The 59th anniversary of Brown v. Board of Education should recall what that great decision did not do—overturn the racial segregation precedent of Plessy v. Ferguson (1896). Only by revisiting Justice Harlan’s classic dissent would segregation and Jim Crow in the law be finally overcome. Moreover such a Court opinion in Brown would have given civil rights laws a principled dignity and as well promoted an originalist jurisprudence that both protected individual rights and restrained government. This jurisprudence would be based on the Declaration of Independence.
Indeed, the brief for Homer Plessy argued that “The Declaration of Independence … is not a fable as some of our modern theorists would us believe, but the all-embracing formula of personal rights on which our government is based.” It is the “controlling genius of the American people.” And prior to the Plessy setback, as Charles Lofgren shows in his meticulous The Plessy Case (1987), this argument helped win anti-segregation suits at the state level.