Rights Gone Wrong: How Law Corrupts the Struggle for Equality by Richard Thompson Ford

Author:Richard Thompson Ford [Ford, Richard Thompson]
Language: eng
Format: epub, mobi
Tags: General, United States, Political Science, Social Science, Constitutional, Law, Civil Rights, Political Freedom & Security, Civil Rights - United States
ISBN: 9780374250355
Publisher: Macmillan
Published: 2011-10-25T00:00:00+00:00

When Brown was decided in 1954, many people attacked the Court’s decision for all-too-predictable reasons: they opposed racial mixing and resented the inevitable demise of Jim Crow, of which Brown was a conspicuous symbol, if not an indispensable cause. But others criticized Brown for more surprising and more respectable reasons. The most famous of the respectable critics was the eminent Columbia Law School professor and labor rights lawyer Herbert Wechsler. Wechsler was one of the nation’s most formidable legal minds: an expert in constitutional law, criminal law, and the federal courts and a technical adviser to the judges in the Nuremberg trials. He would go on to win one of the century’s most important cases involving freedom of expression, New York Times v. Sullivan, and to write the American Law Institute’s Model Penal Code, which fulfilled the ambition that its name suggests and prompted criminal law reform in dozens of states.

In 1959, Wechsler delivered an address at Harvard Law School. In it he attacked the now-familiar idea that “racial segregation is … a denial of equality” and quoted approvingly from Plessy v. Ferguson, which had established the doctrine of “separate but equal” that Brown had overturned. “Is there not a [valid] point in Plessy,” Wechsler asked, “that if ‘enforced separation stamps the colored race with a badge of inferiority’ it is solely because its members choose ‘to put that construction upon it’?” Wechsler questioned the reasoning in Brown, attacking the psychologist Kenneth Clark’s contention—central to the Court’s holding in Brown—that segregation was psychologically damaging to black children. He queried:

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