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FrancisWhiteSecondPaper 4 - 20 Jun 2013 - Main.FrancisWhite
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| | Originalism, Brown v. Board, and Constitutional Repeal and Re-Enactment | | | 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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< | 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. | >
> | Scalia’s response indicates that he does not consider his interpretive method 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 that addresses the problem of originalism on its own terms. | | |
The Text | | | 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 (see table at 27). | >
> | 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). | | | 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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