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

Comments from the Contributors

The contributors to this book were asked to give a short account of why they wrote their Brown opinion as they did, and what goals they were trying to accomplish. They were also invited to give credit where it was due for sources written after 1954, which they could not quote directly in their opinions. Here are their responses:


Bruce Ackerman

Brown is typically viewed as the shining example of a Court playing the part of moral revolutionary—proclaiming a new and better law of equal protection for the country, blazing a path toward racial redemption.

I take a different line. The true visionaries were not the Justices of the Warren Court but the Republicans of the Reconstruction Congress. Speaking for the men and women who stood by the Union during the Civil War, these Republican leaders were not sedate conservatives but revolutionary statesmen determined to set the nation on a new and sounder foundation. The Court's first task is to recapture the revolutionary character of their historical achievement and redeem its claim to enduring constitutional significance.

This would not be too tough if the world had stood still since 1868, but it has not. When the Reconstruction generation rewrote the Constitution, their brave new words gained meaning by reference to a vast set of constitutional understandings that were themselves profoundly revised over the course of the next century. In our particular case, the framers of the Fourteenth Amendment decisively sought to establish the primacy of national citizenship in our constitutional arrangements, but in doing so, they had not the slightest inkling of what American government would become over the course of the twentieth century. The Justices in Brown were in a very different situation: the Court's

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