In my post yesterday, I responded to Dr. Roberts’ claim that “The Brown decision was NOT based on the 14th amendment” by quoting the decision, which was indeed extensively based on the Fourteenth Amendment.
Fortunately, Larry Solum, who has more to say on the subject, also pointed out that the appellants’ briefs, the U.S. government’s brief, and the oral argument transcript are available online. This lets one check the accuracy of these claims of Dr. Roberts:
Dear Mr. Volokh: You are obviously unfamiliar with the case. You could read the case. You could read my account with Stratton in The New Color Line, or you could read a number of other accounts. Harvey Silverglate, a noted civil libertarian, for example, believes that Brown could have been argued as a 14th amendment case, although he understands that it was not.
In my own opinion, your opinions on these issues outrun your knowledge.
I recommend that you read the New Color Line. Brown was not argued as a 14th amendment case, because the Justices and Ellman in the DOJ, all of whom wanted to get rid of segregation, were convinced that it could not be done on the basis of the 14th amendment. You can read their own words. This is generally known, not some claim unique to me. What I have noticed among the younger generation of professors is PC opinions that do not rest on knowledge. That is your problem with the Brown case. . . .
If any of you are interested, you can find the appellants’ brief here. Look at it and see if it is accurate to assert that “Brown was not argued as a 14th amendment case.” You can find the U.S. government’s brief here. Look at it and see how the Justice Department relied on the Fourteenth Amendment. (Note that since that particular amicus brief also dealt with Bolling v. Sharpe, a federal case that turned on the Fifth Amendment, the government talks about the Fourteenth Amendment, the Fifth Amendment, and the “separate but equal” doctrine generally — a doctrine that was clearly understood as being a Fourteenth Amendment doctrine.)
Check out also the oral argument transcript. By my count, the phrase “Fourteenth Amendment” appears 103 times in the transcript. Look at Spottswood Robinson’s opening argument, just up until the first question — it’s all about the Fourteenth Amendment.
Is Dr. Roberts accurate in saying “Brown was not argued as a 14th amendment case”? Is he accurate in saying that he is speaking “truth to myth”?
What I have noticed among the younger generation of professors is PC opinions that do not rest on knowledge. That is your problem with the Brown case. I am sorry to be rude, but I do think your insinuations that I am some kind of nazi for speaking truth to myth are worse than rude.
Or are his assertions themselves based on myth?
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