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

Bell, J., dissenting.

I dissent today from the majority's decision in these cases because the detestable segregation in the public schools that the majority finds unconstitutional is a manifestation of the evil of racism the depths and pervasiveness of which this Court fails even to acknowledge, much less address and attempt to correct.

For reasons that I will explain in some detail, I cannot join in a decision that, while serving well the nation's foreign policy and domestic concerns, provides petitioners with no more than a semblance of the racial equality that they and theirs have sought for so long. The Court's long-overdue findings that Negroes are harmed by racial segregation is, regrettably, unaccompanied by an understanding of the economic, political, and psychological advantages whites gain because of that harm.

With some difficulty, the Court finds that Plessy v. Ferguson, 163 U.S. 537 (1896), cannot now serve as constitutional justification for segregated schools. Plessy, though, is only fortuitously a legal precedent. In actuality, it is a judicial affirmation of an unwritten but no less clearly understood social compact that, older than the Constitution, was incorporated into that document, and has been continually affirmed. Chief Justice Roger Taney's observation in Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857), that Negroes “had no rights that the white man was bound to respect” was excessive even for its time. The essence of the racial compact, however, is that whites, whatever their status, can view themselves as entitled to privileges and priorities over blacks. Indeed, beyond an appropriate pride in ethnic heritage, this racial compact provides the definitive definition of what it means to be white in America.

Without recognizing and attempting to dismantle this racial compact and in particular the indirect promises made to whites and the surrender of opportunities whites made to gain these racial privileges, today's decision, while viewed as a triumph by Negro petitioners and the class

-185-

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