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19 Harv. J. L. & Pub. Pol'y 457 (1995-1996)
Originalist Case for Brown v. Board of Education, The

handle is hein.journals/hjlpp19 and id is 473 raw text is: THE ORIGINALIST CASE FOR BROWN V. BOARD OF EDUCATION MICHAEL W. MCCONNELL* During the Bork debacle in 1987, one of the most potent weapons of Judge Bork's adversaries was to claim that his originalist approach to constitutional interpretation would have forced the Court to approve of racially segregated schools in 1954, in Brown v. Board of Education.' It seemed a fair point, or at least one of the fairer points that was made against him. An im- pressive array of academic authorities, from across the ideologi- cal and jurisprudential spectrum-including such figures as Alexander Bickel, Laurence Tribe, Richard Posner, Mark Tushnet, Raoul Berger, Ronald Dworkin, and Walter Burns- had come to the conclusion that under the original understand- ing of the Fourteenth Amendment, racial segregation of public schools was constitutionally permissible.2 Some (Tribe, Dworkin, Tushnet) greeted this as proof that originalism is morally bankrupt; some (Bums, Berger) accepted it, with equanimity, as part of the price we pay for having a consti- tution with determinate meaning that may not always coincide with our moral convictions; and some (Bork, Michael Perry) at- tempted to salvage Brown without abandoning originalism by moving to a higher level of generality, at which it might be said that no matter what the framers of the Fourteenth Amendment may have meant by equal protection or privileges or immuni- ties, the principle is commodious enough to accommodate the decision in Brown. But almost no one questioned the basic prem- ise that, as a historical matter, segregation did not violate the commonly accepted meaning of the Amendment at the time it was drafted and ratified. * William B. Graham Professor of Law, University of Chicago Law School. The author wishes to thank the Arnold and Frieda Shure Research Fund for financial support during the preparation of this Article. 1. 347 U.S. 483 (1954). 2. See e.g., RAOUL BFRGER, GOvERNmENT BYJuDICiARY 117-33, 241-45 (1977); LAUREN CE H. TemE & MicHAEL C. Does, ON READING THE CoNsrrroN 12-13 (1991); Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARv. L. REv. 1, 58 (1955); Richard A. Posner, Bo* and Beethoven, 42 STAN. L. REv. 1365, 1374 (1990); Mark Tushnet, Mhat Really Happened in Brown v. Board of Education, 91 COLUM. L. REv. 1867, 1919 (1991).

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