Loyola University Chicago Law Journal Volume 40 Article 2 Issue 3 Spring 2009 2009 Neutral Principles: Rethinking the Legal History of Civil Rights, 1934-1964 Anders Walker Saint Louis University School of Law Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the Civil Rights and Discrimination Commons Recommended Citation Anders Walker, Neutral Principles: Rethinking the Legal History of Civil Rights, 1934-1964, 40 Loy. U. Chi. L. J. 385 (2009). Available at: http://lawecommons.luc.edu/luclj/vol40/iss3/2 This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact
[email protected]. "Neutral" Principles: Rethinking the Legal History of Civil Rights, 1934-1964 Anders Walker* I. INTRODUCTION "[T]he question posed by state-enforced segregation is not one of discrimination at all." 1 So proclaimed Columbia law professor Herbert Wechsler to a surprised audience at Harvard Law School in April 1959. Hardly a southern segregationist, Wechsler's words suggested a shocking indifference to the plight of African Americans in the South, not to mention a puzzling rejection of the Supreme Court's landmark decision in Brown v. Board of Education.2 "I find it hard to think," 3 Wechsler exclaimed, "that [Brown] really turned upon the facts." "Suppose," he posited, "that more Negroes in a community preferred separation than opposed it?"4 What if, he pondered even more 5 bizarrely, blacks were "hurt" by integration? Wechsler's doubts about integration, and the fact that he chose to express them just as massive resistance to Brown was entering a decline, have puzzled scholars for almost five decades.