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FrancisWhiteSecondPaper 3 - 17 Jun 2013 - Main.FrancisWhite
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| | Originalism, Brown v. Board, and Constitutional Repeal and Re-Enactment | | | 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 legal entitlement of citizenship. | >
> | 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. | | | | |
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< | 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. | >
> | 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 (see table at 27). | | | 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. |
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