1. The origin of the term Jim Crow is lost in obscurity, as C. Vann Woodward points out in his book The Strange Career of Jim Crow (2d rev. ed. [New York: Oxford University Press, 1966], p. 7n). The words were first used in a song-and-dance score written in 1832. The term, however, is most often used to refer to the segregation statutes that began to appear in the South before the turn of the twentieth century. The large number, great detail, and effective enforcement of these statutes distinguish them from the black codes that followed the withdrawal of federal troops from the South in 1877, ending the Reconstruction era, and from the ubiquitous slave codes that regulated not only race relations inside the peculiar institution but also relations between whites and free or quasi-free African Americans in the North and South from the inception of American slavery. In the generic sense, Jim Crow refers to the system of discrimination and segregation laws born in the North, developed contemporaneously with slavery, and passed down in a variety of forms intergenerationally through the 1960s.

In this book, the term Jim Crow is used in a somewhat more specific sense. Most important, it does not encompass the separate-and-unequal policy that governed interracial relations prior to the "equality" amendments to the Constitution (the Thirteenth, Fourteenth, and Fifteenth amendments) and the "equality" laws enacted by Congress during Reconstruction. Rather, I use the term as coextensive with the separate-but-equal policy brought alive by the Supreme Court's interpretation of the Reconstruction amendments and statutes in the final decades of the nineteenth century. For this reason, Plessy v. Ferguson (163 U.S. 537 [1896]), which, more than any other Supreme Court case, institutionalized the separate-but-equal policy, is an appropriate historical "starting date" for Jim Crow.

See Woodward, Strange Career of Jim Crow, chaps. 1-3; Franklin, From Slavery to Freedom, chaps. 6-19; Derrick A. Bell, Jr., Race, Racism, and American Law, 2d ed. (Boston: Little, Brown, 1980), pp. 364-379; Roy L. Brooks, "Use of the Civil Rights Acts of 1866 and 1871 to Redress Employment Discrimination," Cornell Law Review 62 (1977): 258, 261-266. On the subject of Reconstruction, see, e.g., Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: Harper and Row, 1988).

2. For extensive discussions of the transition from a separate-but-equal public policy to one of formal equal opportunity, see Williams, Eyes on the Prize ; Richard Kluger, Simple Justice (New York: Alfred A. Knopf, 1976); Woodward, Strange Career of Jim Crow . break

As used in this chapter, the term community means more than just a neighborhood or a physical locality; it refers to a society or body of people. For further discussion of this concept, see, e.g., In re Huss, 126 N.Y. 537, 27 N.E. 784 (1891).

3. Plessy v. Ferguson, 163 U.S. 537 (1896).

4. For further discussion of Washington's philosophy, see the Introduction, above, note 22.

5. See, e.g., Williams. Eyes on the Prize, pp. 237-257; Kluger, Simple Justice, pp. 1-256; Woodward, Strange Career of Jim Crow, pp. 67-110.

6. See Brown v. Board of Education, 347 U.S. 483 (1954).

7. Thomas S. Kuhn, The Structure of Scientific Revolutions, 2d ed. (Chicago: University of Chicago Press, 1970).

8. Exec. Order No. 8802, 3 C.F.R. 957 (1941).

9. See, e.g., Charles C. Moskos, "Blacks in the Army: Success Story," Current, September 1986, pp. 10-17; Philip McGuire, "Desegregation of the Armed Forces: Black Leadership, Protest, and World War II," Journal of Negro History 63 (Spring 1983): 147-158; Daniel L. Schaefer, "Freedom Was as Close as the River: The Blacks of Northeast Florida and the Civil War," Escribano 23 (1986): 91-116; Saralee R. Howard-Filler, "Two Different Battles," Michigan History 71 (January/ February 1987): 30-33; Gregory Evans Dowd, "Declarations of Dependence: War and Inequality in Revolutionary New Jersey, 1776-1815," New Jersey History 103 (1985): 47-67. One of the best books on African Americans in the military is Richard 0. Hope, Racial Strife in the U.S. Military: Toward the Elimination of Discrimination (New York: Praeger, 1979).

10. Exec. Order No. 9981, 3 C.F.R. 722 (1948); Exec. Order No. 9980, 3 C.F.R. 720 (1948).

11. See Franklin, From Slavery to Freedom, pp. 523-545.

12. See, e.g., Edwin Dorn, "Truman and the Desegregation of the Military," Focus, May 1988, pp. 3-4, 12.

13. See, e.g., Franklin, From Slavery to Freedom, pp. 546-611.

14. Brown v. Board of Education [Brown I ], 347 U.S. 483 (1954). Lawyers often refer to this decision as Brown I to distinguish it from the second Supreme Court decision in the case, rendered in 1955. The second decision, called Brown II (cited as 349 U.S. 294 [1955]), deferred implementation of constitutional rights granted in Brown I by allowing school desegregation to proceed with "all deliberate speed" rather than immediately.

