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Old Judicial Federalism: Desegregation Litigation in State Courts in the Era Before Brown v. Board of Education |
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Abstract:
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In 1977, Justice William Brennan began promoting the use of state constitutions as a source of individual liberties. Brennan argued that the Court’s unwillingness to expand federal constitutional protections made it imperative that state courts fill the void through expansive interpretations of their own constitutions. Dubbed “new judicial federalism,” Brennan’s proposal helped spawn renewed interest in state charters. New judicial federalism, however, was not all that new. State courts have always engaged in independent constitutional interpretation and grappled with many legal controversies before similar questions were brought before the Supreme Court. This paper offers an investigation of the issue of racial segregation in public schools in the era before Brown v. Board of Education. An analysis of court decisions reveals that state constitutions served as a bulwark against discrimination in some circumstances. However, in states lacking specific constitutional language, integration was difficult to attain. In those circumstances, the federal courts provided an alternative for relief. The analysis also reveals the impact of state court decisions and the role federal case law has on the future use of state constitutions. |
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court (166), state (160), school (142), case (93), v (83), equal (79), feder (69), law (61), segreg (58), separ (55), educ (54), decis (50), black (50), legal (39), constitut (36), right (32), public (31), white (31), brown (31), race (30), civil (30), |
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Name: Midwest Political Science Association 67th Annual National Conference
URL: http://www.indiana.edu/~mpsa/
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Citation:
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MLA Citation:
| Jacobs, Charles. "Old Judicial Federalism: Desegregation Litigation in State Courts in the Era Before Brown v. Board of Education" Paper presented at the annual meeting of the Midwest Political Science Association 67th Annual National Conference, The Palmer House Hilton, Chicago, IL, Apr 02, 2009 <Not Available>. 2010-03-11 <http://www.allacademic.com/meta/p362615_index.html> |
APA Citation:
| Jacobs, C. F. , 2009-04-02 "Old Judicial Federalism: Desegregation Litigation in State Courts in the Era Before Brown v. Board of Education" Paper presented at the annual meeting of the Midwest Political Science Association 67th Annual National Conference, The Palmer House Hilton, Chicago, IL Online <PDF>. 2010-03-11 from http://www.allacademic.com/meta/p362615_index.html |
Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: In 1977, Justice William Brennan began promoting the use of state constitutions as a source of individual liberties. Brennan argued that the Court’s unwillingness to expand federal constitutional protections made it imperative that state courts fill the void through expansive interpretations of their own constitutions. Dubbed “new judicial federalism,” Brennan’s proposal helped spawn renewed interest in state charters. New judicial federalism, however, was not all that new. State courts have always engaged in independent constitutional interpretation and grappled with many legal controversies before similar questions were brought before the Supreme Court. This paper offers an investigation of the issue of racial segregation in public schools in the era before Brown v. Board of Education. An analysis of court decisions reveals that state constitutions served as a bulwark against discrimination in some circumstances. However, in states lacking specific constitutional language, integration was difficult to attain. In those circumstances, the federal courts provided an alternative for relief. The analysis also reveals the impact of state court decisions and the role federal case law has on the future use of state constitutions. |
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| “Old Judicial Federalism: Desegregation Litigation in State Courts in the Era Before Brown v. Board of Education” Charles F. Jacobs Department of Political Science St. Norbert College 100 Grant Street De Pere WI 54115 9204032965 charles.jacobs@snc.edu Prepared for the annual meeting of the Midwest Political Science Association April 25 2009 Chicago Illinois 2 Introduction In a series of essays penned in the 1960s and 1970s Justice William Brennan promoted the strategy of mining state constitutions for additional individual liberties beyond those provided by the federal Bill of Rights. (Brennan 1961; Brennan 1966; Brennan 1977) Brennan argued that the United States Supreme Court’s unwillingness to continue the expansion of federal constitutional protections made it imperative that state courts fill the void through generous interpretations of their own constitutions. Dubbed “new judicial federalism ” Brennan’s proposal helped spawn renewed interest in state charters and the pursuit of favorable judicial holdings by plaintiffs. New judicial federalism however was not all that new. State courts have always engaged in independent constitutional interpretation and grappled with many legal controversies before similar questions were brought before the Supreme Court. A salient question that bears on Brennan’s call for a jurisdictional shift in litigation strategy concerns the |
| 33 Strauder v. West Virginia 100 U.S. 303 (1880). Surrency Erwin C. The History of the Federal Courts. New York: Oceana 1987. Sweatt v. Painter 339 U.S. 629 (1950). The Sue 22 Fed.Rep. 730 (1885). Trecker Janice Law. Preachers Rebels and Traders: Connecticut 1818-1865. Bridgeport CT: Pequot 1975. Tucker v. Blease 97 S.C. 303 (1913). Tushnet Mark V. The NAACP’s Legal Strategy Against Segregated Education 1925- 1950. Chapel Hill NC: University of North Carolina Press 1987. United States v. Buntin 10 Fed.Rep. 730 |
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