Law in Contemporary Society

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Originalism, Brown v. Board, and Constitutional Repeal and Re-Enactment

Introduction

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<		Originalism purports to be a method of interpretation dictating that the Constitution means whatever a reasonable member of the public would have understood it to mean at the time of its adoption. At least on its face, it completely rejects one of our course's themes, legal creativity. This doctrine is most strongly associated with Justice Antonin Scalia. In 2009, Justice Scalia and Justice Stephen Breyer held a public discussion about the Constitution. Justice Breyer suggested that the Fourteenth Amendment would not have been understood at the time of its adoption to prohibit segregation in public schools. Scalia dismissed Breyer’s point and accused him of “waving the bloody shirt of Brown.”
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>		Originalism purports to be a method of interpretation dictating that the Constitution means whatever a reasonable member of the public would have understood it to mean at the time of its adoption. At least on its face, it completely rejects one of our course's themes, legal creativity. This doctrine is most strongly associated with Justice Antonin Scalia. In 2009, Justice Scalia and Justice Stephen Breyer held a public discussion about the Constitution. Justice Breyer suggested that the Fourteenth Amendment would not have been understood at the time of its adoption to prohibit segregation in public schools. Justice Scalia dismissed Justice Breyer’s point and accused him of “waving the bloody shirt of Brown.”
 Justice Scalia’s response suggests that he does not consider originalism incompatible with Brown v. Board, or at least feels obligated to maintain that pretense. I will argue that Justice Scalia is incorrect, that Brown is incompatible with an originalist interpretation of the Fourteenth Amendment, and that originalism’s incompatibility with the obvious correctness of Brown and similar cases calls the validity of the entire interpretive approach into question. I will then propose a hypothetical solution.

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Revision 9r9 - 22 Jun 2013 - 00:15:36 - FrancisWhite
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