What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision / Edition 1

by Jack M. Balkin

Overview

Legal experts rewrite the landmark court decision

Brown v. Board of Education, the Supreme Court's landmark 1954 decision ordering the desegregation of America's public schools, is perhaps the most famous case in American constitutional law. Criticized and even openly defied when first handed down, in half a century Brown has become a venerated symbol of equality and civil rights.

Its meaning, however, remains as contested as the case is celebrated. In the decades since the original decision, constitutional interpreters of all stripes have found within it different meanings. Both supporters and opponents of affirmative action have claimed the mantle of Brown, criticizing the other side for betraying its spirit. Meanwhile, the opinion itself has often been criticized as bland and uninspiring, carefully written to avoid controversy and maintain unanimity among the Justices.

As the 50th anniversary of Brown approaches, America's schools are increasingly divided by race and class. Liberals and conservatives alike harbor profound regrets about the development of race relations since Brown, while disagreeing heatedly about the proper role of the courts in promoting civil equality and civil rights.

In this volume, nine of America's top constitutional and civil rights experts have been challenged to rewrite the Brown decision as they would like it to have been written, incorporating what they now know about the subsequent history of the United States but making use of only those sources available at the time of the original decision. In addition, Jack Balkin gives a detailed introduction to the case, chronicling the history of the litigation in Brown, and explaining the current debates over its legacy.

Contributors include: Bruce Ackerman, Jack M Balkin, Derrick A. Bell, Drew S. Days, John Hart Ely, Catharine A. MacKinnon, Michael W. McConnell, Frank I Michelman, and Cass R. Sunstein.

Product Details

ISBN-13:	9780814798904
Publisher:	New York University Press
Publication date:	09/01/2002
Pages:	257
Product dimensions:	6.00(w) x 9.00(h) x 0.61(d)

About the Author

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the Founder and Director of Yale’s Information Society Project. He is the author of numerous books, including The Cycles of Constitutional Time, and the editor of What Brown v. Board of Education Should
Have Said. He lives in Branford, Connecticut..

Table of Contents

	Preface	ix
Part I	Brown v. Board of Education--A Critical Introduction
1	Brown as Icon	3
2	The History of the Brown Litigation	29
3	Rewriting Brown: A Guide to the Opinions	44
Part II	Revised Opinions in Brown v. Board of Education
	Jack M. Balkin (judgment of the Court)	77
	Drew S. Days III (concurring)	92
	Bruce Ackerman (concurring)	100
	Frank I. Michelman (concurring in part and concurring in the judgment)	124
	John Hart Ely (concurring in the judgment except as to the remedy)	135
	Catharine A. MacKinnon (concurring in the judgment)	143
	Michael W. McConnell (concurring in the judgment)	158
	Cass R. Sunstein (concurring in the judgment)	174
	Derrick A. Bell (dissenting)	185
	Comments from the Contributors	201
Appendix A	The Supreme Court's Original Opinions in Brown I, Bolling, and Brown II
	Brown v. Board of Education (Brown I)	217
	Bolling v. Sharpe	226
	Brown v. Board of Education (Brown II)	229
Appendix B	The Constitution of the United States of America: Selected Provisions	233
	Brown v. Board of Education: A Selected Bibliography	237
	About the Contributors	243
	Table of Cases	247
	Index	251

Editorial Reviews

"This intriguing collection provides unique insights into the way today's constitutional theorists would go about deciding Brown v. Board of Education, and into contemporary constitutional theory more generally. It also illuminates Brown v. Board of Education itself, by bringing the insights of nearly fifty years of experience to bear on the problem the Court faced in 1954. Those interested in Brown and in constitutional theory will all benefit from thinking about what these authors have to say."

Mark Tushnet

"In this thought-provoking volume, the academically distinguished ‘justices' of the ‘Balkin Court' offer competing thoughts about the role of the Supreme Court and the Constitution in overcoming racial discrimination. Complete with helpful introductory material, commentary on their opinions by each ‘justice,' and the texts of the original Brown decisions, What Brown v. Board of Education Should Have Said is a valuable source of ideas, commentary, and insights into the challenges of racial discrimination, both historical and present."

Gerald Rosenberg

"Balkin persuasively argues that the courts play a vital role in tempering the nation's political and legal mechanisms."

Journal of the West

A remarkable collection of writings. The eminent scholars it features articulate with insight and passion a wide range of views. No other book better relates the Supreme Court's landmark decision of 1954 to the debates and anxieties of our own time.

Randall Kennedy

"An excellent overview of the Brown decision that will appeal to all readers."

Booklist

Yale Law School professor Balkin and a stellar list of constitutional scholars here rewrite the famous Brown v. Board of Education decision, which outlawed public school segregation. Using only materials available to the Supreme Court in 1954, the authors attempt to clarify the meaning of Brown and strengthen its principles for future generations. The book consists of three introductory chapters by Balkin explaining the history of the Brown case, theories of why it was decided, and a guide to the revised opinions. Balkin's contributors cover the range of constitutional analysis, from original intent (Michael McConnell) to judicial minimalism (Cass Sunstein), to judicial activism (Drew Days). The work concludes with the original Supreme Court opinions and comments from the contributors defending their own opinions. In all, this is a stimulating debate of a great case. For all law collections. Harry Charles, Attorney at Law, St. Louis Copyright 2001 Cahners Business Information.

Library Journal

Justice, for a day. Balkin's concept is so brilliantly obvious that it's amazing no one's tried it before: He's snared nine prominent legal academics, given them a politically juicy case (Brown v. Board of Education, which declared school segregation unconstitutional), limited them to the materials available in 1954, and told them to come up with the opinions they would have produced if they'd been members of the Court. The resulting pastiche is, for the most part, invigorating. Freed by the anachronism of mid-century role-playing, the eminent professors who write here are forced actually to write. The three judges from Yale-Balkin, former Solicitor General Drew Days, and media hound Bruce Ackerman-concur and form the plurality. Their opinions, commonly rooted in a revival of the "citizenship" and "privileges and immunities" clauses of the 14th Amendment, are very much Yale opinions: brilliant, subtle, technically masterful, and totally divorced from reality. The old-line liberals-Frank Michelman. John Hart Ely, and feminist Catharine MacKinnon-take a different approach: they skip over legal niceties and resort to overarching "principles," whether of equal membership in the civil community, anti-subordination, or the simple conviction that the "separate but equal" rationale of Plessy v. Ferguson is wrong. The last three stray furthest from the opinion of the Court. Michael McConnell strives to locate an intent to desegregate among the ratifiers of the 14th Amendment themselves, but his historical approach ultimately feels forced, a case of ideology shoved before reason. Cass Sunstein, to general embarrassment, tries to revive the concept of substantive due process. But it's Derrick Bell,the sole dissenter, who provides the real fireworks. Bell, who supervised the NAACP's school desegregation cases for five years, identifies Brown as a dead end, a piece of conceptual wallpaper that overestimates the power of law and understates the depth and pervasiveness of racism. His solution sounds more realistic than anything the rest of the judiciary has come up with. Passionate, intelligent, accessible, and eloquent. If only the real court would follow suit.

Kirkus Reviews

"Balkan offers his own assessment in a critical introduction and the iconic impact of Brown."

Black Issues Book Review