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“Wrong the Day It Was Decided:" Lochner and Constitutional Historicism, 85 B.U. L. Rev. 677 (2005)


“[W]e think Plessy [v. Ferguson] was wrong the day it was decided,” the Joint Opinion of Justices O’Connor, Kennedy, and Souter declared in Planned Parenthood of Southeastern Pennsylvania v. Casey. Plessy, the Joint Opinion explained, had asserted that state enforced separation of the races had nothing to do with racial oppression, and that the perceived offense was merely the fantasy of hypersensitive blacks. This was simply wrong in 1896, and the claim became even more obviously wrong as the years progressed. Therefore it was completely appropriate for the Court to overrule Plessy in 1954 in Brown v. Board of Education.

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