BLAB + Siegel (and the Rosenberg thesis)

Anonymous

I am preparing to teach my fall Fourteenth Amendment class by going through the new edition of Processes of Constitutional Decisionmaking, the constitutional law casebook by Brest, Levinson, Balkin, Amar and, in the latest edition, Reva Siegel. This is hands down my favorite casebook (although I use Sullivan-Gunther for Conlaw I). It is a constitutional epicure’s delight, the conlaw equivalent of a five course meal at a Michelin three star restaurant.

In saying this, I am obviously not setting any records for moral courage, given that several BLAB authors contribute to this blog. Indeed, perhaps this blog can be viewed as a sort of extension of the casebook.

There are many discussions one could have based on the casebook, but I was somewhat jarred by the note that follows Brown v. Board of Education on Gerry Rosenberg’s 1991 book The Hollow Hope. The Rosenberg thesis was that courts cannot by themselves cause major social change and thus Brown was not a significant causal agent in the civil rights movement. These were fighting words, both when Rosenberg published them in 1991 and now.

As I recall, Rosenberg’s argument had two parts. As recounted in the casebook, the first part argued that “real change did not come until the political branches joined the desegregation effort and Congress enacted the Civil Rights Act of 1964.” This part of Rosenberg’s argument was based on the fact, well-known long before the book was published, that a very low number of black children were in integrated classrooms even ten years after Brown. Second, and more controversially, Rosenberg tried to assess Brown’s indirect impact on the civil rights movement and, as the casebook notes, was quite skeptical.

I was predisposed toward accepting Rosenberg’s argument when it was published due to some research I had done on the history of the civil rights movement. This research made me question the impact of Brown. In particular, I had read David Garrow’s 1986 biography of Martin Luther King, Jr. At one point, Garrow quotes Al Raby, one of King’s allies in his 1966 effort to desegregate various institutions in Chicago:

“I don’t see that the judicial process has really helped the Negro. . . .The same process, the process of legal opinion, got us twelve years ago a decision of the United States Supreme Court that we would have integrated schools, that segregation would be done away with. And the result of that legal opinion twelve years later is largely insignificant.” (Bearing the Cross, p. 522)

It’s clear from Garrow’s work and the work of others that Brown was culturally significant to the civil rights movement. For example, its anniversary was celebrated in some way in most years following the decision. But it is also clear that Brown’s practical value was contested, even in the 1960s. I was all the more puzzled, therefore, when Garrow turned out to be one of Rosenberg’s critics.

The casebook fairly reports that Rosenberg had numerous critics. One of the main lines of criticism was the defense of Brown as “culturally significant” and “symbolic.” These criticisms have always struck me as beside the point. If it were widely agreed that the main significance of Brown was symbolic, it would hardly have been necessary for Rosenberg to write his book in the first place. Rosenberg’s book was controversial because it attacked the ideology of cause lawyering, an ideology that gives courts a practical (not just symbolic) role in major social change. This ideology was still powerful in the 1990s, as Rosenberg discovered when he went to various law schools to defend his thesis. However, no one could contest the first part of Rosenberg’s argument, Brown’s very limited direct impact. In fact, the casebook goes on to amply support this point in the next few pages following the Rosenberg note. The main battle ground was over the more difficult question of indirect impact, of influence. But if we say we are interested in the general causal factors behind the civil rights movement as a whole, there is ample evidence that Christian moral beliefs played a far greater role than the legal principles exemplified in Brown.
Posted 10:44 PM by Anonymous [link]