'Neutral Principles': Rethinking the Legal History of Civil Rights, 1934-1964

Abstract

This paper recovers Columbia Law Professor Herbert Wechsler's constitutional involvement in the long civil rights movement. Derided for criticizing Brown v. Board of Education in 1959, Wechsler first became involved in civil rights litigation in the 1930s, continued to be interested in civil rights issues in the 1940s, and argued one of the most important civil rights cases to come before the Supreme Court in the 1960s. His critique of Brown, this article maintains, derived not from a disinterest in the black struggle but from a larger conviction that racial reform should be process rather than rights-based. By recovering Wechsler's approach, this article suggests a new paradigm for understanding the Supreme Court's role in the civil rights movement, one that focuses on process-based rulings like New York Times v. Sullivan, not Brown.

Keywords: Wechsler, constitutional law, neutral principles, civil rights, Brown v. Board of Education, Herndon, United States v. Classic, International Labor Defense, ILD, New York Times v. Sullivan, legal process