American Constitutionalism in Historical Perspective (packet)

Edmund Kahn: making moral principle contingent on social science rather than principle is faulty because social scientist can be found to support the other side, also limits application to other areas. Pseudo-science was used to justify racism.

Weschler: Brown was unprincipled decision, offers 4 views for how the opinion might have been decided and dismisses all of them.

1. 
   Prob whenever state deprives Americans of fundamental rts: opinion extended to swimming pools which isn’t fund. Rt so c/n be principle of Brown
   
2. 
   Racial classifications: affirmative action problematic which ameliorates racist history (Bickel says this is the principle and affirmative action is unconstitutional)
   
3. 
   Motivation of the invidious classification is irrational prejudice: explains Brown and affirmative action but not ready to apply this to gender (too sensitive a motive)
   
4. 
   Abridges associational liberty: Brown protects the liberty of parents who want their children to go to school together, but privileges these parents over those who d/n want this. Weschler picked this as the most likely ground for the decision.
   

Bolling v. Sharpe, 1954: p. 676 extended Brown from the states to federal law. Racial segreg in District of Columbia public schools violated DP clause of 5^th A. Criticized by Ely b/c:

1. 
   When Reconstruction congress wanted to limit the fed govt it knew how to do so. The 14th A is by its terms limited to the states.
   
2. 
   No textual/historical basis to extend to fed gov’t-only distrusted states to effect sound principles
   
3. 
   Court: unthinkable that this conception of justice under 14th A w/n inform the conception of justice under DP clause of 5th A. Massive shift and new conception of const justice.
   

Leads to a number of per curiam opinions in which it extends the principle of Brown to a number of public facilities using apartheid. Any state or federal endorsement of separate but equal is unconstitutional: swimming pools, golf courses etc.

Implementation p. 697 Brown v. Bd of Ed II: court re-enters this area after lower courts have been unsuccessful in implementing the decision. Struggling to create a principled jurisprudence.

1.