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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 | | | 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. | |
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> | 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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< | No. "Originalism" is
the pretence to such a method, which is not theoretically
justifiable or practically achievable. Originalism is pretend
history for pretend justice.
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.”
Don't link to
proprietary services. Your readers can't read what they can't pay
for, or don't accept being spied on in return for being allowed to
read. This is a public document and should be linked to, or put
and then linked to, in a place on the public Web.
Scalia’s response indicates that he does not consider his interpretive method incompatible with Brown v. Board.
"Justice Scalia" to you?
No, there's no such indication. He said only, in the usual
Originalist way of claiming the authority of history while not
actually doing it, that the famous "nothin' to nothin' tie" doesn't
exist. He's making a demonstrably false empirical claim, not a
theoretical assertion.
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> | Justice 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. | |
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This is also demonstrably false.
| | | The Text
Fourteenth Amendment, Section 1 | | | 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. | >
> | 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. | | | 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). | | | Secondly, the public at large would probably have regarded racial integration as a step beyond legal equality. | |
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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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< | Why are you doing
"probably"? Why are you not carefully weighing the information
about the content of newspaper discussion, public letters, diaries,
and other available documentary sources carefully unearthed and
discussed by everyone from Bowers to Fairman to Kaczorowski to
Nelson? Why aren't you discussing the careful discussion in
Kluger's masterpiece? Why aren't you describing the effort Felix
Frankfurter had Alexander Bickel devote his clerkship to? Why, in
short, are you trying to make history up? Because you are affected
by the same illusionism and fantasy-making that afflicts the
argument you are trying to counter.
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.
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. | >
> | 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. | | | A Constitution that does not protect the rights of minorities to fully participate in society is not worth upholding. Originalism’s apparent incompatibility with Brown and various other canonical holdings calls the validity of the interpretive method into question. The originalist Constitution freezes our governing document in an era of values we now consider repugnant. | | | 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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This is all loopy self-deception. If you think history
determinative, perform the act of doing history. If history offers,
as Thurgood Marshall said, a "nothin' to nothin' tie" on the
question at issue, then don't invent history by telling the reader
what "probably" happened on the basis of nothing more than what you
can pull out of your ass. Instead, expand your willingness to accept
that history is the study of contingency and uncertainty, not the
revelation of God's plan for the world. It can only be used as
the basis for uncritical decision-making in politics by those whose
actual commitments are to revelation rather than experimentation.
You and Justice Scalia are joined not by a respect for history, but
by a respect for revelation. Originalism and whatever you're going
to call this stuff are branches of Christian religion, not American
legal analysis.
| | | -- FrancisWhite - 07 Apr 2013 |
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