The Battle over Brown's Legitimacy

Constitutional scholars have given few Supreme Court rulings the attention that they have lavished upon the celebrated decision in Brown v. Board of Education . Yet the literature of public law is surprisingly unedifying with regard to the process by which the desegregation decision achieved iconic status in American legal culture. Scholarly inattentiveness to the history of Brown's reputation is startling, given that southern politicians were not the only persons in 1954 to characterize the decision as a manifest instance of judicial legislation. Even persons sympathetic to desegregation conceded that the Justices had circumvented traditional legal constraints in rendering Brown . In the years immediately following the ruling, some scholars appealed to the notion of a "living Constitution" to defend Brown against charges that it conflicted with the original understanding of the Fourteenth Amendment and with the "separate but equal" doctrine that the Court had established in Plessy v. Ferguson . But critics, some of whom even accepted the concept of the "living Constitution," also challenged the Court's reading of social fact—that is, its claims regarding the inherent inequality of segregated schools—which supposedly justified judicial recognition of a right that conflicted with precedent and with the intentions of the Framers of the Equal Protection Clause.     

对中国全面军事侵略及对平民的暴行——证据总结和论证要点

大卫·萨顿(David Nelson Sutton,1895-1974)出生于美国弗吉尼亚州国王皇后县,1915年毕业于美国里士满大学,获学士学位,曾参加第一次世界大战。1919年退伍后考入美国弗吉尼亚大学法学院,毕业后在弗吉尼亚州西点从事律师工作,是美国律师协会会员,并担任弗吉利亚州威廉王县检察官(1926-1946)、弗吉利亚州律师协会会长等职务。1946年1月,萨顿应邀参加东京审判,在国际检察局任副检查官(Associate Counsel)。同年3月,萨顿与国际检查局的莫罗(Morrow)&裘劭恒前往中国进行了为期五个星期的调查取证工作,并获得了31名证人的书面证词。5月31日,萨顿等人再次前往上海、南京会晤证人,并挑选了15名证人于6月12日返回东京。萨顿与莫罗作为检方律师,全程参与了远东国际军事法庭关于“中国阶段”的庭审工作——出示证据、提供证人。本文是萨顿对检方搜集的日本侵华证据的总结,在大量证据的基础上,勾勒出七七事变前后日本违反国际条约义务,对中国全面军事侵略的步骤与模式,即对平民的暴行发生在所有占领区,并着重论述了日军在南京暴行持续的时间、死难者和被强奸者人数,以及日本政府和相关被告应承担的责任。本文中的英文注释均为原文所加。其英文打印件藏于美国里士满大学Muse法学院“萨顿档案”之中。     

Herbert Brownell,Jr.: The “Hidden Hand”1 in the Selection of Earl Warren and the Government's Role in Brown v. Board of Education

There are, of course, many heroes behind the Supreme Court's most famous and, some would argue, most significant case of the 20^th Century: Brown v. Board of Education. ² Chief Justice Earl Warren wrote the decision and is credited with convincing the other Justices to make it unanimous. Thurgood Marshall and Robert L. Carter argued important aspects of the case for the NAACP and championed a legal strategy that brought it to the High Court. Few, however, would readily name Herbert Brownell, Jr. as one of the heroes. Yet, as Attorney General, Brownell was President Eisenhower's chief adviser on judicial appointments when he put Warren on the Court, and Brownell led the Justice Department in supporting the notion that segregation of public schools violated the Constitution.     

Justice Harlan's “Great Betrayal”? A Reconsideration of Cumming v. Richmond County Board of Education

In 1899 the Supreme Court of the United States decided the case of Joseph W. Cumming, James S. Harper, and John C. Ladeveze v. The County Board of Education of Richmond County, State of Georgia. The litigation arose after the all-white Richmond County School Board closed Ware High School, a segregated, tax-supported, all-black high school in the City of Augusta, GA. The plaintiffs did not seek integration of the Augusta Public Schools. They did not lodge a complaint regarding the separation by race of children in the primary grades. They did not attempt to compel the board to provide a high school for blacks. Their demand was for injunctive relief that would force the closing of the white high school through the withholding of tax support until the black high school was reopened. This approach succeeded in the trial court but failed in the Georgia Supreme Court. In an opinion written by Justice John Marshall Harlan, the Justice who had just three years before asserted that the constitution was color-blind, the Supreme Court of the United States sustained the ruling of the Georgia Supreme Court denying the request for injunctive relief. Ware High School was not reopened.     

