A Dialogue (with Akhil Amar), 115 Yale Law Journal 2015 (2006)
Jed Rubenfeld: Akhil, you and I have a great deal in common, but also some fundamental differences, at least in principle. Equal protection doctrine might provide a good backdrop to make these differences clear. When it comes to Brown v. Board of Education, our disagreements are not of a fundamental nature. You're inclined to be much more accepting than I of the claim that the Fourteenth Amendment was originally understood to bar racial segregation (at least of some kinds), so you don't see Brown as the revolutionary case that many of us do. I take Brown to be a clear case of the rejection of an original No Application Understanding; you don't. But this is not a fundamental disagreement because, if I understand you correctly, you do not object to my central thesis: Original No Application Understandings may be rejected when doing so does justice to the text and the original paradigm cases.
Date of Authorship for this Version
Rubenfeld, Jed, "A Dialogue" (2006). Faculty Scholarship Series. Paper 4178.