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


May, 1995

81 Va. L. Rev. 947


Michael W. McConnell *


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 ...
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