Cover image for What Brown v. Board of Education should have said : the nation's top legal experts rewrite America's landmark civil rights decision
What Brown v. Board of Education should have said : the nation's top legal experts rewrite America's landmark civil rights decision
Balkin, J. M.
Publication Information:
New York : New York University Press, [2001]

Physical Description:
xii, 257 pages ; 24 cm
Brown v. Board of Education : a critical introduction / Jack M. Balkin -- Revised opinions in Brown v. Board of Education / Jack M. Balkin, Drew S. Days, III, Bruce Ackerman, Frank I. Michelman, John Hart Ely, Catharine A. MacKinnon, Michael W. McConnell, Cass R. Sunstein, Derrick A. Bell.
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KF228.B76 W48 2001 Adult Non-Fiction Non-Fiction Area

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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 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.

Author Notes

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School

Reviews 3

Booklist Review

The landmark decision on public school desegregation is arguably the most famous case in both Constitutional and American history. While legal experts debate the meaning of the decision, what is clear is that almost 50 years after the ruling, race and class still significantly divide public schools. Balkin, a Yale law professor, gives a concise history of the Brown decision, then he functions as the chief justice of the Supreme Court, writing the lead opinion and securing from the other justices their concurring and dissenting opinions. His mock Supreme Court includes: Bruce Ackerman, Derrick Bell, Drew Days, John Hart Ely, Catharine Mackinnon, Michael McConnell, Frank Michelman, and Cass Sunstein. The exercise requires the guest-jurists to use only those cases available at the time (1954). But with the experience of hindsight and modern sensibilities, the view backward reflects the limited forward progress on race with much of the underlying concerns of the Brown decision still unanswered. An excellent overview of the Brown decision that will appeal to all readers. --Vernon Ford

Library Journal Review

Yale Law School professor Balkin and a stellar list of constitutional scholars here rewrite the famous Brown v. Board of Education decision, which outlawed public school segregation. Using only materials available to the Supreme Court in 1954, the authors attempt to clarify the meaning of Brown and strengthen its principles for future generations. The book consists of three introductory chapters by Balkin explaining the history of the Brown case, theories of why it was decided, and a guide to the revised opinions. Balkin's contributors cover the range of constitutional analysis, from original intent (Michael McConnell) to judicial minimalism (Cass Sunstein), to judicial activism (Drew Days). The work concludes with the original Supreme Court opinions and comments from the contributors defending their own opinions. In all, this is a stimulating debate of a great case. For all law collections. Harry Charles, Attorney at Law, St. Louis (c) Copyright 2010. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.

Choice Review

This interesting volume presents the history of the Brown case and includes insightful analyses of the constitutional issues involved. The volume comprises two parts, unequal in size, but both significant. In the first part, Balkin (Yale) offers a brief history of the Brown litigation. This section will be useful to students reading Brown and to teachers discussing the case. The second part consists of seven opinions' written by legal scholars representing various interpretative approaches. The seven were charged with the task of writing an opinion as if he or she were a member of the US Supreme Court in 1954. The decisions present constitutional issues in the case as well as different approaches to constitutional interpretation. For example, the interpretive approaches of Bruce Ackerman, Michael McConnell, and Catherine McKinnon differ greatly, but all three write an opinion upholding the decision. There is also a provocative opinion written by Derrick Bell, dissenting from the majority because the Court did not go far enough to bring about equality. This work is significant as a single volume demonstrating several approaches to constitutional jurisprudence. Recommended for general readers, undergraduates, graduate students, and faculty. M. Coulter Grove City College

Table of Contents

Prefacep. ix
Part I Brown v. Board of Education--A Critical IntroductionJack M. Balkin
1 Brown as Iconp. 3
2 The History of the Brown Litigationp. 29
3 Rewriting Brown: A Guide to the Opinionsp. 44
Part II Revised Opinions in Brown v. Board of Education
Jack M. Balkin (judgment of the Court)p. 77
Drew S. Days III (concurring)p. 92
Bruce Ackerman (concurring)p. 100
Frank I. Michelman (concurring in part and concurring in the judgment)p. 124
John Hart Ely (concurring in the judgment except as to the remedy)p. 135
Catharine A. MacKinnon (concurring in the judgment)p. 143
Michael W. McConnell (concurring in the judgment)p. 158
Cass R. Sunstein (concurring in the judgment)p. 174
Derrick A. Bell (dissenting)p. 185
Comments from the Contributorsp. 201
Appendix A The Supreme Court's Original Opinions in Brown I, Bolling, and Brown II
Brown v. Board of Education (Brown I)p. 217
Bolling v. Sharpep. 226
Brown v. Board of Education (Brown II)p. 229
Appendix B The Constitution of the United States of America: Selected Provisionsp. 233
Brown v. Board of Education: A Selected Bibliographyp. 237
About the Contributorsp. 243
Table of Casesp. 247
Indexp. 251