BOOK REVIEWS

Al-islāTm tujāTh tahaddiyāTt al-hayaāT al-asriyya. By Hasan Sa^cb. Beirut: DāTr al-ÄdāTb, 1965. 198 pp. LL 3.00. The Surest Path to Knowledge Concerning the Condition of Countries. By Khayr al-Din al-Tunisi. Translated by Leon Cari Brown. Cambridge: Harvard University Press, 1967. pp. 182. Islam in the Modern National State. By E. I. J. Rosenthal. Cambridge University Press, 1965. pp. xxii, 416. $ 10.50. Tunisia: From Protectorate to Republic. By Dwight L. Ling. Bloomington and London: Indiana University Press, 1967. pp. ix, 273. $7.50 or 54s. Ahmed Ben Bella By Robert Merle. Translated by Camilla Sykes. Introduction by Clare Holingworth. New York: Walker and Company, 1967. pp. 160. Impact of US. Technial aid on the rural devdopment of Iran. By Gholam H. Kazemian Brooklyn, New York: Theo Gaus’ Som, Inc, 1968. ix plus 129 pp. $6.00     

Minutes of Meeting June 19

ESKIMOS OF THE NUSHAGAK RIVER. By JAMES W. VAN STONE. University of Washington Press, 1967. Reviewed by W. R. Mead.

AFTER LIVINGSTONE. By DAVID PICTON JONES, n.p., 1968, 35s. Reviewed by E. P. Baker.

DISCOVERING HILL FIGURES. By KATE BERGAMER. Shire Publications, Tring; N.D. Pp. 48. Plates 8.4s. 6d. Reviewed by Theo Brown.

THE STORY OF ROBIN HOOD, AND OTHER TALES OF ADVENTURE AND BATTLE. Edited by ANDREW LANG. Illustrated by H. J. Ford. Schocken Books: New York. $1.75. Reviewed by Roger Lancelyn Green.

CHINESE FAIRY TALES. By ISABELLE C. CHANG. Illustrated by Shirley Errickson. Schocken Books: New York. $2.45. Reviewed by Roger Lancelyn Green.

Die zweite Sammlung der lettischen Volkslieder von Gustav Bergmann. By H. BIEZAIS. Skrifter utgivna av Religionshistoriska Institutionen i Uppsala, vol. 3. Uppsala (Almquist &; Wiksells Boktryckeri) 1967. Pp. 110. Pls 4. Reviewed by Ellen Ettlinger.

THE HUMAN SKULL. A CULTURAL HISTORY. By FOLKE HENSCHEN. With an introduction by K. P. Oakley. London (Thames &; Hudson) 1965. Pp. 168, 22 text figs, 76 plates. Reviewed by Ellen Ettlinger.

VOLKSSAGEN AUS DEM RIESEN- UND ISER-GEBIRGE. By ROBERT COGHO AND WILL-ERICH PEUCKERT. Denkmäler deutscher Volksdichtung, vol. 8. Göttingen (Verlag Otto Schwartz &; Co.) 1967. Pp. ix, 102; plates 10, and 1 map. Reviewed by Ellen Ettlinger.     

Creating Choice: A Community Responds to the Need for Abortion and Birth Control, 1961-1973

Creating Choice is an important collection of edited interviewswith individuals involved in the movement to secure women'saccess to birth control and abortion in western Massachusettsin the decades surrounding the Supreme Court's pivotal rulings,Griswold v. Connecticut, the 1965 decision that legalized contraceptiveuse by married couples, and Roe v. Wade, the 1973 abortion rightscase. The collection broadens the historical treatment of thismovement, introducing activists from grassroots women's organizationsand accentuating the contributions of professionals—clergy,medical practitioners, and health educators—who establishednetworks and services that made free choice possible for somewomen even before state law extended     

