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

By Jack M. Balkin | Go to book overview

Ackerman, J., concurring.

Four score and six years ago, our fathers struggled to find meaning in a bloody war that took 600,000 lives, tearing apart families, friends, and the nation itself. With the solemn ratification of the Fourteenth Amendment, America chose the revolutionary path of free and equal national citizenship. We consider today how far we have come, and where we must go, if we are to remain faithful to this great commitment.

Before the Civil War, this Court systematically read the Constitution in favor of slavery. It showed no patience with free states that refused to cooperate with the return of fugitive slaves to their condition of bondage.1 Going further, our Dred Scott decision declared that free blacks could never become citizens of the United States.2 This was a white man's country, forever.

As schoolchildren, we are all taught President Lincoln's Gettysburg Address. But at the end of the Civil War, the nation hesitated before broadening its commitment to government of the people, by the people, and for the people. The Thirteenth Amendment, enacted in 1865, abolished slavery, but it did not overrule Dred Scott. Blacks were no longer slaves, but they remained aliens amongst us.

And aliens they should remain, argued President Andrew Johnson, who took Lincoln's place after an assassin's bullet put him in the White House in 1865. Vetoing Congress's proposed civil rights act and freedman's bureau bill, Johnson rejected the Republicans' vision of a strong national government dedicated to the affirmative protection of free and equal citizens. The Republican Congress responded with the Fourteenth Amendment, which served as the party's platform for the crucial elections of 1866.

Rarely has a fundamental issue been the subject of such profound popular debate. In an unprecedented act, President Johnson left the

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