined,” n.d., Series II [CHECK THIS], Reel 23, [FRAME
NUMBERS], NAACP papers.
lxv
Appendix, 234.
lxvi
NAACP Brief, ii, 38-49.
lxvii
Brief, iii, 50-66.
lxviii
ACCORDING TO AN ENCYCLOPEDIA ENTRY BY RICHARD BERNSTEIN, KELLY
WROTE AN ARTICLE ABOUT HIS EXPERIENCE WORKING ON THE BRIEF, WHICH
SHOULD TELL ME MORE ABOUT EXACTLY HOW THEY DID THE WORK. Also see
Tushnet, Making Civil Rights Law, pp., and Kluger, Simple Justice, pp..
lxix
Order for Reargument, June 8, 1953, quoted in NAACP Brief, 14.
lxx
NAACP Brief, 67-93.
lxxi
NAACP Brief, 68. The footnote here was to tenBroek, Antislavery Origins, 185-86.
lxxii
NAACP Brief, 69. The passage also reads: “In their drive toward this goal, it may be that
they thrust aside some then accepted notions of law and, indeed, that they attempted to give to
the Declaration of Independence a substance which might have surprised its draftsmen. No
matter, the crucial point is that their revolutionary drive was successful and that it was climaxed
in the Amendment here under discussion.”
lxxiii
NAACP Brief, 80.
lxxiv
NAACP Brief, 93.
lxxv
Ibid., 103. Note that this is a section heading.
lxxvi
Ibid., 199.
lxxvii
Ibid., 204.
lxxviii
Ibid., 212. The language is nearly identical in Graham PROPOSED APPENDIX, p. 16.
lxxix
Supplement, 225-27.
lxxx
Graham had first explored some of these speeches in print in his original “Conspiracy
Theory” essay from 1938. [Cite]
lxxxi
Supplement, 228-33.
lxxxii
tenBroek to Graham, April 12, 1960, “GRAHAM, Howard Jay 1960-1963
Correspondence,” tenBroek papers.
lxxxiii
tenBroek to Graham, May 28, 1963, “GRAHAM, Howard Jay 1960-1963 Correspondence,”
tenBroek papers.
lxiv
34