In the Shadow of the Moon: A Challenging Journey to Tranquility, 1965-1969

French and Burgess have added yet another book to the enormousliterature on the Space Race. Based partly on oral history interviewsand partly on written and e-mailed statements and other documents,In the Shadow of the Moon focuses on the American side of thesecond half of the Space Race. (French and Burgess dealt withthe first half of the Space Race in a previous work, Into thatSilent Sea.) Between March 1965 and July 1969, the U.S. launched fifteenmanned space missions. In four years and four months, NASA wentfrom     

Cooper v. Aaron (1958): A Hidden Story of Unanimity and Division

Contemporary and later commentators emphasized the Supreme Court's forceful affirmation of its own authority in Cooper v. Aaron (1958). The case was the Court's first significant test of states' rights opposition denying that Brown v. Board of Education (1954) (Brown I) and the Brown II (1955) decree permitting gradual implementation were legitimate constitutional law. Indeed, following the Court's announcement of Cooper v. Aaron in September 1958, Arkansas Governor Orval Faubus and his followers closed the very same Little Rock schools the Supreme Court had ordered desegregated. Black students' rights did not prevail until summer 1959. In Arkansas and elsewhere, defiance initially triumphed over the Supreme Court's self‐assertive power. ¹     

Justice Jackson and the Second Flag‐Salute Case: Reason and Passion in Opinion‐Writing

In 1943, the Supreme Court handed down West Virginia State Board of Education v. Barnette. ¹ With Justice Robert H. Jackson writing for the six‐Justice majority, the Court upheld the First Amendment right of Jehovah's Witnesses schoolchildren to refuse to salute the flag or recite the Pledge of Allegiance, state‐imposed obligations that the children and their parents contended were acts of idolatry that violated biblical commands. Judge Richard A. Posner has said that Justice Jackson's effort “may be the most eloquent majority opinion in the history of the Supreme Court.” ²     

Myths and the "Politics of Exceptionality": Interpreting Chicana/o Narratives of Achievement

Abstract: The author draws from select topical life histories conductedwith individuals who enrolled in doctoral programs at UC Berkeleyduring a ten-year period beginning with 1968. She examines themyths surrounding academic achievement for people of Mexicandescent and how these myths affected her initial interpretationof their childhood stories about their parents' relationshipto their achievements. She considers the interpretation of thesenarratives from the perspectives of various schools of thoughtand argues that the issue of educational achievement by minoritygroups is subject to a "politics of exceptionality." Hence,high academic achievement is not considered normative, and studentswho do achieve are treated as exceptions, not only to the presumedmeritocracy, but as exceptions to their racial/ethnic group.By individualizing their achievements and focusing on theircharacteristics as individuals, the focus of social policieswith respect to educational attainment remains focused on theindividual achiever and not on the institutional processes andstructural opportunities that maximize the possibilities forachievement.     

Surviving Justice: America's Wrongfully Convicted and Exonerated

On Independence Day 2008, the Associated Press distributed astory about a Texas man released from prison after serving fifteenyears. He was the nineteenth Dallas County man since 2001 shownto be innocent by DNA evidence ("DNA Clears Texan," Iowa CityPress-Citizen, July 4, 2008: 7A). This was the highest numberof any county in the nation. Wrongful conviction is, however,not limited to Dallas County, TX, nor is exoneration alwaysthe result of DNA tests. Just five days earlier, The Des MoinesRegister had published a front-page story about a man spendinghis twelfth year in an Iowa prison. He had been convicted inDes Moines's Polk County of a 1996 murder, but the many redflags in the case finally warranted a hearing and a possiblereversal of     

Educational Policy Analyses: Three Recent Works

Books reviewed in this articles:
Derrick Ben, ed., Shades of Brown; New Perspectives on School Desegregation
Michael E. Manley-Casimir, ed., Family Choice in Schooling
Michael A. Rebell and Arthur R. Block, Educational Policy Making and the Courts: An Empirical Study of Judicial Activism     

