Jill Lepore

If we were to constantly defer to the history and tradition of this country, we as a court could only ever reinstantiate racial divisions.

We could never free the people from them.

And so he just like, let's start again.

And that's

There's this guy I've never seen him really written about by legal scholars, but his name is David J. Mays, who was a Virginia lawyer and quite talented historian.

He won the Pulitzer Prize in 1953 for a biography of Edmund Pendleton, who was an 18th century Virginian.

Mays actually does the historical research for the segregation side of the argument in Brown v. Board of Education.

And he's really pissed off when Earl Warren says, the history is inconclusive.

Because Mays is like, no, it's not.

I did the history.

The history says the framers of the 14th Amendment did not intend for black and white children to go to school together.

They did not intend to be banning segregated schools.

And so...

He's the architect of what is called massive resistance in the South, which is just refusing to enact desegregation.

in addition to being the architect of massive resistance, he starts writing about what he describes as the question of intent and insisting that the only way to understand the Constitution is to defer to the original intent of the framers of any constitutional provision.

And he testifies before Congress on this point.

And he really elaborates these ideas that get picked up in the late 60s by Robert Bork.

So he is kind of a missing link between the Brown case and what becomes the Borkian argument in 1971.

And again, like, not to say originalism is, you know, a rejection of the Brown decision.

It is...