A footnote on Brown

The principle of equal treatment without regard to race is one that is close to my heart. Accordingly, one of my favorite books on a legal subject is Andrew Kull’s history The Color-Blind Constitution, a book I learned of at the time of its publication through Judge Alex Kosinski’s 1993 New Republic review/essay.

Professor Kull devotes two chapters to the separate but equal doctrine approved by the Supreme Court in the 1896 case of Plessy v. Ferguson. The case represents the bygone era of Jim Crow, yet at the outset of his discussion of the case Professor Kull makes this astounding observation: “The majority opinion in Plessy makes a comfortable target, and it is routinely vilified. But in its broad holding, as opposed to its particular application, Plessy has never been overruled, even by implication. On the contrary, it announced what has remained ever since the stated view of a majority of the Supreme Court as to the constitutionality of laws that classify by race.”

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