Front and Back Covers,Volume 34, Number 2. April 2018

Cover caption, volume 34 issue 2 Front Cover: School shootings Student lie‐in at the White House to protest gun laws, 19 February 2018. The demonstration was organized by Teens For Gun Reform, an organization created by students in the Washington, DC area in the wake of the 14 February shooting at Marjory Stoneman Douglas High School in Parkland, Florida. Earlier on the day of the shooting, the priest at the Basilica of St Francis of Assisi in Santa Fe mused during the Ash Wednesday ritual whether valentine hearts and bouquets of red roses could coexist with ashes on foreheads and reminders of human mortality. Could love and death be partners? As the congregation exited the church, mobiles rang with news of yet another school shooting and the deaths of 14 high school students and three teachers trapped inside an elite high school in suburban Florida. The gunman was a high school reject and white supremacist. It was the 292nd school shooting in America since Sandy Hook, the tiny tot massacre of 2013. Yet America's presidents and political leaders across the political divide remain hostage to the National Rifle Association's mantra: more automatic rifles equals more security, now including in US schools. State laws prevail over executive orders. Currently 14 states in the US arm teachers and 16 states allow local school boards to decide whether to do so. But one thing has changed as the survivors of the school massacres and their young followers have taken the reins. Beginning on 14 March, thousands of students from elementary and high schools have begun to march out of their classrooms. A new and powerful civil rights movement is spreading across the nation. Meanwhile Trump and his education secretary are proposing to target poor, black and Latino students, to undo President Obama's policies that protected male minority students from disproportionately harsh ‘zero tolerance’ school policies. In this issue, Scheper‐Hughes considers school shooting antecedents, beginning with the misfired Clinton campaign against youth violence. Back Cover: ESTHER GOODY (1932–2018) Esther Goody during fieldwork in Ghana, 1957. Esther Goody was a member of one of the most famous husband‐and‐wife teams in anthropology. She devoted her working life to the study of northern Ghana's peoples and to synthesizing social anthropology and social psychology.     

FEATURE REVIEW

Feature reviews in this article
Michael L. Krenn. U.S. Policy toward Economic Nationalism in Latin America, 1917–1929 . Wilmington, DE: Scholarly Resources, 1990.
Gerald K. Haines. The Americanization of Brazil: A Study of U.S. Cold War Diplomacy in the Third World, 1945–1954 . Wilmington, DE: Scholarly Resources, 1989.
Ruth Leacock. Requiem for Revolution: The United States and Brazil, 1961–1969 . Kent: Kent State University Press, 1990.
Michael J. Cohen. Truman and Israel . Berkeley: University of California Press, 1990.
Warren I. Cohen and Akira Iriye, eds. The Great Powers in East Asia, 1953–1960 . New York: Columbia University Press, 1990.
Rosemary Foot. A Substitute for Victory: The Politics of Peacemaking at the Korean Armistice Talks . Ithaca: Cornell University Press, 1990.
Michael J. Hogan and Thomas G. Paterson, eds. Explaining the History of American Foreign Relations . Cambridge and New York: Cambridge University Press, 1991.     

Geographica:Reviews

Book reviewed in this article:
A Symposium on Continental Drift , organized by P. M. S. B lackett , S ir E dward B ullard , and S. K. R uncorn , Royal Society, London, 1965
Geografiya Naseleniya v S.S.S.R., Osnovnyye problemy [The Geography of Population in the U.S.S.R.: Principal Problems], edited by E. N. P avlovskiy and O. A. K onstantinov , Academy of Sciences of the U.S.S.R.—Geographical Society of the U.S.S.R., Moskva-Leningrad, 1964
Market Potential and Economic Shadow , by D. M. R ay , University of Chicago, Department of Geography Research Paper no. 101, University of Chicago
The Geography of Frontiers and Boundaries by J. R. V. P rescott , Hutchinson University Library of Geography, London, (Aldine Publishing Company, Chicago), 1965
The Field Notes of Captain William Clark, 1803–1805 , edited by E. S. O sgood , Yale Western Americana Series, no. 5, New Haven (in Canada, McGill University).     

