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Plessy, Brown and Grutter: A Play in Three Acts

42 Pages Posted: 21 May 2005  

Jack M. Balkin

Yale University - Law School

Abstract

Although people often think of Brown v. Board of Education as a great transformation in the law, it is actually a halfway point between an older conception of equal citizenship and a newer one. The first conception, the tripartite theory, rationalized the new status of blacks in American society following the Civil War. It divided the rights of citizens into three parts - civil, political and social - and held that equal citizenship meant equality of civil rights. The second conception, the model of scrutiny rules, arises during the middle of the twentieth century. It sees the rights of equal citizenship as a series of protections from state power that are, in turn, divided into fundamental rights and suspect classifications.

The law of equality is also the law of inequality; it declares what constitutes unequal treatment as a matter of law, and what forms and claims of inequality the law will not recognize as presenting real or remediable problems of inequality. That is because principles of equal citizenship are compromises between contending forces in society. The law of equality enforces that compromise and restates it in principled terms, so that what law enforces is not equality per se, but equality in the eyes of the law. The story of Plessy, Brown, and Grutter shows how principles of equal citizenship were adopted at particular moments in the country's history to effect particular compromises that would be palatable to the most powerful groups in society.

Keywords: constitution, equality, antidiscrimination law, race, citizenship, plessy, brown v. board of education, grutter v. bollinger

JEL Classification: K10

Suggested Citation

Balkin, Jack M., Plessy, Brown and Grutter: A Play in Three Acts. Cardozo Law Review, 2005. Available at SSRN: https://ssrn.com/abstract=726983

Jack M. Balkin (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)

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