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This article is part of a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education. In this article, the author addresses the question of what opinion he would have written had he been a justice on the U.S. Supreme Court when the case was decided.

The author indicates he would have concurred in those opinions finding a violation of the Equal Protection Clause of the Fourteenth Amendment in Brown v. Board of Education. The author finds persuasive the argument that any other decision would permit states to evade the core purpose of the Fourteenth Amendment. Nevertheless, the author would have written separately to indicate why he would join in this judgment even if he remained unpersuaded that the evidence from the historical context of the Fourteenth Amendment demonstrates that the Equal Protection Clause was intended to invalidate segregated schools. It strikes as quite unnecessary, whatever one's conclusions about the weight of the historical evidence, to fashion any extraconstitutional principle with which to decide the case. The author would have written to clarify why such an approach is reconcilable with the emphasis in Marbury v. Madison placed on the idea of a fixed Constitution and why such an approach does not lend support to methods of constitutional interpretation that would undermine this foundational concept of our constitutionalism.

Publication Citation

20 S. Ill. U. L.J. 99 (1995).