A line of African American and white school girls standing in a classroom while boys sit behind them at Barnard School, Washington, D.C. May 27, 1955 (Thomas J. O’Halloran, Courtesy of Library of Congress Prints & Photographs)

The question, “Where are we 50 years after Brown v. Board of Education?” carries a note of despair.

We know where we are: Northern public schools have more segregated than they have ever been and are more segregated than their Southern counterparts, African Americans have very high dropout rates and, worse still, a damaging drug culture and mind-numbingly high incarceration rates. We have not achieved a racially integrated democracy, even if some African-Americans hold positions of significant power.

The question, “Where are we 50 years after Brown v. Board of Education,” frequently inspires the answer: “Tired.”

We have good reason to feel that the mountain is insurmountable. I’d like to remind us of those reasons, for they may help us see where we are, exactly, on the mountain, and where we are going, and thereby help us rally our energies again.

The question of what the Brown decision was really about opens out to a dizzying set of options. Was it about integration? Was it about public education? Was it about social equality? Was it about democratic law?

Sometimes we judge it on one ground; sometimes, on another. In truth, Brown addressed all of these issues, because the case was ultimately about democratic constitutions and what it takes to change them.

A constitution is more than paper; it is a plan for constituting political rights and organizing citizenship, for determining who has access to the powers of collective decision-making that are used to negotiate a community’s economic and social relations. Such plans always involve custom as well as law.

Indeed, a constitution need not even be written out as such. It may, as in Britain, rest on laws and customs that accrete over time to establish a particular distribution of political power through institutions. Or it may, as in ancient Athens, consist of laws and customs that determine who has access to the instruments of political power.

As it happens, the U.S. Constitution of 1787-88 by no means even then contained the whole plan for determining political rights and powers. It left the regulation of voting rights to the states. One can’t claim to understand the constitution (with a small “c”) of the United States without looking beyond the document that bears that title not to context generally, but very specifically, (a) to state laws and (b) to customary habits of citizenship (unspoken norms for interaction that constrain who can speak where in public and how). Both state laws and habits of citizenship help route the basic circuitry of political power.

The Constitution drafted and adopted in 1787-88 attached itself to cultural habits for organizing power-relations among the colonies’ inhabitants that had been under construction since the early 17th century. In 1630 the Virginia Assembly had, among its earliest laws, decreed that “Hugh David be soundly whipped, before an assembly of negroes and others for abusing himself to the dishonor of God and shame of Christians, by defiling his body in lying with a negro; which fault he is to acknowledge next Sabbath day.” In 1640 they required “Robert Sweet to do penance in church according to laws of England, for getting a negro woman with child and the woman whipt.” Customs of racial domination and a customary illusion that racial purity existed and was a proper object of the law were, on this continent, born together with written law.

Over nearly two centuries, white inhabitants of the colonies grew accustomed to maintaining key public spaces as their exclusive possession; for the sake of preserving life and stability, black and indigenous inhabitants, all in all, grew accustomed to acquiescing to such norms and to the acts of violence that enforced them. Each set of customs, exclusionary on the one hand and on the other acquiescent, constituted the practical rules of democratic citizenship for a set of the new country’s inhabitants. Together the two sets of rules guided residents of the new United States into the diverse forms of behavior that secured stable (though undemocratic) public spaces.

An African American boy walking through a crowd of white boys during a period of violence related to school integration, in Clinton, Tennessee, December 4, 1956. (Thomas J. O’Halloran, Courtesy of Library of Congress Prints & Photographs)

These customary rules that routed power were as much a part of the new constitution written in 1787-88 as was the newly conceived and justly privileged text. Those customary rules limited the text, as we all know, in places like the “three-fifths compromise” clause that not only wrote something less than personhood into the Constitution for non-whites but that also, more importantly, inflated the power of Southern whites relative to Northern whites.

The Constitution did not and could not answer all questions about how power would be organized; state laws and habits of interaction filled the gaps. Our constitution with a small “c,” like all constitutions, has always consisted of a complex, intricate web of law and custom.

When the country fought the Civil War and shortly thereafter passed the 13th, 14th, and 15th amendments, it undertook the project of undoing a racial constitution that had been settling into place for at least 300 years (since 1562 when Britain entered into the slave trade). A constitution 300 years a-building needs at least as long for its rebuilding. Now, 50 years after Brown, we are only 150 years into that process of remaking the complicated, intricate web of law and custom that put race at the center of our political experience. We probably have at least another 150 years to go.

I recommend that those of us who feel tired return to the transcripts of the oral arguments in Brown (recently reenacted at the Goodman Theater in Chicago and to be aired on Illinois’ PBS affiliate on May 17th), where one finds a tautness on both sides that arises from the lawyers’ intuitive knowledge that they were arguing about the entirety of a constitution. These oral arguments are more powerful, more significant documents, in my view, than the opinion itself.

One finds inspiration in Thurgood Marshall’s impassioned arguments in those transcripts. He had much farther to go than we do. We ought to make his energy our own and turn to resurrecting public education for everyone and to confronting the evils of the drug trade as well as the inequities and hypocrisies of our current responses to it. As Marshall must have understood, the work still ahead is for our children’s children’s children.

In The Fray Contributor