and in response, ervin, senator ervin replies with a grin, and he says, "i don't see how you can disagree with me." okay, so, flash forward another few years into 1984 now. obviously, senator ervin is still a senator. he writes his autobiography. it's called "preserving the constitution." and he says in 1984, exactly three decades after brown versus board of education, that he has given what he refers to as the civil war amendments primacy of study. he's really rolled up his sleeves and he has now come to the conclusion that brown versus board of education was correctly decided in the first instance. and he goes on to say, he says, "the constitution is colorblind as the first justice john marshall harlan maintained in his dissent in plessy and requires the states to ignore the race of school children in assigning them to their public schools." right? brown versus board of education forbids the consideration of race when you are assigning people to public schools. this is an effort, again, a backup effort to tame and to drain the meaning of brown. so, while he's speaking of voluntary segre

it sounds somewhat similar to what ervin said years earlier.on the color of their skin. and these programs tell students where they can and cannot go to school. and paraphrasing, based on the color of their skin. that matters not one whit for constitutional purposes that in the bad old days, people did that to keep people apart, and for black people, racially subordinated. in the modern plans, they were trying to keep people together. that mattered not one whit as a constitutional proposition. he goes on to say that the old people of race consciousness finds uncomfortable echoes in these modern plans. he says when it comes to using race to assign children to schools, history will be heard. that line, history will be heard, drew substantial scholarly. critics have contentedly offered a severely decontextualized version of brown and ignored the system that brown v. board of education challenged. viewed through this prism, this criticism, in my view, hits the mark. in an important sense, though, chief justice roberts'opinion was correct in contend

one of the main people was senator sam ervin. he was a justice on the north carolina supreme court. these folks were not quite as legally sophisticated as the arguments they advanceadvanced. many people cite it with just the first seasons. the unwarranted case in the supreme court is bearing the fruit when men substitute naked power for established law. the phrase naked power -- even the most opener -- >>> they use the same language about naked power with respect to brown versus board of education. so focusing on that language alone it sort of allows people to misunderstand what was at the core of the limit. they use constitutional interpretation. they spoke about originalism, they spoke about precedent, they spoke about constitutional construction and tradition. these are, today, what constitutional law professors refer to as the modality. these are the basic forms of constitutional interpretation and all of them appear. i asked students to identify the forms of argument. the first in this dominant mode is they say that the decision in brown betrayed the original understanding of t