Introduction

Abstract

Introduction Melvin I. Urofsky Chairman, Board ofEditors In 1938, in his famous footnote in the CaroleneProducts case, Justice Harlan Fiske Stone suggested that while economic regula­ tion should receive only a simple review by the courts, those laws restricting civil liber­ ties or affecting “discrete and insular minori­ ties” required a more exacting scrutiny. Much ofthe history ofthe Court in the six decades since that case has revolved aroundthe Court’s response to the pleas of minorities for the equality promised to them in the Fourteenth Amendment’s Equal Protection Clause. No minority has suffered more in Ameri­ can history than African-Americans, those brought here against their will to be slaves in the English colonies and their descendants. Despitethe promise ofemancipationcontained in the Civil War amendments, blacks suffered continuing discrimination after the end ofRe­ construction. The South’s effortsto create a seg­ regated society received the Court’s imprima­ tur in Plessy v. Ferguson, a decision that, how­ ever justifiable at the time, has been roundly criticized as wrogly decided by commentators coveringthe whole range ofthejurisprudential spectrum. Yet the abandonment ofPlessy’ s separatebut -equal doctrine also constitutes one of the great chapters in American political and constitu­ tional history. The role of the Supreme Court in declaring, as Chief Justice Earl Warren did in Brown v. Board ofEducation, that segregation based on race is wrong, surely stands as one fo the noblest moments in the Court’s commitment to equaljustice under law. The road since Brown has not been smooth, and there are many people who believe that we as a society should be further along the road to real equality, that the Court should have done more to quash not only de jure segregation but also the badges ofdiscriminiation that remained. But this view misinterprets the role of the judiciary in a government of separated powers within the fed­ eral system. The articles in this issue of the Journal are derived from one of the most important and popular educational activities ofthe Society, its annual lecture series held in the courtroom of the Supreme Court. Each year we are pleased to publish these lectures and thus make them avail­ able to a wider audience. Our only regret on this issue is that Professor William VanAlstyne was unable, due to other commitments, to revise his talk on the pre-P/essy era and get it to us in time for publication; we hope to be able to carry that article in a future issue. ...