Academic journal article Journal of Appellate Practice and Process

Reflections on Brown

Academic journal article Journal of Appellate Practice and Process

Reflections on Brown

Article excerpt

We celebrate the anniversary of a great moment in our legal history. Fifty years ago, the Supreme Court changed our law bearing on race relations. (1) It did not, however, directly change the society that had made that law, nor did it much alter the behavior of those who were governed by it. It is important to keep that distinction in mind.

Brown I marked only the beginning of the end of de jure segregation, the despicable legal vestige of slavery. In celebrating that moment, we need to remember that the primary subject of the Court's decision, and the primary target of the lawyers who brought the case, was de jure segregation. Equality of educational opportunity, an objective we are still very far from attaining, was a secondary and distant aim. Those who see the subsequent history of public education as a defeat for the Court (2) were hoping for more than the Court supposed in 1954 that it could effect, and indeed more than it could effect then or now.

Racial integration, even to the limited extent that we have achieved it, has been perhaps America's greatest achievement as a nation. You can talk about military victories or scientific discoveries and inventions, and you may compare them favorably if you like to those of the Greeks or of the Romans or other empires, or of other extraordinary cultures. But we ought take greater pride in our recognition of the equal rights at law of citizens without regard for color. It is a deplorably universal human trait to subordinate and disdain others different from ourselves. That trait has long blighted the human condition around the world. Our laws no longer express, and even reject, that destructive trait. Similar changes have since occurred elsewhere, but to the extent that this is so, the American example has provided a critical element--the belief that such a deliberate change in a shared culture is possible.

The Court was in 1954 speaking for a cause already in accelerating motion. As we salute its role we should surely give credit to many others. We ought begin with a salute to Thomas Jefferson and his colleagues who wrote the Declaration of Independence. It has, I regret, become the fashion to condemn Jefferson and others of his contemporaries for their failures to emancipate their slaves and for the timidity of their opinions on racial issues in the late stages of their lives.3 The politically correct denunciation of these immortals reflects another widely shared human failing that prevents us from seeing the world as others at different times and places have seen it. My late friend Leon Higginbotham, an African American, had it right in saying that:

   the unsophisticated might argue that the Declaration of
   Independence had no ultimate impact of significance in
   eradicating slavery or diminishing racial discrimination.
   Yet in the corridors of history, there is a direct nexus
   between the egalitarian words uttered, even if not yet
   meant, and many of the changes that later took place.

   The irony of the unfulfilled American dream of equality is
   that of all those in the long line of dreamers who have
   sought the ultimately just society, none had to seek out
   alien sources for moral authority. They had only to say to
   the American people: fulfill the largest promise in your first
   statement as a nation. (4)

If Jefferson had personal failings, that is not a reason to deny him his place in the "long line of dreamers." His words, whatever his anxieties, were among those animating the lawyers of the National Association for the Advancement of Colored People who sustained the legal pressure on the institutions of Jim Crow.

We should also give credit to the early frontiersmen who grew up in the early nineteenth century on the western slopes of the Appalachians to become the first American nationalists and the most ardent advocates of communitarian democracy. Equal Rights was the name they gave to their demands. …

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