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2014 Mich. St. L. Rev. 429 (2014)
Originalism and Brown v. Board of Education

handle is hein.journals/mslr2014 and id is 469 raw text is: ORIGINALISM AND BROWN V BOARD OF EDUCATION Steven G. Calabresi* & Michael W. Perl** 2014 MICH. ST. L. REV. 429 TABLE OF CONTENTS IN TR O D U C TIO N ............................................................................... 4 30 I. THE FOURTEENTH AMENDMENT ONLY PROTECTS FUND AM ENTAL RIGHTS ........................................................... 440 A. The Three-Quarters of the States Test and Fundam ental R ights ......................................................... 44 1 B. Limitations of the Three-Quarters-of-the-States Test ..... 446 II. THREE-QUARTERS OF THE STATES RECOGNIZED A RIGHT TO A PUBLIC SCHOOL EDUCATION BOTH IN 1868 A N D IN 19 5 4 ............................................................................. 4 4 9 A. The Right to a Public School Education in 1868 ............ 450 1. State Constitutional Provisions Regarding E ducation in 1868 ..................................................... 450 2. Evidence Suggesting that Education Was Not a Fundamental Right in 1868 ...................................... 463 a. Southern State Practices Regarding S egreg ation ......................................................... 4 63 b. Compulsory School Attendance Laws ............... 467 B. Changes in the State Constitutional Provisions Regarding Education Between 1868 and 1954 ............... 469 1. State Constitutional Provisions Granting the Right to a Public School Education in Force in 1 9 5 4 ...................................................................... 4 7 1 * Professor of Law, Northwestern University; Visiting Professor of Political Science, Brown University. Professor Calabresi dedicates his work on this Article to Yale Law School Professor Bruce Ackerman from whom he has learned so much as a teacher, a scholar, and a friend. ** J.D., Class of 2004, Northwestern University School of Law; B.S., Finance, 2000, Yeshiva University. This Article arose from a senior research project conducted by Michael Perl for Professor Calabresi during the 2003-04 academic year at Northwestern University School of Law. Mr. Perl's research was limited to the historical right to a public school education and accordingly Mr. Perl's views in this Article are limited to that which relates to public school education. We would like to thank Pegeen Bassett for her extraordinary help as a research librarian.