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The Democratic ConstitutionExperimentalism and Interpretation$
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Brian E. Butler

Print publication date: 2017

Print ISBN-13: 9780226474502

Published to Chicago Scholarship Online: January 2018

DOI: 10.7208/chicago/9780226474649.001.0001

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Brown and Obergefell: Two Positive Precedents?

Brown and Obergefell: Two Positive Precedents?

Chapter:
(p.151) Chapter Seven Brown and Obergefell: Two Positive Precedents?
Source:
The Democratic Constitution
Author(s):

Brian E. Butler

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226474649.003.0008

Chapter 7 analyzes two cases generally thought of as exemplary of the Supreme Court protecting or even progressively expanding civil rights protected under the Constitution. Brown and Obergefell are thought of by liberal theorists as examples of the Court getting things right. Of course they are also thought of as not grounded in the Constitution by conservative legal theorists. Brown famously overruled the “separate but equal” doctrine of Plessy v. Ferguson. Obergefell found a constitutional right to same-sex marriage. Interestingly, though the results are disputed by legal theorists, they are also thought by both sides of the debate to be examples of the Court properly understanding its role as supreme interpreter of the Constitution. This chapter challenges that interpretation. It presents Brown as an information-rich decision that exemplifies much that is required of democratic experimentalism. It presents Obergefell as arriving at the correct legal conclusion, but through a roundabout way that could have been better justified if the Court utilized the jurisprudence of democratic experimentalism. Posner’s opinion, Baskin v. Bogan is offered as a better option.

Keywords:   Brown v. Board of Education, Obergefell, Plessy v. Ferguson, separate but equal, same-sex marriage, Posner, Baskin v. Bogan

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