St. Louis University School of Law
It is an honor and a pleasure to ponder Cooper v. AaronI and the legacy of Brown v. Board of Education2 in general and to respond to David A. Strauss's wise and insightful Childress Lecture3 in particular. I want to address three topics. The first two are encapsulated in my title: Rewriting Brown, Resurrecting Plessy. I'll examine the widespread phenomenon of "rewriting Brown." And I'll document what I shall call "resurrecting Plessy": the phenomenon, evident in both liberal and conservative scholarship and opinions, of charging one's opponents with repeating the mistakes of Plessy v. Ferguson.4 I'll illustrate the liberal version by charging Justice Clarence Thomas with resurrecting Plessy.5 Then I'll demonstrate the conservative version by showing how Thomas charges Justice Stephen Breyer with resurrecting Plessy.6 My third topic will be Cooper in relation to Strauss's well-known theory of common law constitutional interpretation. 7 I'll argue that such a theory needs a clearer distinction than he has provided between the Constitution itself and what the Supreme Court has said about the Constitution in order to be able to criticize Plessy as wrongly decided and to justify Brown as rightly decided.
James E. Fleming,
Rewriting Brown, Resurrecting Plessy
St. Louis University Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2836