Table of Contents
Brown v. Board of Education - Living Constitutionalism - Viewpoint
Living constitutionalists hold that Brown v. Board of Education (1954) represents not a jurisprudential anomaly or an act of judicial overreach, but the constitutional order functioning as it was always meant to function - adapting the meaning of enduring principles to changing social realities and accumulated moral knowledge. From this viewpoint, the Warren Court's unanimous decision striking down racially segregated public schools was not only correct but exemplary: a demonstration that the Constitution's commitments to equality and liberty must be read in light of the present rather than frozen in the assumptions of the past.
Core Arguments and Premises
The Constitution Enshrines Principles, Not Frozen Applications
Living constitutionalists argue that the Fourteenth Amendment's Equal Protection Clause was not ratified as a codification of 1868 attitudes toward racial segregation, but as a statement of a general principle - that no person shall be denied equal protection of the laws. The specific applications of that principle, they contend, are properly worked out over time as society develops new understanding of what equality actually requires. On this view, the relevant question is not what Congress or the ratifying states thought about segregated schools in 1868, but what equal protection means given what we know now.
Chief Justice Warren's opinion for the Court took precisely this approach. Rather than adjudicating the original expected applications of the Fourteenth Amendment, the opinion asked what effect segregated schools had on black children in the mid-twentieth century - and answered that question with reference to social scientific evidence, including the psychological research associated with Kenneth and Mamie Clark's doll studies. Living constitutionalists regard this methodological choice not as a deviation from legal reasoning but as an example of it: constitutional interpretation that takes facts seriously.1)
Original Intent Cannot Do the Work Originalists Demand
A central living constitutionalist argument in the context of Brown is that originalism - at least in its original-intent or original-expected-applications form - cannot coherently justify the result without significant modification. The historical record is genuinely ambiguous: the Congress that passed the Fourteenth Amendment also maintained segregated schools in the District of Columbia, and the same Congress that ratified the amendment funded segregated educational institutions. Taken at face value, this evidence suggests that many framers of the amendment did not understand it to prohibit segregated public schools.2)
Living constitutionalists take the originalist difficulty with Brown as a reductio ad absurdum of strong originalism: any interpretive theory that struggles to justify Brown has produced a result that discredits the theory, not the decision. If the Constitution's meaning cannot grow, they argue, the document becomes an instrument for perpetuating injustices that its own best principles condemn.
Plessy Was Wrong Because It Misdescribed Reality
Living constitutionalists often argue that Plessy v. Ferguson (1896) erred not merely as a moral matter but as an interpretive one: the majority's assertion that “separate but equal” did not stamp black citizens with a badge of inferiority was, as Justice Harlan's dissent recognized, a factual and legal fiction.3) What Brown did, on this account, was correct the record. By the time the Warren Court took up the question, half a century of documented experience had confirmed what Harlan said in 1896: state-enforced separation was not a neutral classification but a system of subordination. Living constitutionalists thus frame Brown not as the Court imposing new values on the Constitution, but as the Court finally taking seriously values already present in it.
The Role of Moral Learning
More broadly, living constitutionalists argue that constitutional interpretation must be open to moral learning. Practices once widely accepted - not only racial segregation but slavery itself, denial of women's suffrage, criminalization of interracial marriage - were later recognized as incompatible with constitutional commitments. The capacity to recognize and correct such errors, they argue, is not a weakness of living constitutionalism but its principal virtue. A constitution that cannot accommodate accumulated moral knowledge becomes an obstacle to justice rather than its instrument.
