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New Article on "Brown, Democracy, and Foot Voting"
My contribution to the American Journal of Law and Equality symposium on the 70th anniversary of Brown v. Board of Education.
This year is the 70th anniversary of Brown v. Board of Education, arguably the Supreme Court's most iconic decision. The American Journal of Law and Equality is publishing a symposium on the topic, and I am one of the participants. A draft of my contribution, entitled "Brown, Democracy, and Foot Voting," is now available on SSRN. Here is the abstract:
Traditional assessments of Brown's relationship to democracy and popular control of government should be augmented by considering the ways it enhanced citizens' ability to "vote with their feet" as well as at the ballot box. Brown played a valuable role in reinforcing foot voting, and this has important implications for our understanding of the decision and its legacy.
Part I of the article summarizes the relationship between foot voting and ballot box voting, and how the former has important advantages over the latter as a mechanism of political choice. Relative to ballot box voting, foot voting offers individuals and families greater opportunities to make decisive, well-informed choices. It also has special advantages for minority groups, including Blacks.
Part II considers traditional attempts to reconcile Brown and democracy, through arguments that the decision was actually "representation-reinforcing." While each has its merits, they also have significant limitations. Among other flaws, they often do not apply well to the Brown case itself, which famously originated in a challenge to segregation in Topeka, Kansas, a state in which – unlike most of the South – Blacks had long had the right to vote.
Part III explains how expanding our understanding of Brown to include foot voting opportunities plugs the major holes in traditional efforts to reconcile the decision and democratic choice. Among other advantages, the foot-voting rationale for Brown applies regardless of whether racial minorities have voting rights, regardless of whether segregation laws are motivated by benign or malevolent motives, and regardless of whether the targeted ethnic or racial groups can form political coalitions with others, or not.
In Part IV, I discuss the implications of the foot-voting justification of Brown for judicial review of other policies that inhibit foot voting, particularly in cases where those policies have a history of illicit racial motivations. The most significant of these is exclusionary zoning.
As noted in the article, producing a thesis on Brown that is both new and useful is a tall order. Few if any other judicial decisions have been analyzed so much. But, as the saying goes, "fools rush in where the wise fear to tread." And so I accepted the journal's invitation.
I welcome comments, suggestions, and criticisms.
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I never realized how much Brown looks like a nail.
+1
Brown prompted “white flight”. Ilya thinks this (like any other “foot voting”) was good for both blacks and whites. I’m confused.
I guess Somin is saying that Brown caused a shift from segregated schools to segregated neighborhoods, and that is good because people were voting with their feet.
An interesting thesis.
Except the obvious argument is that black folks should have just moved away from places with segregated schools — but no one actually believes that except for racists who support school segregation. And similarly, nobody really believes that the subsequent white flight as neighborhoods and schools desegregated was a good thing, either. Well, except for racists.
No one believes? The argument of Brown was that research had shown that nobody learns anything if there are too many Blacks in the classroom. But I guess nobody believes that, except for racists.
That is not at all what the argument in Brown was.
Yet it doesn’t follow that Republicans in a red state or Democrats in a blue state qualify for special judicial protection, despite the fact that the state government will often ignore or undervalue their preferences and interests.
I think that the good professor has his colours switched, possibly because reflexively, like so many immigrants (like myself) he thinks of “red” as of the left, and “blue” as of the right.