Friday, May 21, 2010

The Anniversary of Brown v. Board of Education

“Do not think that I have come to abolish the law or the prophets; I have come not to abolish but to fulfill. For truly I tell you, until heaven and earth pass away, not one letter, not one stroke of a letter, will pass from the law until all is accomplished. Therefore, whoever breaks one of the least of these commandments, and teaches others to do the same, will be called least in the kingdom of heaven; but whoever does them and teaches them will be called great in the kingdom of heaven. For I tell you, unless your righteousness exceeds that of the scribes and Pharisees, you will never enter the kingdom of heaven.”
Matthew 5:17-20

This week marked the 56th anniversary of Brown v. the Board of Education of Topeka, Kansas, the landmark Civil Rights case in which the Supreme Court declared the racial segregation of public schools to be illegal. One of the primary architects of that case, Thurgood Marshall, would eventually become the first African American appointed to the Court.

As I think about that case, I find myself thinking about “letter” and “spirit” and Thurgood Marshall, and the interpretations of Law and Scripture. (And behind those thoughts, I am also thinking about how much we owe to Chief Justice Earl Warren, and to President Eisenhower for appointing him. But those reflections will wait for another day.)

Segregation was based on the principle of “separate but equal,” the notion that the equal protection clause of the fourteenth amendment could be satisfied by providing separate but equal schools (and other facilities) for Blacks and Whites. Segregationists argued that it was legal (and natural) for Blacks and Whites to be separated by law, as long as each had access to schools, etc. The Court decided that separate was not equal.

The ruling did not settle the matter. On the contrary, it set in motion an intense struggle for more than a decade as Civil Rights advocates worked to turn the legal decision into a practical reality. And it stirred a debate, which remains ongoing, about the role of “activist judges” in changing the way that laws are understood and implemented.

In 1987, as the country celebrated the the bicentennial of the Constitution, Justice Marshall gave a speech in which he talked about the "flaws" in our country at its founding and noted that it took a civil war and other struggles to move toward a more just society. But rather than dwell on "hopes not realized and promises not fulfilled," he would focus on celebrating the Constitution as "a living document" which pointed toward justice.

Thurgood Marshall’s view of the Constitution as “a living document” parallels Jesus’ view of the Torah. And on this anniversary of Brown v. Board of Ed., it is useful to ponder the role of interpretation. In that ruling, the Court did not "abolish" the Constitution, they "fulfilled" it. Scripture, like the Constitution, is a living Word. As Paul said, our covenant is “not of letter, but of spirit; for the letter kills, but the Spirit gives life” (II Corinthians 3:6).

After his retirement from the Court in 1991, Marshall was replaced by Clarence Thomas, whose judicial philosophy was almost diametrically opposed to his own. One wonders, if Thomas had been on the Court in 1954, how he would have voted in the Brown case. And without that landmark ruling, Clarence Thomas would not now sit on the Supreme Court. Without Thurgood Marshall, and without "Brown," our country would be a very different place.

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