Home > A lackluster golden anniversary
INTERACT (Commentary and Personal Essay)
Racial domination may no longer be the law of the land,
but that doesn’t mean social practices have changed
completely in the last half-century.
Written by Danielle Allen / Chicago
The question, "Where are we 50 years after Brown v.
Board of Education?" carries a note of despair.
We know where we are: Northern public schools have more
segregated than they have ever been and are more
segregated than their Southern counterparts, African
Americans have very high dropout rates and, worse
still, a damaging drug culture and mind-numbingly high
incarceration rates. We have not achieved a racially
integrated democracy, even if some African-Americans
hold positions of significant power.
The question, "Where are we 50 years after Brown v.
Board of Education," frequently inspires the answer:
"Tired."
We have good reason to feel that the mountain is
insurmountable. I’d like to remind us of those reasons,
for they may help us see where we are, exactly, on the
mountain, and where we are going, and thereby help us
rally our energies again.
The question of what the Brown decision was really
about opens out to a dizzying set of options. Was it
about integration? Was it about public education? Was
it about social equality? Was it about democratic law?
Sometimes we judge it on one ground; sometimes, on
another. In truth, Brown addressed all of these issues,
because the case was ultimately about democratic
constitutions and what it takes to change them.
A constitution is more than paper; it is a plan for
constituting political rights and organizing
citizenship, for determining who has access to the
powers of collective decision-making that are used to
negotiate a community’s economic and social relations.
Such plans always involve custom as well as law.
Indeed, a constitution need not even be written out as
such. It may, as in Britain, rest on laws and customs
that accrete over time to establish a particular
distribution of political power through institutions.
Or it may, as in ancient Athens, consist of laws and
customs that determine who has access to the
instruments of political power.
As it happens, the U.S. Constitution of 1787-88 by no
means even then contained the whole plan for
determining political rights and powers. It left the
regulation of voting rights to the states. One can’t
claim to understand the constitution (with a small "c")
of the United States without looking beyond the
document that bears that title not to context
generally, but very specifically, (a) to state laws and
(b) to customary habits of citizenship (unspoken norms
for interaction that constrain who can speak where in
public and how). Both state laws and habits of
citizenship help route the basic circuitry of political
power.
The Constitution drafted and adopted in 1787-88
attached itself to cultural habits for organizing
power-relations among the colonies’ inhabitants that
had been under construction since the early 17th
century. In 1630 the Virginia Assembly had, among its
earliest laws, decreed that "Hugh David be soundly
whipped, before an assembly of negroes and others for
abusing himself to the dishonor of God and shame of
Christians, by defiling his body in lying with a negro;
which fault he is to acknowledge next Sabbath day." In
1640 they required "Robert Sweet to do penance in
church according to laws of England, for getting a
negro woman with child and the woman whipt." Customs of
racial domination and a customary illusion that racial
purity existed and was a proper object of the law were,
on this continent, born together with written law.
Over nearly two centuries, white inhabitants of the
colonies grew accustomed to maintaining key public
spaces as their exclusive possession; for the sake of
preserving life and stability, black and indigenous
inhabitants, all in all, grew accustomed to acquiescing
to such norms and to the acts of violence that enforced
them. Each set of customs, exclusionary on the one hand
and on the other acquiescent, constituted the practical
rules of democratic citizenship for a set of the new
country’s inhabitants. Together the two sets of rules
guided residents of the new United States into the
diverse forms of behavior that secured stable (though
undemocratic) public spaces.
These customary rules that routed power were as much a
part of the new constitution written in 1787-88 as was
the newly conceived and justly privileged text. Those
customary rules limited the text, as we all know, in
places like the "three-fifths compromise" clause that
not only wrote something less than personhood into the
Constitution for non-whites but that also, more
importantly, inflated the power of Southern whites
relative to Northern whites.
The Constitution did not and could not answer all
questions about how power would be organized; state
laws and habits of interaction filled the gaps. Our
constitution with a small "c," like all constitutions,
has always consisted of a complex, intricate web of law
and custom.
When the country fought the Civil War and shortly
thereafter passed the 13th, 14th, and 15th amendments,
it undertook the project of undoing a racial
constitution that had been settling into place for at
least 300 years (since 1562 when Britain entered into
the slave trade). A constitution 300 years a-building
needs at least as long for its rebuilding. Now, 50
years after Brown, we are only 150 years into that
process of remaking the complicated, intricate web of
law and custom that put race at the center of our
political experience. We probably have at least another
150 years to go.
I recommend that those of us who feel tired return to
the transcripts of the oral arguments in Brown
(recently reenacted at the Goodman Theater in Chicago
and to be aired on Illinois’ PBS affiliate on May
17th), where one finds a tautness on both sides that
arises from the lawyers’ intuitive knowledge that they
were arguing about the entirety of a constitution.
These oral arguments are more powerful, more
significant documents, in my view, than the opinion
itself.
One finds inspiration in Thurgood Marshall’s
impassioned arguments in those transcripts. He had much
farther to go than we do. We ought to make his energy
our own and turn to resurrecting public education for
everyone and to confronting the evils of the drug trade
as well as the inequities and hypocrisies of our
current responses to it. As Marshall must have
understood, the work still ahead is for our children’s
children’s children.
The writer is an INTHEFRAY.COM Contributor. Danielle
Allen is a professor of classics, political science,
and the committee on social thought at the University
of Chicago. A MacArthur Fellow, she is the incoming
dean of the university’s humanities division. Her
forthcoming Talking to Strangers: Anxieties of
citizenship since Brown v. Board of Education will be
released by the University of Chicago Press in August.