Brown and Originalism. There’s more than one way to get it right.

NRO ^ | May 11, 2005, 7:58 a.m. | Edward Whelan

[.cnI redruM]

The Left invokes the Orwellian euphemism of the "living Constitution" as it promotes and applauds lawless judicial decisions, like Roe v. Wade, that have no conceivable basis in the text or structure of the real Constitution. The "metastasizing Constitution" would be a far more honest moniker. For the real living Constitution — the Constitution that came to life in 1789 and that grew to full fruition with the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments in the aftermath of the Civil War — is suffering from foreign cells metastasizing in its vital organs. The only means of restoring its health is a vigorous dose of originalist medicine.

The Left's "killer" argument against an originalist reading of the Constitution is that adherence to the original meaning of the Fourteenth Amendment purportedly would not have yielded the just result — the end to the evil of segregated public schools — mandated by the Supreme Court's landmark 1954 ruling in Brown v. Board of Education. Margaret Talbot's interesting but flawed profile of Justice Scalia and originalism in a recent issue of the New Yorker is typical (which I wrote about here): The only "way to get to Brown," she asserts, is "to embrace the 'living Constitution.' " Why's that? "[I]t's hard to see an originalist justification" for Brown, since, she claims, the "same Congress that passed the Fourteenth Amendment segregated Washington schools." Justice Scalia "sometimes acknowledges as much, saying that a faulty — that is, a non-originalist — method can occasionally produce good results, a Scalian variation on 'Even a broken watch is right twice a day.' " And further, she tells us, liberal legal scholar Cass Sunstein has declared that a "doctrinaire originalist" would reject Brown. Case closed. No need for further discussion.

But wait: Every one of Talbot's assertions is off the mark. First, the 37th Congress created segregated public schools for black children in D.C. in 1862, but it was a later, different Congress — the 39th — that in 1866 proposed the Fourteenth Amendment, which was ratified in 1868. As the brilliant scholar (and now tenth-circuit judge) Michael McConnell explains in his 1995 Virginia Law Review article "Originalism and the Desegregation Decisions": "At no time after the Fourteenth Amendment did Congress vote in favor of segregated schools in the District [of Columbia] (although Congress appropriated money for the segregated schools that already existed)." In addition, the restrictions of the Fourteenth Amendment apply only to states, not to Congress, so congressional action with respect to D.C. schools provides a shaky foundation for any inference as to the contemporaneous understanding of the Fourteenth Amendment.

Second, what Talbot characterizes as an acknowledgment by Justice Scalia is no such thing. To make the obvious point that non-originalist decisions — that is, judges doing whatever they want — can produce good results in no way implies that originalism would not yield those same results. To use Talbot's analogy: That a broken clock is right twice a day doesn't mean a working clock is wrong twice a day.

Third, just as one may rightly be suspicious when liberals instruct conservatives on what "genuine" conservatives would do, one need not accept Cass Sunstein as the final word on how an originalist would decide Brown.

If Talbot found it "hard to see an originalist justification" for ending state-sponsored segregation, it's because she wasn't looking in the right places. As early as 1880 — a mere twelve years after ratification of the Fourteenth Amendment — the Supreme Court in Strauder v. West Virginia read the Fourteenth Amendment as "declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color."

Even in its notorious 1896 ruling in Plessy v. Ferguson, the majority stated that the "object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law." But then, in the sort of freewheeling non-originalist excursion that advocates of the phony "living Constitution" have come to celebrate, the majority looked to the mystery of the universe to assert that "in the nature of things" the Fourteenth Amendment "could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality." By contrast, Justice Harlan's celebrated dissent quoted Strauder and declared that the purpose of the Fourteenth Amendment was to "remove[] the race line from our governmental systems."

Further, as McConnell's law-review article shows, in the years immediately following ratification of the Fourteenth Amendment, as Congress acted to enact legislation enforcing the requirements of the Fourteenth Amendment, a substantial majority of both houses of Congress repeatedly voted to abolish segregation in the public schools. Although filibuster tactics and other procedural obstacles prevented ultimate passage of legislation abolishing segregated schools, McConnell demonstrates that these votes provide powerful evidence that the original understanding of the Fourteenth Amendment was that segregated public schools were unconstitutional.

Under an alternative originalist approach, as Judge Bork and others have argued, even if the ratifiers of the Fourteenth Amendment assumed that segregated public schools were consistent with equality, objective comparisons of facilities and resources had, by the time of Brown, long since disproved this assumption. Under this approach, an originalist opinion in Brown would therefore have concluded that the Fourteenth Amendment's clear purpose of establishing racial equality under the law required an end to segregated schooling.

