QUESTIONING BROWN V. BOARD OF EDUCATION. Justice Souter gave last year’s Commencement Address at Harvard. He had a great deal to say about the complexities of interpreting the Constitution, but I want to focus on what he had to say about the school desegregation case: “For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision. Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional.” This should be startling. And yet, in a way I am not surprised that Justice Souter would speak questioningly of Brown. He went to Harvard Law School in the class of 1966 (Brown had been decided in 1954). I was in the Harvard Law School class of 1968. During that period, admired professors at Harvard were still speaking ill of the reasoning in Brown. And not just at Harvard. In 1959, Professor Herbert Wechsler of Columbia Law School, one of the most admired legal scholars in the country, gave the prestigious Holmes Lecture at Harvard, entitled “Toward Neutral Principles of Constitutional Law.” In the lecture, he criticized the reasoning of Brown and asserted that the only basis for attacking the constitutionality of segregation was as a violation of the constitutional right of freedom of association, but that he could not yet be able to write an opinion to that effect.

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