15. See, e.g., Shelley v. Kraemer, 334 U.S. 1 (1948) (Fourteenth Amendment's equal protection clause prohibits state enforcement of ra- soft

cially restrictive covenants in housing); Sweatt v. Painter, 339 U.S. 629 (1950) (African American law students ordered admitted to the all-white University of Texas Law School on the ground that the state law school established for African Americans failed to offer equal educational opportunity); McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637 (1950) (state-imposed restrictions placed on African American graduate students attending an otherwise all-white university produced such inequalities as to offend the equal protection clause); Henderson v. United States, 339 U.S. 816 (1950) (Southern Railway's discriminatory dining-car regulations violated the equal protection clause). For the best account of the legal history leading up to Brown I, see Kluger, Simple Justice .

16. Brown v. Board of Education [Brown II ], 349 U.S. 294, 297 (1955).

17. Robert Carter, "The Warren Court and Desegregation," Michigan Law Review 67 (1968): 247.

18. See, e.g., Thomas R. Frazier, ed., Afro-American History: Primary Sources (New York: Harcourt Brace and World, 1970), p. 368 (quoting from the NAACP Legal Defense and Education Fund's summary argument in Brown I ).

19. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. §§ 1971-2000h-6 [1982]); Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 445 (1965) (codified as amended at 42 U.S.C. § 1971 [1982]); Fair Housing Act of 1968 (Title VIII), Pub. L. No. 90-284, 82 Stat. 81 (1968) (codified as amended at 42 U.S.C. §§ 3601-3619 [1982 and Supp. 1987]).

20. Skelly Wright, "Professor Bickel, the Scholarly Tradition, and the Supreme Court," Harvard Law Review 84 (1971): 769-805.

21. Holmes's maxim is quoted from Oliver Wendell Holmes, Jr., The Common Law, ed. Mark Howe (Cambridge, Mass.: Harvard University Press, Belknap Press, 1963), p. 5. This expression appears in a somewhat different form in an unsigned review of Langdell's Contracts book; see Book Note, American Law Review 14 (1880): 233-236.

The Langdellian syllogism refers to the legal formalism promoted by the famous Harvard Law School dean, Christopher C. Langdell; see Langdell, A Selection of Cases on the Law of Contracts (Boston: Little, Brown, 1871). Not surprisingly, this book received a negative review from Holmes, who was an instrumentalist.

Legal realism, a form of instrumentalism, purports to be a realistic and scientific view of the law, meaning that it: (a) focuses on what judges do rather than on what judges say; (b) is cognizant of the consequences judicial decisions have on the community; and (c) believes all continue

legal institutions operate pursuant to a pleasure-pain calculus in which they attempt to maximize the welfare of the greatest number of individuals within the community. See, e.g., Jerome Frank, Law and the Modern Mind (New York: Tudor, 1930); Karl N. Llewellyn, Jurisprudence: Realism in Theory and Practice (Chicago: University of Chicago Press, 1962). In contrast, legal formalism is primarily concerned with the internal order of law, deductive logic, or what Roberto Unger has called "a restrained, relatively apolitical method of analysis" ("The Critical Legal Studies Movement," Harvard Law Review 96 [1983]: 565).

Various scholars have provided a detailed analysis of legal realism and legal formalism. See Oliver Wendell Holmes, "The Path of the Law," Harvard Law Review 10 (1897): 457-478; this is a restatement and refinement of conclusions worked out by Holmes in The Common Law (originally published in 1881). See also Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven, Conn.: Yale University Press, 1921). Two other books by Cardozo may provide a more definitive statement of his views on legal process and the social end of law: The Growth of the Law (New Haven, Conn.: Yale University Press, 1924); and The Paradoxes of Legal Science (New York: Columbia University Press, 1928). Holmes was a utilitarian; see H. L. Pholman, Justice Oliver Wendell Holmes and Utilitarian Jurisprudence (Cambridge, Mass.: Harvard University Press, 1984). To the extent that Cardozo appeals to considerations of what he calls "social welfare" for guidance in deciding cases, he too can be classified as a utilitarian. In his later books, however, Cardozo seems more metaphysical, perhaps a neonatural law jurisprudent, undertaking a search for generalized principles of law. On utilitarianism, see, e.g., Jeremy Bentham. An Introduction to the Principles of Morals and Legislation (New York: Hafner, 1948); Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986). For a recent defense of legal formalism, see Ernest J. Weinrib, "Legal Formalism: On the Immanent Rationality of Law," Yale Law Journal 97 (1988): 949-1016.

22. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

23. For further discussion of this argument, see, e.g., Owen Fiss, "A Theory of Fair Employment Laws," University of Chicago Law Review 38 (1971): 235-341.

24. See, e.g., Joel J. Kupperman, "Relations Between the Sexes: Timely vs. Timeliness Principles," University of San Diego Law Review 25 (1988): 1027-1041; Roy L. Brooks, "The Affirmative Action Issue: Law, Policy, and Morality," University of Connecticut Law Review 22 1990): 323-372. break