Copyright (c) Virginia Law Review Assocation 1995.
Virginia Law Review
RESPONSE: BROWN, ORIGINALISM, AND CONSTITUTIONAL THEORY: A RESPONSE TO PROFESSOR MCCONNELL
81 Va. L. Rev. 1881
Michael J. Klarman *
IS the Supreme Court's decision in Brown v. Board of Education 1 consonant with the original understanding of the Fourteenth Amendment? If "original understanding" is taken to mean the Framers' specific intentions with regard to the practice of school segregation, the overwhelming consensus among legal academics has been that Brown cannot be defended on originalist grounds. 2 Those who have sought to reconcile Brown with the original understanding have done so by elevating the level of generality at which the Framers' intentions are described - for example, by highlighting their decision to employ general equality language rather than to enumerate a list of prohibited practices and protected rights. 3 In an important and provocative recent article, Professor Michael McConnell argues that Brown is susceptible of a more persuasive originalist justification than most commentators have appreciated. 4 Focusing upon the congressional debates surrounding the 1875 Civil Rights Act ("1875 CRA"), 5 McConnell argues that in 1874 a majority of both Houses of Congress evinced support for compulsory school desegregation. Because these debates constitute the most extensive congressional discussion of the school segregation issue during Reconstruction, McConnell contends, they shed important light on the original understanding of the Fourteenth Amendment.
McConnell makes an important contribution to our understanding of congressional attitudes toward school segregation in the 1870s. He demonstrates the existence of far broader support for school integration than many constitutional scholars would have thought likely at this early date. Furthermore, McConnell is persuasive that this congressional support for school ...
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