No. "Originalism" is the pretence to such a method, which is not theoretically justifiable or practically achievable. Originalism is pretend history for pretend justice.

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.”

Don't link to proprietary services. Your readers can't read what they can't pay for, or don't accept being spied on in return for being allowed to read. This is a public document and should be linked to, or put and then linked to, in a place on the public Web.

Scalia’s response indicates that he does not consider his interpretive method incompatible with Brown v. Board.

"Justice Scalia" to you?

No, there's no such indication. He said only, in the usual Originalist way of claiming the authority of history while not actually doing it, that the famous "nothin' to nothin' tie" doesn't exist. He's making a demonstrably false empirical claim, not a theoretical assertion.

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 that addresses the problem of originalism on its own terms.

This is also demonstrably false.

Why are you doing "probably"? Why are you not carefully weighing the information about the content of newspaper discussion, public letters, diaries, and other available documentary sources carefully unearthed and discussed by everyone from Bowers to Fairman to Kaczorowski to Nelson? Why aren't you discussing the careful discussion in Kluger's masterpiece? Why aren't you describing the effort Felix Frankfurter had Alexander Bickel devote his clerkship to? Why, in short, are you trying to make history up? Because you are affected by the same illusionism and fantasy-making that afflicts the argument you are trying to counter.

Even if a “reasonable” citizen of 1868 were confronted with the notion of compulsory education, he (the political community being male) would still be woefully unsophisticated by modern standards. The court in Plessy v. Ferguson points to “social” equality as a step beyond Constitutional requirements, and doubtless Justice Scalia’s “reasonable” reader would have felt the same.

This is all loopy self-deception. If you think history determinative, perform the act of doing history. If history offers, as Thurgood Marshall said, a "nothin' to nothin' tie" on the question at issue, then don't invent history by telling the reader what "probably" happened on the basis of nothing more than what you can pull out of your ass. Instead, expand your willingness to accept that history is the study of contingency and uncertainty, not the revelation of God's plan for the world. It can only be used as the basis for uncritical decision-making in politics by those whose actual commitments are to revelation rather than experimentation. You and Justice Scalia are joined not by a respect for history, but by a respect for revelation. Originalism and whatever you're going to call this stuff are branches of Christian religion, not American legal analysis.

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

Introduction

Originalism is 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. 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.”

Scalia’s response seems to suggest that he does not consider his interpretive method incompatible with Brown v. Board. I will argue that Justice Scalia is incorrect, that Brown is impossible under 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 that addresses the problem of originalism on its own terms.

The Text

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The “Reasonable” Reader in 1868

If told about the fact pattern in Brown, the typical citizen of 1868 would have looked to three textual hooks in considering the legality of school segregation. This is, of course, assuming that this typical citizen would not reject the constitutional challenge in Brown as facially absurd. If this citizen actually looked to the text, he would have identified the “privileges and immunities,” “due process,” and “equal protection,” clauses as potentially relevant. Therefore, one must ask whether a reasonable citizen in 1868 would consider it a violation of a “privilege” of citizenship, a deprivation of “liberty” without “due process,” or a violation of “equal protection” to deprive black citizens of the right to be educated in public schools alongside white citizens.

To a reasonable citizen in 1868, and indeed, to a reasonable citizen in 2013, each of these three clauses would probably mean roughly the same thing. Each suggests in the most general possible terms that citizens, a group which now includes black Americans, are entitled to certain legal protections. Given the limited space with which I have to work, and the reasonable citizen’s inability to closely parse legal text, I am inclined to focus on the social realities of the period and discuss how they might affect a citizen’s understanding of what might qualify as a fundamental legal entitlement of citizenship.

As the Court pointed out in Brown, “In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold.” Only Massachusetts, Vermont, and the District of Columbia required compulsory education in 1870.

The Court suggests that this fact renders history inconclusive, but from an originalist approach, it renders Brown a dubious decision at best. It is highly unlikely that the citizenry in 1868 would regard integrated public education as constitutionally guaranteed when public education itself was barely established.

Secondly, the public at large would probably have regarded racial integration as a step beyond legal equality. Even if a “reasonable” citizen of 1868 were confronted with the notion of compulsory education, he (the political community being male) would still be woefully unsophisticated by modern standards. The court in Plessy v. Ferguson points to “social” equality as a step beyond Constitutional requirements, and doubtless Justice Scalia’s “reasonable” reader would have felt the same.

One could find numerous other examples of holdings that are indisputably correct for all moral and practical purposes but do not mesh well with an originalist understanding of the Constitution. Brown’s slightly less prominent sister case, Bolling v. Sharpe, reached the same result through the Fifth Amendment (scroll down for text), ratified in 1791, when “reasonable” people would not have considered black Americans part of the community protected by the Constitution, and which has no equal protection clause.

A Constitution that does not protect the rights of minorities to fully participate in society is not worth upholding. Originalism’s apparent incompatibility with Brown and various other canonical holdings calls the validity of the interpretive method into question. The originalist Constitution freezes our governing document in an era of values we now consider repugnant.

A Solution

Perhaps the best way to solve this problem, other than pretending that originalism doesn’t ruin the Constitution, would be to repeal and re-enact the Fourteenth and Fifth Amendments, or even the entire document. Or, if we take the idea to its logical conclusion, we could insert a clause at the end of the Constitution stating that it is automatically renewed once every few years. Since today we understand terms like “equal protection” and “liberty” to prohibit state sponsored segregation, interpreting the new version of Fourteen, or even the entire document, as a reasonable reader in 2013 might view it would achieve much more satisfying results. If this seems like a silly or unnecessary step, that is because it addresses a deeply flawed view of the Constitution on its own terms.

Perhaps Justice Scalia, who has proclaimed, “Long live formalism,” would see such an odd amendment as doctrinally significant. More likely, he and his originalist colleagues would find a new, equally clever justification for obstructing the furtherance of racial justice, while maintaining that they would have supported Brown all along.

-- FrancisWhite - 07 Apr 2013