Brown v. Board of Education was a landmark decision, rendered on non-Originalist premises. Given that everyone agrees on the importance and correctness of the decision - how does an Originalist consider this case?
Professor Michael McConnell argues that the same correct result could have been obtained by Originalist methods. Professor McConnell has extensively studied the history of the Fourteenth Amendment, and its interpretation and enactment by Congress in the 1870s. The Congress tried but failed to pass desegregation of schools before the final Civil Rights Act of 1875. Professor McConnell believes that if the Supreme Court of 1954 had been sufficiently aware of this history, they could have used Originalist arguments to eliminate segregated schools.
Michael William McConnell is a constitutional law scholar who served as a United States Circuit Judge of the United States Court of Appeals for the Tenth Circuit from 2002 until 2009. Since 2009, McConnell has served as Director of the Stanford Constitutional Law Center at Stanford Law School.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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