The Age of Entitlement: America Since the Sixties

by Christopher Caldwell

The justices ignored the subject to which they had devoted most of their deliberations: whether the Fourteenth Amendment—drafted in the wake of the Civil War to guarantee “equal protection of the laws”—had intended to permit segregated schools. Instead they asked whether the doctrine of “separate but equal,” used to justify school segregation, was possible in practice. It may surprise readers of a later generation to discover that the justices believed it was possible, not just in cherry-picked cases taken from model schools but in the actual schools that the National Association for the Advancement of Colored People (NAACP) had chosen to argue over. The justices noted findings “that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other ‘tangible’ factors.” They nonetheless repudiated the separate-but-equal doctrine for primary schools on the grounds that, because of “intangible considerations” and “qualities which are incapable of objective measurement,” segregation “is usually interpreted as denoting the inferiority of the Negro group.” Even many ardent opponents of segregation were troubled by Brown’s project to rewrite the Constitution on the authority of vague pronouncements about the way things are “usually interpreted.” In an article published at the end of 1959, Harvard Law School professor Herbert Wechsler described Brown as “an opinion which is oft...