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Bench Memos

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Brown and Originalism



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Ed Whelan makes a number of good points about the relation between these topics on NRO today. I’ve read the Michael McConnell article to which he refers, however, and am not wholly persuaded. I think there’s another possible answer to be given: A restrained view of judicial power that prevents Brown from taking place also keeps the Civil Rights Cases from taking place either, and allows the federal Congress to stop Jim Crow. If we’re doing counterfactual history, there’s no reason to start it in 1954.



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