Sen. Lindsey Graham of South Carolina asked Solicitor General Kagan how Brown v. Board of Education could have been consistent with a doctrine of strict constructionism.
Because the American people are happy that segregation is a bygone practice, he said, Americans are generally happy that the Court reached the decision it did in Brown.
But, of course, as Harvard Law School professor Michael Klarman pointed out in his Bancroft Prize-winning From Jim Crow to Civil Rights, Brown did not end segregation.
And, as Judge Richard Posner, Czar Cass Sunstein, and numerous others have pointed out, Brown is inconsistent with originalism – with the Constitution as the people ratified it.
In sum: Brown was unconstitutional, and it did not have the happy result with which it is usually credited. While it did not end segregation – congressional legislation a decade later, particularly the perfectly constitutional Voting Rights Act of 1965, did that – the idea that it ended segregation DID besmirch originalism. It DID give a patina of moral rightness to the Court’s seemingly never-ending campaign to substitute its view of what is good and true for laws made by elected representatives, primarily at the state level.
Someone please break the news to Lindsey Graham.
