ARTICLE: ORIGINALISM AND THE DESEGREGATION DECISIONS Skip over navigation
LexisNexis® Browse Law Reviews and Treatises
Skip over navigation
Sign in with your lexis.com® ID to access the full text of this article.
-OR-
Order the full text of this article if you do not have a lexis.com® ID.
 
Price: 
US $22.00 (+ tax)
 
 

Copyright (c) Virginia Law Review Assocation 1995.
Virginia Law Review

ARTICLE: ORIGINALISM AND THE DESEGREGATION DECISIONS

May, 1995

81 Va. L. Rev. 947

Author

Michael W. McConnell *

Excerpt



Introduction
 
CHIEF Justice Earl Warren's unanimous opinion for the Supreme Court in Brown v. Board of Education 1 made no pretense that its interpretation was an authentic translation of what the Fourteenth Amendment meant to those who drafted and ratified it. The Court described the historical sources as "at best, ... inconclusive." 2 This "at best" carries the strong implication that in the cold, hard eye of objective historical examination, the sources point the other way. Stating that "we cannot turn the clock back to 1868 when the Amendment was adopted," 3 the Court based its decision primarily on the "modern authority" of social science. 4 Brown was arguably the first explicit, self-conscious departure from the traditional view that the Court may override democratic decisions only on the basis of the Constitution's text, history, and interpretive tradition - not on considerations of modern social policy. 5

In the forty years since Brown, legal scholars generally have concluded that the Court did not rely on the historical understanding because it could not. Shortly after the decision, in what remains the leading article on the issue, Professor Alexander Bickel surveyed the events leading up to the ratification of the Fourteenth Amendment and stated that the "obvious conclusion," to which the legislative history "easily leads," is that the Amendment "as originally understood, was meant to apply neither to jury service, nor suffrage, nor anti-miscegenation statutes, nor segregation." 6 A decade later, constitutional historian Alfred Avins wrote an article pointing out that efforts ...
 
 
If you are interested in obtaining a lexis.com® ID and Password, please contact us at 1-(800)-227-4908 or visit us at http://www.lexisnexis.com/.
Search Documents
 
eg., Environmental Insurance Coverage Under the Comprehensive General Liability Policy
 
 
 
 

Lexis® Web - The only search engine that delivers free web content specifically from legal sites validated by LexisNexis® attorney editors and includes tools for faster research and more relevant results.

 
LexisNexis Store
Research Now - Go to lexis.com
Connect the Dots - Free 1 hour webcast
Share. Network. Discover. - Go to LexisNexis Communities