I love this sort of article.
Brown presents originalists with a problem. The weight of the historical evidence is that the people who drafted, proposed and ratified the 14th Amendment from 1866 to 1868 did not believe themselves to be doing away with segregated schools. Yet Brown is widely thought to be a moral triumph. A theory of constitutional interpretation that cannot account for Brown is suspect if not discredited. Originalists hate the subject. Justice Scalia has called it “waving the bloody shirt of Brown.” More...
Tuesday, November 10, 2009
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