A wide variety of scholarship has addressed the law of race relations during the late nineteenth and early twentieth centuries. Much of that scholarship has presented the judicial record in the Gilded Age and Progressive Era cases as reactionary and somehow in violation of the basic principles of equality implicit in the American Constitution, particularly in the thirteenth, fourteenth, and fifteenth amendments. Professor Hovenkamp calls this view into question by examining the science and social science of that period and the use of scientific information in race relations cases. He concludes that late nineteenth and early twentieth century courts used prevailing scientific theories in much the same way that the Supreme Court used such theories in Brown v. Board of Education-that judicial decisions of the time were very much a product of the prevailing scientific views concerning the wisdom of separation of the races. Thus, the significant difference between the Progressive Era and the Warren Court lay not in the use of social science, but rather in the content of the science itself.
Social Science and Segregation Before Brown,
1985 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol34/iss3/3