This Article examines the view, championed by Justice Scalia, that traditionalism can and should play a dispositive role in constitutional law and adjudication, and applies this view to the outcomes reached by the Court in Brown v. Board of Education and Loving v. Virginia. The author begins by examining Brown and Loving and the traditionalist arguments made to the Court by those who sought to preserve the challenged segregationist policies. He explores Justice Scalia's use of traditionalism in both Due Process and Equal Protection Clause cases, and then applies Scalia's traditionalism to the laws challenged in Brown and Loving. The author argues that the application of traditionalism in these cases would have led to the conclusion that the state sanctioned racial segregation and miscegenation were constitutional. The author concludes that while the constitutional text does not resolve the challenges presented in both Brown and Loving and thus the laws at issue could have survived as matters of law under unmodified Scalian traditionalism, the refutation of entrenched and traditional discriminatory practices was a significant development in our constitutional history.
Were Separate-But-Equal and Antimiscegenation Laws Constitutional?: Applying Scalian Traditionalism to Brown and Loving,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol40/iss1/9