Alan Dershowitz struggles mightily yesterday in the Wall Street Journal to persuade us that Earl Warren would have been wholly in favor of the Harvard/UNC decision banning admissions by race based on the equal protection clause of the 14th Amendment. As much as we may welcome Dershowitz’s continuing defection from the left, this article is not persuasive.

Two bold propositions before an explanation. First, Brown vs. Board of Education did not directly overturn Plessy v. Ferguson‘s “separate but equal doctrine,” at least not on 14th Amendment grounds. Everyone thinks it did, but this is one of the great judicial sleight-of-hand acts in our history, which not even the clear language of the 1964 Civil Rights Act was able to clarify. This means, second, that the original, non-discriminatory understanding of the 14th Amendment wasn’t finally vindicated until two weeks ago, most especially in Clarence Thomas’s concurrence.

[It’s a fascinating argument. Given the Warren Court’s obvious use of judicial activism for policy outcomes (although not in Brown v Board of Education, which followed directly from the Constitution even if it didn’t make that argument), I’d guess that they would have continued affirmative action — with the one exception noted by Hayward at the very end. — Ed]