Justice, for a day. Balkin's concept is so brilliantly obvious that
it's amazing no one's tried it before: He's snared nine prominent
legal academics, given them a politically juicy case ("Brown v.
Board of Education", which declared school segregation
unconstitutional), limited them to the materials available in 1954,
and told them to come up with the opinions they would have produced
if they'd been members of the Court. The resulting pastiche is, for
the most part, invigorating. Freed by the anachronism of
mid-century role-playing, the eminent professors who write here are
forced actually to "write". The three judges from Yale-Balkin,
former Solicitor General Drew Days, and media hound Bruce
Ackerman-concur and form the plurality. Their opinions, commonly
rooted in a revival of the "citizenship" and "privileges and
immunities" clauses of the 14th Amendment, are very much Yale
opinions: brilliant, subtle, technically masterful, and totally
divorced from reality. The old-line liberals-Frank Michelman. John
Hart Ely, and feminist Catharine MacKinnon-take a different
approach: they skip over legal niceties and resort to overarching
"principles," whether of equal membership in the civil community,
anti-subordination, or the simple conviction that the "separate but
equal" rationale of "Plessy v. Ferguson "is wrong. The last three
stray furthest from the opinion of the Court. Michael McConnell
strives to locate an intent to desegregate among the ratifiers of
the 14th Amendment themselves, but his historical approach
ultimately feels forced, a case of ideology shoved before reason.
Cass Sunstein, to general embarrassment, tries to revive the
concept of substantive due process. But it's Derrick Bell, the sole
dissenter, who provides the real fireworks. Bell, who supervised
the NAACP's school desegregation cases for five years, identifies
"Brown "as a dead end, a piece of conceptual wallpaper that
overestimates the power of law and understates the depth and
pervasiveness of racism. His solution sounds more realistic than
anything the rest of the judiciary has come up with. Passionate,
intelligent, accessible, and eloquent. If only the real court would
follow suit. (Kirkus Reviews)
"A stimulating debate of a great case."
--Library Journal
"Balkan offers his own assessment in a critical introduction and
the iconic impact of "Brown,""
--"Black Issues Book Review"
"Balkin persuasively argues that the courts play a vital role in
tempering the nation's political and legal mechanisms."
--"Journal of the West"
"Passionate, intelligent, accessible, and eloquent. If only the
real court would follow suit."
--Kirkus, Starred Review
"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
"A critical introduction to the original ruling."
-- "Reference & Research Book News"
"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 the50th 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 Brown, while disagreeing heatedly about the
proper role of the courts in promoting civil equality and civil
rights.
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.
General
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