| | This is a revision intended to link to sources that are publicly accessible, along with minor edits. Eben's comments are available in the page history. A more thorough revision is forthcoming, when time allows.
Originalism, Brown v. Board, and Constitutional Repeal and Re-Enactment | | | 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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< | Justice Scalia’s response indicates that he does not consider his interpretive method incompatible with Brown v. Board. | >
> | Justice Scalia’s response indicates that he does not consider originalism incompatible with Brown v. Board. | | | | |
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< | 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. | >
> | 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. | | | The Text
Fourteenth Amendment, Section 1 | | | The “Reasonable” Reader in 1868 | |
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> | Below is my discussion from my first draft. Unfortunately, due to these space constraints, the following discussion cannot be thorough enough to do justice to the subject's complexities. In retrospect, perhaps I should have pursued a more manageable topic. | | | 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. | |
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< | 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 entitlement of citizenship. Unfortunately, due to these space constraints, this discussion cannot be thorough enough to do justice to the subject's complexities. | >
> | 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 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 had established compulsory education in 1870 (see table at 27). | | | A Solution | |
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< | 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 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 more satisfying results. | | | Perhaps Justice Scalia, who has proclaimed, “Long live formalism,” would see such an odd amendment as doctrinally significant. If so, it might shut down a school of reactionary jurisprudence. More likely, he and his originalist colleagues, many of whom really are creative lawyers, would find a new, equally clever justification for obstructing the furtherance of justice, while maintaining that they would have supported Brown all along. |
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