If Racial Desegration, Then Same-Sex Marriage? Originalism and the Supreme Court's Fourteenth Amendment‪.‬

I. INTRODUCTION Whatever constitutional scholars may think of Robert Bork's other views, most would agree with his conclusion that "Brown [v. Board of Education] (1) has become the high ground of constitutional theory.... [A]ny theory that seeks acceptance must ... account for the result in Brown" (2) and its progeny. (3) The Brown Court itself disavowed a theory of originalism (or the theory that the original understanding of a constitutional provision is authoritative (4)) in concluding that racially segregated public schools contravene the Fourteenth Amendment; it deemed historical evidence of that Amendment's original meaning "inconclusive." (5) In agreeing that the Brown Court's assessment of history was less than forthright, (6) most scholars go one step further. As Michael McConnell explained recently, "there is something very close to a consensus [among constitutional theorists] that Brown was inconsistent with the original understanding of the Fourteenth Amendment, except perhaps at an extremely high and indeterminate level of abstraction." (7)