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Book Edited by Prof. Jack Balkin Reconsiders--and Rewrites--Historic Brown Decision

It sounds like a lawyerly parlor game--something the most erudite of scholars might do on a lark: Rewrite a famous Supreme Court opinion from 1954 without citing any subsequent sources or events.

Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at YLS, assembled a group of nine prominent constitutional scholars to do just this in reappraising "Brown v. Board of Education." But, according to Balkin, the conceit is a way of understanding what Brown, "this honored artifact," means for us today--not just a game.

The result is a book titled "What Brown v. Board of Education Should Have Said," published by New York University Press this year. The book features a mock Supreme Court of Bruce Ackerman, Derrick A. Bell, Drew S. Days III, John Hart Ely, Catherine A. MacKinnon, Michael W. McConnell, Frank I. Michelman, and Cass R. Sunstein--in addition to Chief Justice Balkin.

The "justices" ruled by a margin of eight to one (the original decision had been unanimous) that segregation of elementary education by the doctrine of "separate but equal" was unconstitutional. However, each contributor found very different reasoning to support his or her decision.

According to Balkin, the scholars' divergent opinions reflect the fact that "everyone loves Brown, but everyone has different beliefs about what it means." And these different interpretations can lead partisans on opposite sides of an issue to claim Brown as the foundation of their beliefs.

The question of affirmative action is one contemporary field of dispute. Opponents of affirmative action can claim that--in the spirit of Brown--they want to prohibit the government from making any distinctions based on racial categories. Proponents would counter that they advance the spirit of Brown by fighting against the historical subordination of one race to another.

The rewritten decisions in the book alternately stress anticlassification or antisubordination approaches to ending segregation. One concurring mock-justice, Michael McConnell, stresses that "The question in every case is whether the state has classified or segregated pupils according to race." Meanwhile, Balkin writes, "Our Constitution forbids the creation or perpetuation of a socially subordinate group through law." While both approaches have the same result in overturning segregation, in the hypothetical future (from a 1954 perspective) they will have very different implications for the constitutionality of affirmative action programs.

Balkin argues that a reevaluation of Brown is especially relevant now. Not only is the fiftieth anniversary of the decision approaching, but much of what the case originally stood for has been reversed in recent years. The desegregation that the decision began has in many places retreated due to later limitations. The active role that the Supreme Court asserted for itself in Brown has been adopted by a conservative Court to impose some of those limitations. Indeed, Balkin argues that the view of the Supreme Court as a heroic institution that flourished after the Brown decision is what gives the current activist Court some of its authority.

In looking back at this historic decision, Balkin writes, "the point is to rethink the meaning of America's constitutional commitment to equality in our own time."

Related Links:
Professor Jack Balkin's Homepage