It is often said that a theory of constitutional interpretation is not much of a theory if it cannot account for Brown v. Board of Education, 347 U.S. 483 (1954), the 60th anniversary of which we celebrate this year. Whether voiced by a judicial nominee, politician, law professor, or advocate, an argument that interprets the Equal Protection Clause as allowing official segregation is simply a nonstarter today. As momentous as that case was for starting the constitutional ball rolling toward full and equal citizenship for all Americans regardless of their race, Brown is now also a litmus test for what the Constitution, and especially the Equal Protection Clause, actually means.
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