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From 19th-Century View, Desegregation Is A Test

Publication Date: 
November 10, 2009
The New York Times
Adam Liptak

Professor Michael McConnell, an expert in constitutional history and law, is mentioned in the New York Times for his work showing that Congress supported school desegregation after the 14th amendment was ratified in 1954:

If there is a topic Justice Antonin Scalia does not relish discussing, it is how he would have voted in Brown v. Board of Education had he been on the Supreme Court when it was decided in 1954.

The question came up last month at the University of Arizona in what was billed as a conversation between Justice Scalia and Justice Stephen G. Breyer. The discussion, between the court’s two primary intellectual antagonists, bore the relationship to a conversation that a fistfight does to a handshake. The justices know how to get under each other’s skin, and they punctuated their debate with exasperation, eye-rolling and venomous sarcasm.


The most ambitious reconsideration of the historical record was by Michael W. McConnell, now a law professor at Stanford, in the Virginia Law Review in 1995. Drawing mostly from Congressional debates a few years after the 14th Amendment was ratified, Professor McConnell showed that there was substantial support, in Congress at least, for school desegregation. But he conceded that segregation “almost certainly enjoyed the support of a majority of the population even at the height of Reconstruction.”