What Brown v. Board of Education Should Have Said
The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision
Published by: NYU Press
Brown v. Board of Education, the Supreme Court's landmark 1954 decision ordering the desegregation of America's public schools, is perhaps the most famous case in American constitutional law. Criticized and even openly defied when first handed down, in half a century Brown has become a venerated symbol of equality and civil rights.
Its meaning, however, remains as contested as the case is celebrated. In the decades since the original decision, constitutional interpreters of all stripes have found within it different meanings. Both supporters and opponents of affirmative action have claimed the mantle of Brown, criticizing the other side for betraying its spirit. Meanwhile, the opinion itself has often been criticized as bland and uninspiring, carefully written to avoid controversy and maintain unanimity among the Justices.
As the 50th anniversary of Brown approaches, America's schools are increasingly divided by race and class. Liberals and conservatives alike harbor profound regrets about the development of race relations since
In this volume, nine of America's top constitutional and civil rights experts have been challenged to rewrite the Brown decision as they would like it to have been written, incorporating what they now know about the subsequent history of the United States but making use of only those sources available at the time of the original decision. In addition, Jack Balkin gives a detailed introduction to the case, chronicling the history of the litigation in Brown, and explaining the current debates over its legacy.
Contributors include: Bruce Ackerman, Jack M Balkin, Derrick A. Bell, Drew S. Days, John Hart Ely, Catharine A. MacKinnon, Michael W. McConnell, Frank I Michelman, and Cass R. Sunstein.
part i : Brown v. Board of Education—ACritical Introduction
1 Brown as Icon
3 Rewriting Brown: A Guide to the Opinions
part ii : Revised Opinions in Brown v. Board of Education
• Jack M. Balkin (judgment of the Court)
• Drew S. Days III (concurring)
• Bruce Ackerman (concurring)
• Frank I. Michelman (concurring in part and concurring
in the judgment)
• John Hart Ely (concurring in the judgment except as to
• Catharine A. MacKinnon (concurring in the judgment)
• Michael W. McConnell (concurring in the judgment)
• Cass R. Sunstein (concurring in the judgment)
• Derrick A. Bell (dissenting)
"A remarkable collection of writings. The eminent scholars it features articulate with insight and passion a wide range of views. No other book better relates the Supreme Court's landmark decision of 1954 to the debates and anxieties of our own time."-Randall Kennedy,Harvard Law School
"In this thought-provoking volume, the academically distinguished ‘justices' of the ‘Balkin Court' offer competing thoughts about the role of the Supreme Court and the Constitution in overcoming racial discrimination. Complete with helpful introductory material, commentary on their opinions by each ‘justice,' and the texts of the original Brown decisions, What Brown v. Board of Education Should Have Said is a valuable source of ideas, commentary, and insights into the challenges of racial discrimination, both historical and present."-Gerald Rosenberg,Northwestern University School of Law
"Balkin persuasively argues that the courts play a vital role in tempering the nation's political and legal mechanisms."-Journal of the West
"This intriguing collection provides unique insights into the way today's constitutional theorists would go about deciding Brown v. Board of Education, and into contemporary constitutional theory more generally. It also illuminates Brown v. Board of Education itself, by bringing the insights of nearly fifty years of experience to bear on the problem the Court faced in 1954. Those interested in Brown and in constitutional theory will all benefit from thinking about what these authors have to say."-Mark Tushnet,Georgetown University Law Center
"Balkan offers his own assessment in a critical introduction and the iconic impact of Brown."-Black Issues Book Review