Linda L. Berger, University of Nevada, Las Vegas School of Law, is publishing The Color-Blind Constitution: Choosing a Story to Live By in the Michigan State Law Review. Here is the abstract.
The two phrases most associated with the U.S. Supreme Court's decisions in Brown v. Board of Education have taken on Orwellian meanings. Like the "Patriot Act" and "family values," the original intention and meaning of the words have been obscured by the context and the history of their use. "The color-blind Constitution" is a rationale for rejecting attempts to integrate public schools. No one is able to proclaim without irony that an action will be taken "with all deliberate speed." In this article, these terms will be the vehicle for examining unanticipated consequences, particularly those associated with brief writing in the U.S. Supreme Court. My thesis is that some unanticipated consequences — for example, those associated with the Government's friend of the court briefs filed in Brown I and Brown II and eventually with the term all deliberate speed — are far more troublesome than others — in this case, those associated generally with the color-blind Constitution and specifically with the NAACP Legal Defense and Education Fund (NAACP) briefs filed on behalf of the school children in Brown and associated cases. The article's claim is that the real, qualitative difference between the arguments made in these briefs has affected the nature of their unanticipated consequences. To support the claim, I suggest and follow an approach that combines narrative, metaphor, and constitutional interpretation. Together, these may provide guidelines for "judging" the arguments made.Download the article from SSRN at the link.