"History has its claims," wrote Justice Felix Frankfurter. Hence I am constrained to correct the views attributed to me by Judge Anthony Kennedy: "intent" means "what the Framers, as he {Berger} calls them, actually thought." My focus always has been on what they said and did, not on what they "thought."

Judge Kennedy explains that "in the legislature we don't ask what the staff person thought when he or she wrote the bill. We ask what the senators thought." Like him, I never have relied on staff persons, but ever on what the Framers said, not thought. The devil himself knows not the mind of man.

Judge Kennedy relies on what the "legislature thought they were doing and intended and said when they ratified the amendment." Certainly what the ratifiers said carries great weight. In a recent detailed study of the campaign for ratification of the amendment in Illinois, Ohio and Pennsylvania, Dean James Bond of the University of Puget Sound sets out materials that startlingly confirmthe particulars set forth in my1977 study, "Government by Judiciary."

Judge Kennedy also considers that Plessy v. Ferguson -- the 1896 "separate but equal" case -- "was wrong on the day it was decided." From an 1849 Massachusetts decision by the preeminent Chief Justice Lemuel Shaw, a row of cases close to adoption of the amendment held that "separate but equal" was constitutional. The doctrine of "contemporaneous construction" attaches great weight to such decisions because the judges "had the best opportunity of informing themselves of the understanding of the Framers." Those constructions are confirmed by the legislative history of the amendment. Something more than bare assertion that Plessy was "wrong" is required to overthrow the views of judges who were closer to the understanding of the Framers.

Of course, "a people," as Judge Kennedy observes, "can rise above its own injustice," and did so in adopting the Thirteenth, Fourteenth and Fifteenth amendments. That is not the issue. The issue is whether the Supreme Court may disregard the Framers' own explanations of what they intended by the words they used. As Justice Harlan said, "When the court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power was committed, andit has violated the constitutional structure which it is its highest duty to protect."

We should be clear as to what has been at stake in the battle over recent judicial nominations. Led by Sens. Edward Kennedy and Joseph Biden, the goal has been to nail down what President Benno Schmidt of Yale complacently described as the "social revolution" facilitated by the modern court, to protect the court's decisions of the last 40 years. But why should those decisions be more sacrosanct than those of the prior 150 years, which the court overturned in droves?

My social and political sympathies are with Sens. Biden and Kennedy, but for 50 years my overriding commitment has been to the integrity of the Constitution. The "desegregation" decision has become a sacred cow that an office-seeker criticizes at his peril. But the duty of a scholar is to set aside his own predilections, to hew to the line, let the chips fall where they may.

The writer is a legal historian and author of "Government by Judiciary."