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23 J.L. & Pol'y 591 (2014-2015)
The Problematics of the Brown-Is-Originalist Project

handle is hein.journals/jlawp23 and id is 605 raw text is: THE PROBLEMATICS OF THE BROWN-IS- ORIGINALIST PROJECT Ronald Turner* On May 17, 1954, the United States Supreme Court issued its landmark decision in Brown v. Board of Education. Declaring that in the field of public education the doctrine of 'separate but equal' has no place, the Court determined that we cannot turn the clock back to 1868 when the Fourteenth Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. Over the years, several originalist scholars have noted that an interpretive theory that produces the conclusion that Brown was wrongly decided will have little appeal, and have undertaken the task of demonstrating that Brown can be squared with and justified by originalism. This essay examines and critiques these efforts and focuses, in particular, on one posited attribute and aspect of originalism: the constraint on judges and interpreters. This essay argues that certain originalist methodologies employed in the effort to justify Brown are in fact discretionary in several key respects, and that those answering in the affirmative is Brown originalist? have employed discretionary originalism in ways that are antithetical to originalism's posited discretion-constraining promise. *Alumnae Law Center Professor of Law, University of Houston Law Center. J.D., University of Pennsylvania Law School; B.A., Wilberforce University. The author acknowledges and is thankful for the research support provided by the Alumnae Law Center donors and the University of Houston Law Foundation.

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