| | Originalism, Brown v. Board, and Constitutional Repeal and Re-Enactment | | | The “Reasonable” Reader in 1868 | |
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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. | >
> | Below is an edited version of my discussion from my first draft. Unfortunately, due to time and 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. | | | 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 more satisfying results. | >
> | One 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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