Bench Memos

Andy vs. Ramesh

Andy McCarthy has now completed his very thoughtful three-part response to Ramesh Ponnuru’s June 23 op-ed in the New York Times.  I think it’s fair to say that their disagreement comes down to which version of legal history is more compelling regarding the original understanding of the Fourteenth Amendment–Andrew Kull’s 1992 book The Color-Blind Constitution, or Michael McConnell’s 1995 Virginia Law Review article, “Originalism and the Desegregation Decisions.”  It’s been a while since I’ve read either one, but I remember not being talked into disagreeing with Kull when I read McConnell.  Readers interested in further study of this question should read both of them–as well as the response to McConnell in the Va.L.R. by Michael Klarman, and McConnell’s rejoinder.  McConnell has produced the best originalist defense of Brown’s result, but is it good enough?  Maybe the Supreme Court will tell us what it thinks one of these days.