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103 Northwestern University Law Review 63 (2009)


The sun is setting on the civil rights revolution. Over the last decades, the constitutional meaning of this egalitarian breakthrough has been interpreted by lawyers and judges who lived through the struggles of the 1950s and 1960s. But as the profession moves into the twenty-first century, Earl Warren and Martin Luther King, Jr., John F. Kennedy and Lyndon Johnson are receding into history. If members of the rising generation are to interpret the constitutional contributions of the fading past, their lived experience will no longer enable them to place particular achievements within a larger historical context. They will be obliged to select some canonical texts as representative of the civil rights revolution and use this canon to interpret the enduring meaning of this twentieth-century breakthrough. Just as modem lawyers read the original Constitution, the Federalist Papers, Marbury, and McCulloch to gain a sense of our early beginnings, they must formulate a similar canon if a new generation is to interpret the achievement of its immediate predecessors. But which texts should we select? Brown is obviously one, but what are the others? The choice is critical: While a few lucky historians may spend a happy lifetime exploring the archives, lawyers and judges can afford no such luxury. They are in the business of litigating and deciding cases: The achievements of the past must be packaged into a readily available form for the very busy men and women who are charged with sustaining our constitutional tradition. Canonization is a professional necessity. Once a text is admitted into the canon, it will be open to a variety of interpretations, as the history of Brown suggests. Nevertheless, the profession's choice of canonical texts will shape profoundly the overall character of the ongoing interpretive effort--determining what we see, and don't see, as we argue about the constitutional significance of the twentieth century.

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