Faculty Research Repository

This article, published in 2005 as part of a symposium on Brown v. Board of Education, addresses the contradiction between long-professed and deeply-held equality and liberty principles and a devastating history of racism manifest itself in the Supreme Court’s doctrinal support for Jim Crow segregation. I argue that the Supreme Court managed this dissonance between the legal ideal of equality and the actual practice of racial subordination through the implementation of doctrinal myths, myths which enabled white legal actors and society to retain a formal belief in equality. Through the doctrinal myths of state action, federalism, separate-but-equal, and reasonable segregation, the Court was able to facilitate the white South’s re-establishment of legalized white supremacy, which contravened the basic principles of Reconstruction and the Reconstruction Amendments to the Constitution, and yet at the same time argue that it was all along implementing and preserving the equality ideals of those very Amendments. I also consider how, by studying this period of doctrinal myth-creation, we can perhaps more fully analyze current doctrines affecting racial and legal equality, and, in particular, how appeals to the doctrinal rhetoric of equal citizenship may or may not result in actual movement towards that principle even in the face of societal racial subordination.