The Lawfulness of the Same-Sex Marriage Decisions: Charles Black on Obergefell (original) (raw)
Related papers
Reading Charles Black Writing: "The Lawfulness of the Segregation Decisions" Revisited
2017
The year 2010 marked the fiftieth anniversary of the publication of Charles L. Black, Jr.'s "The Lawfulness of the Segregation Decisions."' Professor Black's magisterial essay on the Supreme Court's 1954-1955 decisions in Brown v. Board of Education 2 and its companion cases is, by any account, a foundational text in the scholarly literature on race and law in the United States. Black's short but searing defense of Brown introduced ideas and arguments about race, about law, and about the law of race that transformed the field. I can think of no better way to celebrate this inaugural issue of the Columbia Journal of Race and Law than to revisit "The Lawfulness of the Segregation Decisions," and to highlight the continuing significance, a half century later, of Charles Black's intellectual preoccupations and practice for the project to which the Editors of this journal have devoted its pages: the critical study of race and law. I first encountered "The Lawfulness of the Segregation Decisions" in the spring of 1980, as one of a small group of Yale Law students who had the good fortune to study with Charles Black Nash Professor of Law, Columbia Law School. Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE. L.J. 421 (1960) [hereinafter Black, Lawfulness of the Segregation Decisions]. The year 2010 is the thirtieth anniversary of another transformative moment in the history of American race law scholarship: the publication of Derrick Bell's "Brown v. Board of Education and the Interest-Convergence Dilemma." Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARv. L. REv. 518 (1980). I dedicate this Foreword to Professor Bell, with admiration, affection, and gratitude for the generosity of his example as a scholar, teacher, and mentor. 2 Brown v. Bd. of Educ., 347 U.S. 483 (1954). 2011 2 READING CHARLES BLACK WRITING law and legal thinking represent a kind of writing. 5 Even when it is not explicitly theorized, the question of how and why language matters in, and for, law is a recurring concern in Black's work. Consider, for example, in this connection, the textual strategy of Structure and Relationshjo, in which Black provocatively deploys the literary image and idea of "juristic style" as a substitute for more conventional "technicist" terminology such as "legal reasoning," "analysis," "argument" or "method" and so on. 6 A second, related point is that Professor Black's alertness to the discursive dimensions of law shaped not only how he thought about law, but the terms and techniques he used to write about it. "The Lawfulness of the Segregation Decisions" is an exemplary, and enviable, instance of Black's mastery of the elements of scholarly style. The persuasive power of his defense of Brown and its companion cases derives not only from its legal reasoning, but from its rhetorical register, or, to use another of his preferred terms, from the "modes" 7 of language use through which that reasoning is articulated and advanced.
The 1954 United States Supreme Court decision in Oliver L. Brown et.al. v. the Board of Education of Topeka (KS) et.al. 1 is perhaps one of the most discussed judgments because of its significant judicial turning points in the development of civil rights movements not only in America but also in other parts of the globe. Brown in fact dismantled the legal basis for racial segregation in schools and other public facilities in the disguise of "separate but equal' doctrine. As well as it laid the foundation for shaping future national and international policies regarding human rights. Brown confronted a vivid sense of social realities, a sense that was entirely missing from the legal culture at that time. Though Brown has always enjoyed a very high and sophisticated profile in the literatures and jurisprudence of constitutional law discussion, this article tends to find out the other side of the story; where courts' decision making was much influenced by other factors and not by merely interpretation of the normative constitutional theories. The significance of Brown decision lies in the fact that it teaches certain important positive constitutional theory. It also shows how government and political institutions influence and interact with each other, and how features of politics and institutional structure influence the creation and development of constitutional doctrine, i.e. how constitutional doctrine works and develops over time.
Neutral Principles: Rethinking the Legal History of Civil Rights, 1934-1964
Taking Herbert Wechsler's endorsement of neutral principles as a starting point, this article will examine Wechsler's engagement with the “long” civil rights movement, showing how lessons that he learned from communists in the 1930s influenced his approach to civil rights lawyering and legal process in the 1940s and beyond.18 It will build on Kenneth Mack's argument that rights-based liberalism was not the only approach to civil rights reform in the post-World War I era, nor was legal process as unresponsive to civil rights as scholars like Akhil Amar contend.19 In fact, while most scholars agree with Amar that legal process failed to come to “grips” with civil rights, Wechsler suggests the opposite is true.20 As the Warren Court's activist approach in *389 Brown faltered, Herbert Wechsler's strategic version of legal process came to the rescue, directly aiding the direct action campaigns in Mississippi and Alabama in 1964 and 1965. T
Policy Analysis - Brown v. Board of Education
From the time Abraham Lincoln declared African-Americans free in the Emancipation Proclamation until the Civil Rights Act of 1965, the Supreme Court interpreted individual protections under the Constitution in various ways. African-American citizens are exploited for their economic power during slavery, political power during Jim crow, and social mobility throughout all of U.S. history. These examples prove that people who run the United States republic have placed a badge of inferiority and second-class citizenship onto African-Americans. Therefore, when Justice Warren says, “Education plays a crucial role in training people to become members of society, and more importantly, to be citizens and the participate in civil life,” then equal opportunity must be affirmed under the protections of the U.S. Constitution and enforced universally! Social science along with progressive judges steered public policy to integrate society in a move that appealed to a diverse society while reversing previous cultural attitudes. Opponents of integration of African-Americans argue that the Courts violated States rights and freedom of contract liberalism, however, opponents do not consider social science or any viewpoints other than their own!
Keeping our eyes on the prize: Beyond Brown v. Board of Education
Journal of Applied Developmental Psychology, 2005
This volume edited by social psychologist Gina Philogène honors and evaluates the work and legacy of Kenneth B. Clark. In addition, a number of the contributors present their own work on race and its impact on culture and society. The work of Kenneth and his wife and longtime collaborator Mamie Clark is probably best known for the contribution they made over fifty years ago to the landmark Supreme Court decision Brown v. Board of Education (1954), which officially ended public school segregation. According to the editor, in addition to honoring the work of Kenneth Clark, the purpose of the book bis to bring together a number of prominent psychologists who.. . will help us articulate a dialogue on the sensitive and polemic issue of raceQ (p. 11). In the volume introduction (Chapter 1), Philogene addresses the issue of race in American as well as outlining the organization for the book. The volume is organized into 4 main sections and a conclusion, with the main sections each introduced by a different scholar: bThe Impact of Kenneth B. Clark: Then and Now,Q (introduced by Gina Philogène), bRacial Identity,Q (with an introduction by Linwood Lewis), bRacism and Its Cultural Manifestations,Q (introduced by Ferdinand Jones), and bOur Common Destiny,Q (with an introduction by Barbara Schecter).