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Bench Memos

NRO’s home for judicial news and analysis.

Let’s Be Franck About Will



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I do not know what to make of George Will’s Thursday column. I am willing, though, to defer to Matt Franck and his “impish” read of it, as a send-up of liberal pabulum on the Constitution. I am willing because deferring to Matt is usually good policy and because, well, I don’t know what to make of Will’s column.

Two things I do know have to do with “originalism,” the Fourteenth Amendment, and race discrimination — Plessy, Brown and all that. We will never understand what the relevant history has to tell unless we first understand that the framers and ratifiers of that Amendment meant, intended, and expected that Congress — not the Court — would be the primary guarantor of its protections. And we know this, too: The “original understanding” of the Equal Protection Clause included the understanding that Congress (at least) could outlaw racial segregation in the states — as the debates over various civil rights proposals through Reconstruction make quite clear.



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