Ronald Dworkin gave systematic philosophical expression to this view, arguing that constitutional provisions like the Equal Protection Clause are best understood as expressions of abstract moral principles whose correct application must be worked out through principled reasoning, not historical excavation.4)
History and Development of the Viewpoint
Living constitutionalism as a jurisprudential stance developed in the early twentieth century, associated initially with Progressive Era thinkers who argued that courts applying a static constitutional vision were obstructing legitimate democratic reform. Justices Oliver Wendell Holmes and Louis Brandeis gave early judicial expression to the view that the Constitution was not intended to embody a particular economic or social theory, but to provide a framework adaptable to changing conditions.5)
Brown became a touchstone for living constitutionalists not immediately but over time, as originalists began to deploy the decision as a challenge to their critics. When Robert Bork and others argued in the 1970s and 1980s that originalism was the only legitimate method of constitutional interpretation, critics pressed the Brown problem: could originalism justify the result? The resulting debate sharpened living constitutionalist arguments and elevated Brown to near-canonical status in constitutional theory on both sides.
Kathleen Sullivan, Laurence Tribe, and others developed the living constitutionalist case in academic literature through the late twentieth century, while practitioners associated with the NAACP Legal Defense Fund had already embodied many of its premises in the litigation strategy that produced Brown itself - a strategy explicitly designed to demonstrate, through accumulated evidence, that the factual predicate of Plessy was false.6)
Notable Proponents
Earl Warren - Chief Justice of the United States (1953-1969). Author of the unanimous Brown opinion. Warren's approach - grounding constitutional interpretation in contemporary evidence and rejecting reliance on the original understanding of 1868 - became a model for living constitutionalist methodology.
William J. Brennan, Jr. - Associate Justice (1956-1990). Brennan articulated an explicit and influential living constitutionalist jurisprudence, arguing that the Constitution's majestic generalities must be interpreted to apply with full force to modern conditions.7)
Ronald Dworkin - Legal philosopher and author of Taking Rights Seriously (1977), A Matter of Principle (1985), and Freedom's Law (1996). Dworkin provided living constitutionalism with its most systematic philosophical foundation, arguing that judges must interpret constitutional provisions by identifying the best moral principles they express.
Laurence Tribe - Harvard Law professor and author of American Constitutional Law, the leading academic treatise in the field. Tribe has argued throughout his career that Brown exemplifies the Court's proper role in enforcing constitutional principles against majoritarian injustice.8)
Thurgood Marshall - Lead counsel in Brown before the Supreme Court, later Associate Justice (1967-1991). Marshall's litigation strategy was itself a form of living constitutionalism in practice: he constructed a factual record demonstrating that the separate-but-equal doctrine was empirically bankrupt, inviting the Court to update its interpretation in light of demonstrated reality.
Internal Debates
Living constitutionalists are not a monolithic school, and several genuine disagreements run through the tradition.
Moral Reading vs. Democratic Living Constitutionalism
Dworkin's “moral reading” approach holds that judges should identify the best moral interpretation of constitutional principles, even when this requires conclusions that majorities reject. Other living constitutionalists, associated more with Cass Sunstein's minimalism or James Bradley Thayer's deference tradition, are uncomfortable with the degree of judicial discretion Dworkin's approach entails. They favor narrower rulings that leave as much as possible to democratic resolution, and would justify Brown on more modest grounds - for instance, as a correction of irrational racial classification - rather than as an instance of the Court deriving correct moral conclusions from first principles.9)
The Social Science Question
Warren's Brown opinion famously cited Kenneth Clark's doll studies and other social scientific evidence for the proposition that segregation caused psychological harm to black children. Some living constitutionalists endorse this methodological move wholeheartedly; others are more cautious, noting that social scientific findings are revisable and that grounding constitutional decisions in them creates doctrinal instability. This internal tension has grown more pronounced as some of the specific studies cited in Brown have faced methodological criticism.10)
Scope of Brown's Principle
Living constitutionalists also disagree about the reach of Brown's underlying principle. Some argue that the decision's logic extends broadly to any state classification that stigmatizes or subordinates a group; others read it more narrowly as addressing the specific history of de jure racial segregation. These disagreements have concrete implications for affirmative action, school integration remedies, and other contested applications.