ABSTRACT
Despite the legacies of nullification and civil war, states continued to resolve their constitutional visions in postbellum America. Many of these efforts came to little effect until the mid-twentieth century where southern actors attempted to use the states to refashion American constitutional theory so as to protect segregation. In terms of constitutional interpretation, southern states advanced a nascent theory of originalism: Brown v. Board was wrongly decided because it substituted social science for the original intention of the Fourteenth Amendment’s framers. This set up their claims of constitutional authority: the only legitimate means of constitutional change away from the original meaning was through constitutional amendment. In effect, this theory gave southern states, voting as a block, a constitutional veto. But, in terms of constitutional politics, by shifting the terms of the debate over Brown’s legitimacy away from justice and equality and toward the proper means of change, southern actors believed they could fashion a conservative political order that would be hostile to the Warrant Court and Brown. This strategy did not work in the short term but it had significant long-term effects by helping to usher in originalism and a modern conservative coalition committed to it as the proper means for judges to interpret the Constitution.
