Earl M. Maltz (Rutgers Law School) has posted Failed Quest: The Unsuccessful Effort to Reconcile Brown With Originalist Theory (American Journal of Law and Equality, forthcoming) (22 pages) on SSRN. Here is the abstract:
In recent years, many prominent originalists have attempted to demonstrate that the holding in Brown v. Board of Education could have been derived from the original meaning of the Fourteenth Amendment. This article, prepared for a symposium marking the seventieth anniversary of Brown, contends that the arguments that have been made by those who take this position are unpersuasive, and that in fact the decision cannot be squared with originalist theory.
Posted at 6:04 AM