Resumen de There’s something about Brown: A reply to Emmett Macfarlane

Erin F. Delaney, Christopher W. Schmidt

• Emmett Macfarlane’s theory of judicial constitutional amendment draws needed attention to the role of transformative court decisions in the process of constitutional development. We agree with Macfarlane that the analysis should include a controversial ruling’s reasoning and immediate reception. But in this response essay, we argue that expanding beyond Macfarlane’s focus allows us to better capture the full scope of what it means to amend a constitution. We use Brown v. Board of Education to illustrate the need for both ex ante and ex post analysis in constructing a theory of judicial constitutional amendment.