Law in Contemporary Society

Originalism, Brown v. Board, and Constitutional Repeal and Re-Enactment


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. Justice Scalia dismissed Justice Breyer’s point and accused him of “waving the bloody shirt of Brown.”

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

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The “Reasonable” Reader in 1868

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.

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.

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; 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).

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.

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.

A Solution

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.

-- FrancisWhite - 07 Apr 2013


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r11 - 14 Jan 2015 - 22:23:38 - IanSullivan
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