What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision FROM THE PUBLISHER
"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 quality 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." "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."--BOOK JACKET.
SYNOPSIS
Monday morning Chief Justices explain how they would have written the 1954 decision knowing what they know now about the subsequent history of the country and the progress of race relations in the past half century. Their results were staged at an American Association of Law Schools meeting in January 2000. Some concur, some dissent. A critical introduction to the original ruling gets everyone started on the same page.
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FROM THE CRITICS
Booklist
"An excellent overview of the Brown decision that will appeal to all readers."
Randall Kennedy
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.
Library Journal
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
ﾽA stimulating debate of a great caseﾽ
Kirkus Reviews
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.
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