"As a matter of history, the Fourteenth Amendment was not understood to ban segregation on the basis of race"
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Sunstein’s line is a lawyerly ice bath: it drains the moral heat from a question people assume is already settled. By insisting "as a matter of history", he smuggles in a particular kind of authority - not ethical, not aspirational, but archival. The key move is the passive construction: "was not understood". Understood by whom, exactly? Ratifiers? Judges? The public? That ambiguity isn’t a bug; it’s the strategy. It lets the speaker invoke “original” meaning without having to pick one messy, contested historical audience.
The specific intent reads as a caution sign aimed at modern constitutional arguments: don’t pretend the Fourteenth Amendment’s drafters and early interpreters were secretly imagining Brown v. Board. Sunstein, a prominent legal pragmatist, often treats history as one input among many; here, he’s marking a boundary between what the text came to do and what it was initially thought to do. That distinction matters because it destabilizes a common rhetorical shortcut: if segregation is unconstitutional now, then it must have always been.
The subtext is bracing: legitimacy in constitutional law can’t rest only on original expectations, because original expectations were frequently cramped, self-serving, and compatible with Jim Crow. The context is the long fight between originalism and “living Constitution” approaches. By conceding history’s limits, the sentence quietly defends a different kind of legitimacy: constitutional principles that grow beyond their authors, not because judges are unmoored, but because the nation’s commitments were always larger than its immediate willingness to enforce them.
The specific intent reads as a caution sign aimed at modern constitutional arguments: don’t pretend the Fourteenth Amendment’s drafters and early interpreters were secretly imagining Brown v. Board. Sunstein, a prominent legal pragmatist, often treats history as one input among many; here, he’s marking a boundary between what the text came to do and what it was initially thought to do. That distinction matters because it destabilizes a common rhetorical shortcut: if segregation is unconstitutional now, then it must have always been.
The subtext is bracing: legitimacy in constitutional law can’t rest only on original expectations, because original expectations were frequently cramped, self-serving, and compatible with Jim Crow. The context is the long fight between originalism and “living Constitution” approaches. By conceding history’s limits, the sentence quietly defends a different kind of legitimacy: constitutional principles that grow beyond their authors, not because judges are unmoored, but because the nation’s commitments were always larger than its immediate willingness to enforce them.
Quote Details
| Topic | Equality |
|---|---|
| Source | Help us find the source |
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