Washington University Jurisprudence Review
This article examines Justice Antonin Scalia and Bryan Garner’s originalist justification of Brown v. Board of Education in Reading Law, concluding that their analysis is flawed in at least three respects: (1) their interpretation that the texts of the Thirteenth and Fourteenth Amendments prohibited all white-supremacist and separationist laws is atextual, acontextual, and ahistorical; (2) their invocation of Justice Harlan and his Plessy dissent does not support, but actually cuts against their understanding of the original understanding; and (3) relying on a single and critiqued article, with no reference to that criticism, they fail to support their conclusion that recent research establishes that Brown is consistent with an originalist understanding.
Justice Antonin Scalia’s Flawed Originalist Justification for Brown v. Board of Education,
9 Wash. U. Jur. Rev. 179
Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol9/iss2/5