He had, in 1978, in Regents of University of California v. Bakke, 438 U.S. 265 at 400, spoken critically of the historical mistreatment of blacks under the United States legal system, giving rise to the need for affirmative action:

... The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized for the Negro; because of his skin color he never even made it into the pot.

It is true that the promise in the preamble to the Constitution to "secure the Blessings of Liberty to ourselves and our Posterity", was not as all-inclusive at the start as those words implied. But, surely, it has been better to have had a Constitution capable of being expansively invoked for liberty than the alternative posed by failure to agree at the Constitutional Convention. Thus, a marvelous blow was struck for liberty by the designing of a Constitution which was available for posterity.

And the Constitution was invoked for liberty for posterity by lawyers like Justice Marshall and his predecessors in a series of cases culminating in Brown v. Board of Education. A review of the extraordinary historical background leading to Brown is essential to understanding the zeal of the proponents of affirmative action such as busing. I wrote of this history in an article entitled The Constitution: A Grand Design — Invocable for Liberty in the Los Angeles Daily Journal Report, dated August 7, 1987.

In Part I, my description of the Forming of the Grand Design includes the following pertinent passages:

... Fifty-five delegates from twelve states (excepting Rhode Island) met in May 1787, to revise their form of confederation in a Philadelphia convention, presided over