Ackerman's brown

Yale Law Journal

Volumn 123, Issue 8, 2014, Pages 3064-3075

  Kennedy, Randall L ^a,b  

^a PRINCETON UNIVERSITY   (United States)

^b YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84902839539     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (37)

1. Bruce Ackerman, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION (2014).
2. 347 U.S. 483 (1954)
3. 347 U.S. 497 (1954). The disputes resolved by Brown arose in states and were decided by application of the Fourteenth Amendment. The dispute resolved by Bolling arose in the District of Columbia, a federal jurisdiction rather than a state, and was decided by application of the Fifth Amendment. Although the cases are separate and involved somewhat different analyses, I shall refer to them as one, under the rubric of Brown, unless I indicate differently in the pages that follow.
4. Ackerman, supra note 1, at 133.
5. Brown, 347 U.S. at 495.
6. James T. Patterson, BROWN V. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY 68 (2001) (emphasis added).
7. 163 U.S. 537 (1896).
8. Id. at 551.
9. Lum v. Rice, 275 U.S. 78 (1927). In a unanimous ruling written by Chief Justice William Howard Taft, the Supreme Court upheld the judgment of the Mississippi Supreme Court that people of Chinese ancestry could be assigned to schools reserved to "colored" students under the state law governing racial segregation in public schooling. The Court evinced no disquiet whatsoever with racial segregation. Justices Oliver Wendell Holmes, Jr., and Louis Brandeis were among those who voted to affirm that judgment.
10. Brown, 347 U.S. at 494.
11. 347 U.S. 497, 500 (1954).
12. The writing that brings out this point most strikingly is the single best article written thus far about the unconstitutionality of racial segregation, Charles L. Black, Jr.'s justly celebrated The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421 (1960).
13. Plessy v. Ferguson, 163 U.S. 537, 560 (1896).
14. Id. at 557.
15. Ackerman, supra note 1, at 317. Elsewhere Professor Ackerman writes that "there is great wisdom in Warren's opinion," id. at 128, that Brown "marks the greatest moment in the history of the Court," id., that the Court displayed "great effort of constitutional leadership in Brown," id. at 322, that Brown represented the Warren Court's "greatest success in judicial leadership," id. at 324, and that the idea voiced in the Brown opinion constituted a "great jurisprudential theme," id. at 338.
16. The Emancipation Proclamation freed slaves only in jurisdictions in rebellion against the United States. It left unaffected some eight hundred thousand slaves. It did not free those held in bondage in the four slave states that remained in the Union-Missouri (the locus, ironically, of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)), Delaware, Kentucky, and Maryland. Richard Hofstadter famously quipped that the Emancipation Proclamation displayed all of the "moral grandeur of a bill of lading." RICHARD HOFSTADTER, THE AMERICAN POLITICAL TRADITION 131 (1948). On the other hand, the Emancipation Proclamation did free over three million slaves, making it-in the words of Charles and Mary Beard-"the most stupendous act of sequestration in the history of Anglo Saxon jurisprudence." CHARLES A. BEARD & MARY R. BEARD, THE RISE OF AMERICAN CIVILIZATION 100 (1927).
17. Wendell Phillips, for example, condemned the Fourteenth Amendment as "a fatal and total surrender." ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 255 (1988). Phillips was referring to Section Two of the Fourteenth Amendment, which provides for a reduction in congressional representation in proportion to the number of male citizens denied suffrage: Representatives shall be apportioned among the several States according to their respective numbers.... But when the right to vote at any election for the choice of electors ... is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged ... the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. U.S. CONST. amend. XIV, § 2.
18. William Gillette, THE RIGHT TO VOTE: POLITICS AND PASSAGE OF THE FIFTEENTH AMENDMENT 25 (1965)
19. Alexander Keyssar, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 93-104 (2000).
20. Ackerman, supra note 1, at 240.
21. Ackerman Id. at 242.
22. Ackerman Id. at 298.
23. Brown v. Board of Educ., 349 U.S. 294 (1955).
24. Id. at 300.
25. Id. at 301.
26. Gayle v. Browder, 352 U.S. 903 (1956); Holmes v. Atlanta, 350 U.S. 879 (1955); Mayor & City Council of Baltimore v. Dawson, 350 U.S. 877 (1955).
27. Ackerman, supra note 1, at 137.
28. Ackerman. Id. at 133.
29. Ackerman. Id. at 317.
30. Ackerman. Id. at 134.
31. PRESIDENT'S COMM. ON CIVIL RIGHTS, TO SECURE THESE RIGHTS (1947).
32. Timothy N. Thurber, THE POLITICS OF EQUALITY: HUBERT H. HUMPHREY AND THE AFRICAN AMERICAN FREEDOM STRUGGLE 62 (1999) ("There will be no hedging-no watering down-of the instruments of the civil rights program. To those who say we are rushing this issue of civil rights-I say to them, we are 172 years late! To those who say that this bill of rights program is an infringement of states' rights, I say this-the time has arrived for the Democratic party to get out of the shadow of states' rights and walk forthrightly into the bright sunshine of human rights." (quoting Mayor Hubert Humphrey, Address at the Democratic National Convention (July 14, 1948))).
33. Jack M. Balkin, Brown as Icon, in WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID 3, 4 (Jack M. Balkin ed., 2001) ("No federal judicial nominee and no mainstream national politician today would dare suggest that Brown was wrongly decided.");
34. Michael J. Klarman, Brown v. Board of Education: Facts and Political Correctness, 80 VA. L. REV. 185 (1994)
35. Brad Snyder, How the Conservatives Canonized Brown v. Board of Education, 52 RUTGERS L. REV. 383 (2000).
36. Ackerman, supra note 1, at 335.
37. Ackerman Id. at 336.