The Politics of Law: A Progressive Critique

By David Kairys | Go to book overview

ALAN FREEMAN


13
ANTIDISCRIMINATION LAW FROM 1954 TO 1989: UNCERTAINTY, CONTRADICTION, RATIONALIZATION, DENIAL

Alan Freeman, to whom this volume is dedicated, died after a long illness in 1995. This is a shortened version of his essay in the second edition.--Ed.

IT took thirty-three years to go from the promise of the Emancipation Proclamation in 1863 to the bleak reality of "separate but equal" endorsed by Plessy v. Ferguson in 1896. In the second half of the twentieth century, it took about the same time, thirty-five years, to go from the glowing promise of Brown v. Board of Education in 1954 to the "Civil Rights Cases" of 1989 that enshrined the principle of "Unequal but irrelevant."1

This development is not the product of recent historical whimsy, but is rather firmly rooted in the contradictory character of antidiscrimination law, the agenda of which was constrained from the outset by abstract principles of formal equality that would surely reassert themselves in time. It is sadly ironic that law, which offered for a time a promise of liberation from America's historic reality of caste-based oppression, and did secure some rights of equality, has also served to legitimize the persistence of rampant, racially identifiable inequality. To understand how that happened, one must look to opinions of the U.S. Supreme Court, a principal source for discovering the meaning of "civil rights."

That Court looms large in our culture. We look to its pronouncements not just for the answers to particular questions of law, but for

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