The Italian American Experience In New Haven: Images and Oral Histories

Anthony V. Riccio's lavish new coffee table book, The ItalianAmerican Experience in New Haven: Images and Oral Histories,provides a fascinating look at the experiences of Italian immigrantsand their children in one east coast community. The field ofimmigration history has certainly benefited from the wealthof oral histories collected from immigrants and their descendants.Ranging from Al Santoli's New Americans, an Oral History: Immigrantsand Refugees in the U. S. Today (1988) to works such as La Merica:Images of Italian Greenhorn Experience (1985)     

Legislation and Liberalization: The Debate About Corporal Punishment in Schools in Postwar West Germany, 1945--1975

Between 1945 and 1975 West Germany became modernized and liberalized.School education was one of the key fields in which this processwas played out. Methods of school discipline, corporal punishmentin particular, were the subject of heated public debates, reflectingthe broader political and moral issues of West German postwarreconstruction. The article examines the debate and its conclusionin the 1970s by focusing on Hesse, the only Land that bannedcorporal punishment in schools completely in 1946, and Bavariaand North Rhine-Westphalia, which both allowed it under restrictions.Proponents of corporal punishment pointed to the problems withdeviant youth in the postwar years and declared the use of thistype of sanction to be a right given to teachers by customarylaw. Opponents, however, put forward pedagogical, psychological,political, and moral arguments and called for a clear breakwith authoritarian methods of the past as necessary for rebuildingdemocracy. The pace and character of change, however, was determinedin the field of law. While a Supreme Court ruling in 1954 supportedthe opponents' position, a 1957 ruling by another Chamber ofthe same court reaffirmed the traditional customary-law viewof a teacher's right to wield the cane. Customary law couldonly be superseded by written law, but when most Land governmentsfinally abolished corporal punishment in schools in the early1970s, they did so, following Hesse's example, by administrativedecree only. While teachers who violated the ban therefore werenot automatically subject to criminal proceedings, courts remainedreluctant to uphold the ban. The abolition of corporal punishmentin schools, which also came at the price of an increase in bureaucraticregulations about school discipline and school life, can thusbe seen as reflecting the ambivalence of modernization and liberalizationafter 1945.     

Underwater Archaeology on Foot: a Systematic Rapid Foreshore Survey on the North Kent Coast, England

Foreshore archaeology can be considered 'underwater archaeology on foot', because it is possible to investigate the archaeological heritage at low tide without the need for diving. Rising sea-levels, increasing coastal erosion and the loss of important foreshore environments make immediate action necessary. In 2005, Wessex Archaeology was commissioned by Kent County Council, supported by English Heritage, to continue a Rapid Coastal Zone Assessment Survey on the North Kent Coast as part of a project started in 2001. In four weeks 378 monuments were updated and 198 new monuments recorded, among them a submerged forest, a trackway, several fish-traps and shipwrecks.
© 2007 The Authors     

Beyond the Vietnam Principle

K. Buchanan, Out of Asia: Asian Themes. 1958–66, Sydney University Press, 1968, pp. 320, $6.75. H. G. Gelber, The Australian American Alliance: Costs and Benefits, Penguin, 1968, pp. 160, 85c. G. Greenwood and N. Harper, Australia in World Affairs, 1961–1965, F. W. Cheshire for the Australian Institute of International Affairs, Melbourne, 1968, pp. viii + 503, $8.75. T. B. Millar, Australia's Foreign Policy, Angus and Robertson, Sydney, 1968, pp. xiv + 361, $4.95. T. B. Millar (ed.), Australian‐New Zealand Defence Co‐operation, Australian National University Press, Canberra, 1968, pp. ix + 125, $3.75. R. J. O'Neill, Indo China Tragedy, 1945–54, Cheshire, Melbourne, 1968, pp. 56. M. Teichmann (ed.), New Directions in Australian Foreign Policy: Ally Satellite or Neutral?, Penguin, 1969, pp. 212, $1.00. D. Vital, The Inequality of States: A Study of the Small Power in International Relations, Oxford University Press, 1967, pp. 198, $5.10. A. Watt, Vietnam: an Australian Analysis, Cheshire, Melbourne, 1968, pp. ix + 177, $3.50.