The Age of Entitlement: America Since the Sixties

by Christopher Caldwell

The “heart of the matter” with segregation was not equality but the conflicts it created with the implicit First Amendment right of freedom of association. These conflicts were not easily solved, Wechsler showed: If the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant. . . . Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail? Wechsler hoped to find such a basis. But in constitutional terms, the decision was arbitrary and open-ended. Brown granted the government the authority to put certain public bodies under surveillance for racism. Since the damage it aimed to mend consisted of “intangible considerations,” there was no obvious limit to this surveillance. And once the Civil Rights Act introduced into the private sector this assumption that all separation was prima facie evidence of inequality, desegregation implied a revocation of the old freedom of association altogether.