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< | 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
Introduction |
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< | 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.
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. 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 originalism incompatible with Brown v. Board.
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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> | 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. |
| | 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. |
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> | Below is an edited version of 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. |
| | 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). |
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< | 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. |
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> | The Court suggests that this fact renders history inconclusive; to quote Thurgood Marshall, then counsel for the plaintiffs, there was a "nothin' to nothin'" tie (credit belongs to Eben for introducing this language into the discussion, though if I am mischaracterizing anyone's analysis, the fault is of course exclusively mine). |
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< | 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. |
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> | However, from an originalist approach, historical ambiguity renders Brown a dubious decision at best. The citizenry of 1868 could not regard integrated public education as constitutionally guaranteed when public education itself was barely established. |
| | 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. |