Fifty Years Of Brown: The Age Of Kritarchy

also Eugene Volokh`s

of this column, as posted

without links
on, and Paul Craig


May 17 is the 50th


Brown v. Board of Education,
the Supreme Court
decision that used federal force to integrate public
schools in the US.

The anniversary will be widely
celebrated in print. Jumping the gun by several weeks,
The Nation devoted its May 3 issue to celebrating
Brown. The magazine celebrated early, because the
editors fear that Brown`s anniversary might pass
with insufficient notice by those who should most
treasure the decision. Many on the liberal-left and in
black civil rights circles have soured on Brown
and regard the decision as contributing little to the

“black freedom struggle”
and even as a
disservice to blacks. The celebratory May 3 issue
carries an advertisement for

The Failures of Integration,
a new book by

Sheryll Cashin,
a Georgetown Law School professor
and former clerk for Thurgood Marshall.

Derrick Bell, a former NAACP Legal
Defense Fund attorney, has written that Brown was
based on unwarranted faith in integrationist ideals and

harmed black education

David Garrow, author of the
Pulitzer Prize-winning biography of Martin Luther King,

Bearing the Cross
believes that the
standoffishness of the liberal-left from its handiwork
is allowing conservatives to kidnap King`s birthday,
permitting “right-wing politicians like President
George W. Bush”
to “use the anniversary for

wreath-laying photo-ops
designed to advertise their
antiracist credentials.”[

Brown Still Matters by David J. Garrow,
The Nation, May 5, 2004]

Brown still matters to the
left, Garrow writes, because the

power the Court seized
in its Brown ruling
can be used to mandate homosexual marriage. The

Massachusetts court
has taken the lead, and on May
17 homosexuals will be able to obtain state marriage
licenses. This, Garrow writes, is a fitting tribute to
Brown`s constitutional vision on its 50th

Whether one looks with favor or
disfavor on homosexual marriage, Garrow is correct.
gave the judiciary the power to impose its
morality on society,

of legislation or

societal values.

Brown has gained acceptance,
because people have come to regard segregation as wrong.
Brown got rid of a wrong and, thus, cannot be
wrong itself.

This is fine as far as it goes. But
Brown did something else. It ushered in kritarchy—government
by judges
—as Supreme Court Justice Stanley Reed
recognized. Kritarchy is fundamentally at odds with the
separation of powers and the character of the American
political system.

Now that judges rule, the fight
over Court appointments has become a life and death
matter for the two political parties.

Even worse, in place of good will
and persuasion Brown substituted coercion as the
basis for reform. May 17, 1954, is a day of infamy,
because it is the day Marxism triumphed over liberalism
in America.

Americans have forgotten that
was based in sociology, not in law. This was
widely recognized at the time. “A

Decision: Court Founded Its Segregation
Ruling On Hearts and Minds Rather Than Laws,”
read a
New York Times headline on May 18, 1954. James
Reston commented that “the Court`s opinion reads more
like an expert paper on sociology.”
Columbia Law
professor Herbert Wechsler, a consultant to the NAACP in
the case, said that Brown would have to be
“accepted on faith”
as there was no constitutional
principle that justifies the ruling.

That`s because the Brown
decision was based on

Swedish socialist
Gunnar Myrdal`s argument that all
Americans (even Northeast Liberals) are so racist that
democracy would forever uphold segregation. To get rid
of the great evil, an elite would have to seize power
and rescue America from immorality.

With Brown, the Supreme
Court elevated Myrdal`s doubts about American democracy
above James Madison`s confidence in it. Ignoring
Madison`s warning, the Court made itself a

“will independent of the society
In so doing,
the Court upheld Karl Marx`s dictum that good will is
not an effective force in human affairs.

A hundred years previously,

had ridiculed liberals` reliance on good will
to produce reforms. Morality, he declared, is merely a
mask for class interests. Coercion alone decides class

Myrdal applied Marx`s analysis to
relations between races, just as feminists have applied
it to relations between genders.

Each scenario has an oppressor
group and an oppressed group and requires an extralegal
power to coerce a moral resolution.

This attitude is so

widely spread
today that it is taken for granted. It
has fundamentally altered our vision of ourselves.

University of Virginia Law

Michael Klarman
has argued that good will was
working, attitudes were changing, segregation was on the
way out, and Brown was

. Although decided in the name of
equality, Brown ushered in inequality before the
law with the racial


that followed in its wake, in the end
invading even

freedom of conscience
of the American people.

Brown`s true legacy is rule
by judges, the destruction of

equality before the law,
the replacement of
persuasion with coercion, the end of freedom of
conscience, and the rise of

racial grievances. Osama bin Laden, no
doubt, is celebrating.


Craig Roberts was Associate Editor of the WSJ editorial
page, 1978-80, and columnist for “Political Economy.”
During 1981-82 he was Assistant Secretary of the
Treasury for Economic Policy. He is the author of

Supply-Side Revolution: An Insider`s Account of
Policymaking in Washington