TITLE

THE PROBLEMATICS OF THE BROWN-IS-ORIGINALIST PROJECT

AUTHOR(S)
Turner, Ronald
PUB. DATE
March 2015
SOURCE
Journal of Law & Policy;2015, Vol. 23 Issue 2, p591
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
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.
ACCESSION #
109139263

 

Related Articles

  • BROWN V. BOARD OF EDUCATION TURNS SIXTY. Allen, Jeffrey // GPSolo;Nov/Dec2014, Vol. 31 Issue 6, p4 

    The article reflects on the U.S. Supreme Court's case Brown v. Board of Education. It mentions that the U.S. Supreme Court addressed the issue of segregation in the schools in the case. It discusses the impact of the court's decision in the case which acted as catalyst for major political,...

  • The Meaning of Equal Protection Then, Now, and Tomorrow. Persily, Nathaniel // GPSolo;Nov/Dec2014, Vol. 31 Issue 6, p12 

    The article focuses on the Equal Protection Clause under the U.S. 14th Amendment following the decision in the U.S. Supreme Court case Brown v. Board of Education. Topics discussed include the classification approach for equal protection which focuses on the bases for discrimination, evolution...

  • Separate but Equal? Price, Sean // New York Times Upfront;02/19/2001, Vol. 133 Issue 12, p23 

    Part II. Recalls the United States Supreme Court decisions about race. Background information on so called 'Jim Crow' laws; Historic change of mind by the Court in 1954; Precedent set by 'Plessy v. Ferguson' and 'Brown v. Board of Education.'

  • SCHOOL SEGREGATION IN THE USA. Rathbone, Mark // History Review;Dec2010, Issue 68, p1 

    The article discusses the history of school segregation in the United States, with particular reference to famous court cases. Topics discussed include: the 1849 Massachusetts case "Roberts v. City of Boston"; the 1896 U.S. Supreme Court (USSC) case "Plessy v. Ferguson"; the 1954 USSC case...

  • Brewing Up a Storm. Hill, Nicholas; Ling, Peter // History Today;Oct2006, Vol. 56 Issue 10, p38 

    In this article the authors examine the issue of abortion as it stood in the United States in 2006. They note that 2 abortion rights cases are awaiting rulings by the Supreme Court and state that the high court may overturn abortion rights guaranteed under Roe v. Wade. Historic Supreme Court...

  • Brown v. Board of Education: 1954. Christianson, Stephen G. // Great American Trials;2003, p466 

    The article discusses the decision of the U.S. Supreme Court case Brown v. Board of Education in 1954. The appeal was filed by several parents of African-American children of elementary school age in Topeka, Kansas. The court held that segregated schools violate the equal protection clause of...

  • The Court System and Subversion of Democracy. LEVINE, ROBERT A. // Moderate Voice;11/25/2013, p16 

    The article discusses the problems associated with court system in the U.S. that result in its conflict with democratic values. The topics discussed include tenure of appointed judges in the country, the U.S. Supreme Court cases including Brown v. Board of Education of Topeka and Plessy v....

  • TOWARD A FUTURE, WISER COURT: A BLUEPRINT FOR OVERTURNING DISTRICT OF COLUMBIA V. HELLER. Aborn, Richard; Koury, Marlene // Fordham Urban Law Journal;Oct2012, Vol. 39 Issue 5, p1353 

    The article discusses the role of dissenting opinions concerning the U.S. Supreme Court case District of Columbia v. Heller which can help to provide wiser Courts in future in the U.S. It analyzes several U.S. cases including Plessy v. Ferguson and Brown v. Board of Education related to racism...

  • JUDGING IN A VACUUM, OR, ONCE MORE, WITHOUT FEELING: HOW JUSTICE SCALIA'S JURISPRUDENTIAL APPROACH REPEATS ERRORS MADE IN PLESSY V. FERGUSON. Edelson, Chris // Akron Law Review;2012, Vol. 45 Issue 2, p513 

    The article presents information on the decision of the U.S. Supreme Court in Plessy v. Ferguson. The decision acts as a reminder that the nation's most prestigious legal institution favored a system of racial segregation for a century after the Civil War and passage of the Fourteenth Amendment...

Share

Read the Article

Courtesy of THE LIBRARY OF VIRGINIA

Sorry, but this item is not currently available from your library.

Try another library?
Sign out of this library

Other Topics