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
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Ely, J., concurring in the judgment (except as to remedy).

I.

A.

Defendant school boards are probably right in asserting that most of the framers and ratifiers of the Fourteenth Amendment did not expect that ratification would result in the immediate desegregation of the public schools. This is, however, of scant if any relevance to the cases before us. The “public school system” in 1868 bore essentially no resemblance to its contemporary counterpart.1 More fundamentally, the Equal Protection Clause—like the other clauses of section 1 of the Fourteenth Amendment—is among the Constitution's clearest examples of a provision whose exact content was understood not to be frozen in time. This does not make the Equal Protection Clause, any more than any other provision of the Constitution, infinitely malleable, capable of bearing any meaning that strikes this Court (or anyone else) as a good idea at the time. It is limited in application to situations of officially imposed inequality, specifically inequality that negatively affects the former slave race or other groups that can on principled grounds be regarded as relevantly analogous thereto, in that they are the victims of mindless prejudice and lack the political power to protect themselves.2

This is not the occasion to ruminate about what other groups should be protected with unusual force by the Equal Protection Clause, but this much is clear: its core concern was the protection of racial minorities, most specifically Negroes, from unequal treatment at the hands of the law, and (as its language alone would be sufficient to demonstrate) it was not intended to be tethered by any 1954 or other future attempt to guess what particular instances of inequality our 1868 forebears had at the forefront of their minds. They were accustomed to interpreting the 1789 and 1791 documents in terms of the principles they set forth rather than trying to read the minds of the founding generation for further

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