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Lepore: Brown v. Board showed courts could be the vehicle for rights when amendment was blocked
Summary
Lepore said that Brown v. Board was a legal strategy of civil-rights advocates who lacked a viable amendment path; the case's focus on children's experience over contested historical evidence marked a break with strict originalist defenses.
Jill Lepore told the Concord audience that Brown v. Board of Education reflected civil-rights lawyers' pragmatic strategy to secure equality through courts when amendments were politically unattainable. She said the NAACP and Thurgood Marshall emphasized present harms—"it's about the experience of children and it's about ongoing inequality"—rather than trying to prove the framers intended desegregation.
Lepore contrasted Brown with contemporaneous pro-segregation historical accounts and described Earl Warren's opinion as dismissive of contested historical claims: "the history is inconclusive. I don't even care. Like, it's about justice." She argued Brown demonstrated how rights claims could proceed without an amendment when political conditions made ratification impossible.
Significance: The episode illuminated the tradeoff civil-rights activists faced between seeking constitutional amendment and using the courts to secure social change.
