Saturday, January 24, 2009

Blake and Hacker on The Hidden Legal Axiom at Work in Brown v. Board of Education

The Neutrality Principle: The Hidden Yet Powerful Legal Axiom at Work in Brown Versus Board of Education by William Blake, University of Texas at Austin, and Hans Hacker, Arkansas State University, Department of Political Science, appeared in Berkeley Journal of African-American Law & Policy (2006). Here's the abstract (only the abstract is posted on SSRN):
Among conservatives and liberals alike, it is currently en vogue to claim that the Supreme Court's landmark ruling in Brown v. Board of Education exemplifies the "right decision for the wrong reasons." Critics claim that the Court settled upon the correct outcome (ending application of the separate but equal doctrine in primary and secondary public education), but did so in an unprincipled manner, failing to couch the decision in any accepted legal standard beyond the preferences of those on the Court for an integrated society. This paper contests the idea that the Brown decision was unprincipled. We argue that the Court was moved by an old and evolving principle in American jurisprudence, one that had survived court eras and changes in court personnel, as well as economic and social upheavals since the founding. The principle of government neutrality, although historically tied to economic rights, provided the jurisprudential grounding for early civil rights decisions, and for developments in common understandings of due process and equal protection across the 20th century. Furthermore, regardless of its economic origins, the concept requiring governmental policies to be neutral as to party, both facially and in application, still has currency in the domain of civil rights. In exploring the connections between economic and civil rights doctrines, we find that evolving and organic definitions of due process and equal protection can provide a rubric under which to organize developments in associative rights doctrine in American jurisprudence.

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