Brown v. Board of Education (1954), the famous decision of the Warren Court which held that racial segregation in the state public schools violated the 14th Amendment’s guarantee of the “equal protection” of the laws, turns 50 on May 17, 2004.  The inevitable celebrations of the decision in the nation’s law reviews and popular media will underscore its landmark character and will generally hail it as a triumph of enlightened constitutional jurisprudence.  Insofar as Brown contributed to the emerging national goal in the 20th century of removing racial stigma and lead to a recognition that all ought to enjoy equality of opportunity—and, to an undeniable extent, it did—the decision deserves the praise that will be heaped upon it.  Brown has its tragic side, however, and much of that is likely to be ignored in the expected paeans.  To be fair, some articles have appeared in such august magazines as the ABA Journal, the profession’s leading monthly, lamenting that Brown and its progeny could not assure racial integration in the nation’s public schools and that, in our urban centers, at least, because of the white flight to the suburbs that Brown inadvertently encouraged, minorities still make up the majority in the public schools.  Brown may have successfully led to a change in the culture, but, in the end, it did little to accomplish its assimilationist goal in many of the nation’s schools.

The real, often overlooked, tragedy of Brown, though, is that it marked the beginning of the ascendancy of the jurisprudence of a “living Constitution,” one that the federal courts would proceed to remake, the better to accord with judges’ policy preferences.  Two of Chief Justice Warren’s orotund pronouncements foretold the tale.

“We cannot turn the clock back to 1868 when the [14th] Amendment was adopted,” said the new Chief Justice, dismissing the previously dominant school that interpreted the Constitution according to the manner in which it was understood at the time it was framed.  This was, at best, a noble lie, because objective scholarship has nicely demonstrated that, at the time of the 14th Amendment, the “equal protection” language invoked in Brown was understood only to guarantee that blacks and whites were to enjoy the same property and contract rights and that the amendment had nothing to do with public schools (there were few at the time) or with a host of other activities conducted at the state and local levels that the Constitution had always been understood to leave free from federal interference.

“To separate [black children] of similar ages and qualifications solely because of their race,” stated Warren, “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”  To support this assertion, the Supreme Court cited not law but the debatable work of sociologists and social psychologists and, thus, created a precedent for future justices to rely on social science, or even allegedly enlightened opinion from other countries, to impose their favored public policies on the rest of us.  The latest instances, of course, are Lawrence and Garner v. Texas (2003), in which Justice Anthony Kennedy determined that the 14th Amendment prohibits criminal punishment of consensual homosexual acts by referring not to the history of the amendment but to current practices in the European Community, and Grutter v. Bollinger (2003), in which Justice Sandra Day O’Connor declared that, for the next 25 years at least, state universities could continue to discriminate by race in the interest of gaining the alleged psychological benefits of “diversity.”

Brown may have done some good, and the latest scholarship on the case suggests that it struck a blow in suggesting that this was a freer nation than our competitors in the Cold War of the 1950’s and 60’s.  By permitting courts a freer hand in making law and by stifling the traditional discretion of the states and localities, however, Brown accelerated an erosion of democracy.  “Government by Judiciary,” as one critic of Brown called it, might occasionally have fought injustice but at the price, perhaps, of ending popular sovereignty, the actual goal of the Constitution.