Plessy Preserved: Agencies and the Effective Constitution

95 Pages Posted: 18 Feb 2020 Last revised: 6 Apr 2020

See all articles by Joy Milligan

Joy Milligan

University of California, Berkeley, School of Law

Date Written: December 16, 2019

Abstract

Sometimes the judicial Constitution is not the one that matters. The administrative state is capable of creating divergent legal frameworks that powerfully shape public life. But to the extent that they reside outside of judicial precedent, such administrative regimes may go unrecognized.

In this Article, I chart the history of an alternative “administrative Constitution” that remains etched in U.S. cities. Drawing on original archival research, I show that throughout the twentieth century, the federal administrators who oversaw the nation’s public-housing program implemented and defended a legal regime based on Plessy v. Ferguson’s “separate but equal” principle — even after the judiciary announced the opposing mandate of Brown v. Board of Education, and after the political branches adopted formal civil-rights reforms in the 1960s. Why did an agency led by liberal reformers and dedicated to serving the poor do this? Administrators believed the public-housing program was politically unsustainable without racial segregation, while agency lawyers argued for preserving the older framework, which had once been understood as a progressive triumph in its commitment to racial “equity.” Procedural barriers shielded the agency from defending that entrenched framework in the courts.

Uncovering public housing’s racial Constitution challenges conventional legal narratives around civil rights by foregrounding the role of federal administrators in thwarting Brown. Simultaneously, Plessy’s resilience in the administrative realm underscores the ongoing need to unearth such regimes, to better assess agencies’ role in establishing the constitutional principles that actually govern us — that is, in determining the effective Constitution.

Keywords: equal protection, agencies, segregation, public housing

Suggested Citation

Milligan, Joy, Plessy Preserved: Agencies and the Effective Constitution (December 16, 2019). 129 Yale L.J. 924 (2020). Available at SSRN: https://ssrn.com/abstract=3523934

Joy Milligan (Contact Author)

University of California, Berkeley, School of Law ( email )

Berkeley, CA 94720
United States

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