Black trials and mark weiner and mark s. weiner and rutgers school of law and rutgers universitiy and brown v. board of education

From the accolades heaped up by legal historians and reviewers in general, one would think that Mark Weiner has given us a book unparalleled in scope and illustrative of a stirring or provocative thesis regarding the role of African-Americans in the American legal system. To his credit, he tells a good story. In addition, he often weaves together striking material from a variety of fields, as when he discussed the role of cultural anthropologists from Columbia University in setting the tone for the NAACP's approach to arguing the consolidated cases that became Brown v. Board of Education.

But the dominant impression I received, after working through some of his book (why do you have to read every word to make comments?) is that he narrates very unevenly. When he stays close to the primary documents that mold his mind, his "take" is fresh and his words sprightly and fluent. When, however, he has to step back and try to explain the broader flow of events, he is quite in the dark. This reality underscores a growing approach to knowledge that I have: that the book, as such, is a nearly impossible medium for scholars to master and that articles of three to five pages, illustrating phenomena with precision or advancing a thesis about more general ideas, is the way that knowledge is best communicated in the coming generation. Nevertheless, since reviewers and givers of awards don't read things thoroughly, scholars will keep being commended for work that really isn't that good, and they and the world will think that something of great moment is here. To the review.

Brown v. Board of Education

Well, I should say a word about what he wants to do in general in the book. He wants to isolate and present about 15 "Black Trials," which he defines as "legal events that by their dramatic quality have symbolically defined the status of blacks in American civic life" (p.5). Ok. There is a leap of faith here, but I am not averse to faith. But "faith" in historical scholarship is often the liminal point for entry into a world of words difficult to pin down and concepts as evanescent as a wisp of prairie wind. So it is with Weiner. After telling us the three traditions which serve as a backdrop to these black trials, he says he will explain how the struggles among advocates in these trials has been "a struggle about the civic meaning of America" (p.5). I probably should have stopped reading the book there, since the phrase reminds me of the way that liberal-oriented people in their early 40s whom I know speak--and when I question them on the precise contours of their verbiage, they usually retreat into platitudes.

But I wanted to read some of his chapters in order to learn something and to see how he tells a story. I am convinced that law is slower than most human disciplines in waking up to the fact that people want to learn through narrative--thus I wanted to hear his stories. And he tells a good one. In his chapter on Brown v. Board of Education, for example, he tells us about the history of the NAACP and the Garland Fund, the seminal importance of the Margold Report of 1933 in charting a legal strategy for the NAACP to challenge the "separate but equal" standard of Plessy, and the importance of a few Supreme Court cases previous to Brown in creating the climate for Brown's acceptance. For example, his brief treatment of Sweatt (1950) is important because he shows how the Court became open to using "intangibles" in measuring whether schools and facilities were indeed "separate but equal." The 1954 Brown decision is suffused with intangibles. In addition, his wonderful treatment of the role of Black psychologist Kenneth Clark and his study on children's reactions to black and white dolls not only shows how this formed the basis for much of the Warren Court's decision but also demonstrates how Clark himself was shaped by an approach to cultural anthropology emerging from Columbia University after WWI.

Criticisms

But here I must stop and say that when he leaves the safe contours of tight narration, he gets into considerable trouble. Five illustrations from his chapter on Brown alone will show this. First, his treatment of the history of the 14th Amendment is confusing and unclear. He gives us neither the text of it, the situation that led to its passage or its application over the years. He quotes Holmes' line about Herbert Spencer from Lochner (without identifying the case) that any first year law student knows. When he starts speaking in his "civic meaning"-type of vocabulary, as when he says, "the amendment became a bridge between two polarities in American political life, the nation and the self (p.279)," I see he has retreated into the murky depths of meaningless verbiage and has kindly given me a signal to skip the next several paragraphs.

So I did. Then, when I was reading his section on the case itself before the Court (pp.292ff.), I felt that we were very quickly on unstable ground. When he spoke about how history (in 1952) had "enriched the soil well for the transformation of constitutional doctrine," I was a bit jittery but I let that pass. But then he says, "But still the advance of reason ultimately requires individuals prepared to yield to it" (p.292). What is this, I wondered? Does history transform doctrine? Does reason? Or do individuals? I know for certain that "reason" doesn't, because I am not sure what reason is. Law professors in general seem to think they know what reason is, but I think they use the word the way religious fundamentalists use the word "truth." "Reason" is a code word for law professors to let you know that what comes is something they like. But is the development of constitutional law the "advance of reason?" I could have expected that from someone in the 19th century, but not today.

Third, he goes on to say that it would have been difficult to overrule Plessy because "the judicial sensibility is rightly restrained by obedience ot the law, whose development proceeds according to its own strict rules" (p.292). Huh? Law develops according to strict rules? Well, that is one theory about the development of law, but it is relatively incompatible with the advance of reason or the preparing of the soil by history, I would think. And, it is inconsistent with the way Warren framed his opinion in Brown. In other words, it seems that Weiner is trying to come up with a reason for the Court's making the decision and it is like the embarrassment that a nerdy guy often feels in the presence of a beautiful woman: you utter all kinds of meaningless things because you are overwhelmed by the fact of your being in this situation.

Fourth, he informs us that on the Supreme Court in 1954 were various justices, including Chief Justice Fred Vinson. Then, on the next page, he says, "On September 8, 1953, Chief Justice Vinson died of a heart attack" (p.293). Must have been a neat trick to set him up in the Chief's chair while dead, but since Vinson wasn't a very illustrious justice in his tenure, perhaps Weiner thinks that is what happened. I, for one, know, and I will not yield to anyone on this point, that when you are dead you no longer can sit on the Supreme Court.

Finally, he ends the discussion of Brown I on p.297, but then like a pilot who does not really know how to land a plane in inclement weather, decides to keep telling us about Brown--Brown II and Emmett Till and Martin Luther King in the Birmingham jail nearly a decade later. I think he is trying to create a 'link' with the next chapter (on Huey Newton), but it gives quite an unclear trumpet call, in the words of the Apostle Paul.

I think I will take one more essay to comment on a few other chapters.

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