What Brown v. Board of Education Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision (New York University, edited with an introduction by Jack M. Balkin, 2002) is a rendering by nine law professors of the opinions they would have written in 1954 and 1955 if they had been the Supreme Court justices who decided Brown and related cases. Yale law professor Jack M. Balkin fairly describes the historical context of Brown, and his contributors declare their major premises in an appendix.

Balkin acknowledges that Brown has been no success story, writing, "the United States has been in a period of resegregation for some time now." He also acknowledges the finding of University of Chicago law professor Gerald Rosenberg that there is no evidence in contemporary polls and media coverage that Brown "pressed political elites . . . legitimized the grievances of blacks, and fired blacks up to act," and that of Professor Michael Klarman of the University of Virginia law school, that Brown’s major effect was to crystallize "Southern white resistance to racial change."

Although the contributors run the gamut from the feminist law professor Catherine MacKinnon to Michael McConnell, President Bush’s nominee to the Tenth Circuit Court of Appeals, the group is united in that there is not a legal realist, gradualist, or empiricist in the lot of them. To all the contributors, constitutional law is a branch of moral philosophy.

Balkin, for example, declares, "we cannot preserve distinctions between social, political, and civil equality" and should construe the Fourteenth Amendment to the Constitution in ways that fulfill its framers’ "best aspirations rather than chaining us to their worst fears." In other words, he would erase the distinctions between state and culture, and make compulsory a partial view of human nature, assuming no dark side to normal human behavior, rather than a Madisonian one. Balkin’s remedy would compel states to implement busing, equalization of wealth between school districts, and compensatory spending, a view similar to that espoused by Bruce Ackerman, also of Yale law school. Balkin and Ackerman’s Yale colleague Drew Days, while rejecting judicial reliance on social-science evidence, finds that the amendment intended to erect "an aristocracy of talent and achievement." Harvard law school’s Frank Michelman finds that the amendment requires not merely a rational basis for legislation—which is all that Aristotle’s definition of the corrective justice in the charge of the courts would demand—but rather imposition by the courts of "equality of membership in the civil community."

John Hart Ely of the University of Miami would declare unconstitutional the segregation statutes at issue in Brown on the conventional grounds that they were designed to stigmatize a particular group of people. His restrained remedy would explicitly allow academic "tracking" policies and academically selective schools, both of which were casualties of Brown in practice. University of Chicago professor Cass Sunstein’s view is similar.

McConnell makes a strained argument based on original intent, conflating simple and constitutional majorities and the actions of different Congresses at different time periods, overlooking the fact that there was no large majority for Reconstruction until after the 1866 congressional elections; he too invokes "the higher law of our Constitution." The existence of even a constitutional majority for school desegregation after 1866 scarcely establishes that those who framed the Fourteenth Amendment prior to the 1866 election viewed it as proscribing school segregation.

MacKinnon at least is explicit; she takes violent issue with Aristotle’s view of corrective justice as the only function of courts, claiming that it "ratifies legal categories that are hand in glove with social inequalities." For her, the touchstone of judge-made law, as well as legislation, is "social equality."

Derrick Bell of New York University law school, the lone dissenter to the majority opinion, urges that the right decision would have been a decree enforcing Plessy v. Ferguson (1892) by requiring equal spending between school districts and proportional representation of blacks on school boards. Bell concludes that this would be "the only way to avoid a generation or more of strife over an ideal [of integration] that, while worthwhile, will not achieve . . . effective education." Bell’s rueful postscript acknowledges that this conclusion is one to which he came only after personally engaging in twenty years of "racial balance" litigation.

It is worth remembering that there were once law professors who were wise before a legal decision’s repercussions were evident, not only after four decades had passed. In 1958, former U.S. Attorney General Edward Levi, then teaching at the University of Chicago, declared: "There is a certain protection in taking a legal position, if one must do so, in a noncontroversial area, that is the best place to be, and if it turns out to be controversial at least to take a position based on the law pure and simple." And in 1965: "It is possible that the Brown case should have been decided with the same result but with less of an immediate leap and on the partial basis of an old and accepted theory." Levi was right.

The Brown decision acknowledged that the three Southern states before the Court—Delaware, Virginia, and South Carolina—had been making frantic efforts to equalize education spending. The second Brown decision in 1955 noted that these efforts had been suspended pending the Court’s decree in Brown, and that condition continued in the ten years of "massive resistance" that followed the Brown decision. Moreover, it would have been easy for the Court in 1954 to avoid a decision lacking precedent; Judge Seitz in Delaware had shown the way by finding the schools unequal in financial support and ordering that black students be admitted to white schools until equality was achieved. The Kansas case, as MacKinnon shows, was the only case in which there was equal spending, but it was all but moot and not adversarial. The defendants had not defended segregation beyond the trial court, and the Supreme Court could have disposed of it on that basis. The issue undoubtedly would have returned to the Court, but in a much-changed setting: the financial pressure on the South might by then have led to congressional action containing both funding and more limited mandates.

This book, though intended as a celebration of Brown and judicial activism by its editor, the most activist of its contributors, bears on its cover a picture of the 1963 March on Washington. That act of self-help and respect for the political process, and not Brown, led to truly worthwhile gains for blacks, the 1964 and 1965 Civil Rights Acts. These enactments carried few costs; by contrast, what was lost in the wake of Brown was former justice Oliver Wendell Holmes’s vision of a Constitution "made for people of different views" and fostering reasoned political adjustment and not fanaticism.

This review appeared in the Winter 2003 issue of American Outlook.

Opinions expressed do not necessarily reflect those of the Hudson Institute.

George W. Liebmann is an attorney in Baltimore and the author of several books, including Six Lost Leaders: Prophets of Civil Society (Rowman & Littlefield, 2001), and Solving Problems Without Large Government: Devolution, Fairness and Equality (Praeger, 2000).

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