The legitimacy of originalism as the only proper method (or class of methods) of constitutional interpretation inheres in the very nature of the Constitution as law and does not depend on the results that originalism yields. Originalists will have disputes among themselves. But those who seek to discredit originalism by hiding behind Brown — the same people, by and large, who absurdly contend that the text of the Fourteenth Amendment stating that no state shall "deprive any person of life, liberty, or property, without due process of law" somehow should be twisted to guarantee rights to abortion and same-sex marriage — should hardly be presumed sound arbiters of how originalism should apply.

[.cnI redruM]

The left is very selective in it's judicial activism. Once a decision gets made in their favor they dig in like Juckov did at Stalingrad.

[Reaganghost]

The Reagan Renaissance is the best way to get it right.

[Reaganghost]

Click here to get the ball rolling.

[E.G.C.]

BTTT!!!!!!!

[international american]

Great post! Whelan has a keen and logical mind.

[PGalt]

Thanks for the post; ping and link.

[Fzob]

Bump for later

[.cnI redruM]

He dissects the obvious hypocrisy on holding up a few judicial decisions as legal Gold Standards while loudly declaiming any who consider the Constitution inerrant.

[SE Mom]

EXCELLENT...thanks for the ping!

[William Terrell]

Much is said about Plessy, but no one, probably also those who comment on it, actually have read it.

Below are some notes

Plessy v Ferguson  163 US 537
1896 Apr 13 - 1896 May 18

Parties:

    Plessy, citizen of the United States and resident of Louisiana, of mixed 
    blood petitioned for writs of prohibition and certiorari in the U.S. 
    Supreme Court. He stated that he was entitled to "every recognition, 
    right, privilege and immunity secured to the citizens of the United States 
    of the white race". he had been jailed and fined for attempting to ride in 
    a railway car designated for white people by the laws of Louisiana. He 
    challanges the constitutionality of the law. 

    Hon. John H Ferguson, judge of the criminal District Court for the 
    parish of Orleans.

Opinion of the Court: 

    Turns upon the constitutionality of the Louisiana law separating races in 
    public conveyances.

        Law does not conflict with the 13th Amendment

            Slaughter House Cases cited

                13th Amendment for involuntary servitude

            Civil Rights Cases cited

                Acts of individuals donot impose badge of slavery

        Law does not conflict with the 14th Amendment

            14th intended to enforce equality of the two races before the law 
            not social equality

            Separation of two races valid exercise of police power of the 
            State 

                Is Louisiana law reasonable exercise of police power

                    No less unreasonable than State laws requiring separation 
                    of schools which has not been questioned

                    If law stamps colored race with badge of inferiority, 
                    colored race puts such interpretation on it

            Legislation cannot control social distinctions against will of the 
            people

            Louisiana law regulating races riding intrastate railroads 
            constitutional because no interstate commerce

Quotes from concurring opinion:

    "A statute which implies merely a legal distinction between the white and 
colored taces -  a distinction which is founded in the color of the two races, 
and which must always exist so long as white men are distinguished from the 
other race by color - has no tendency to destroy the legal equality of the two 
races, or reestablish a state of involuntary servitude." 

    "...every exercise of the police power must be reasonable, and extend only 
to such laws as are enacted in good faith for the promotion for the public 
good, and not for the annoyance or oppression of a particular class." 

    "If the two races are to meet upon terms of social equality, it must be 
the result of natural affinities, a mutual appreciation of each other's merits 
and a voluntary consent of individuals."

    "Legislation is powerless to eradicate racial instincts or to abolish 
distinctions based upon physical differences, and the attempt to do so can 
only result in accentuating the difficulties of the present situation." 

[ken21]

thanks for an excellent article.

we know this, but the majority of the public does not know this because the democrats who control most of tv have skillfully used

"the nuclear option"

as an emotional button to scare their supporters on the democrat plantation.

even most university students do not know of the real issues, but only of the emotion buttons.

[gridlock]

There might not have been a way to Brown vs. Board of Education, but there were a lot of ways to desegregated schools. This could have been achieved through legislation or, if necessary, a Constitutional Amendment.

Brown vs. Board of Education short-circuited the process, and the resulting battles over busing and affirmative action, and the wholesale flight of whites from every major city in the country was the result of an imperfect solution imposed from above. The judicial mandate made a solution based on consensus impossible, and the end result is an inferior state of affairs.

[Defiant]

Not true, Brown v. Board was required by the 14th amendment, and Plessy was the judicial activist ruling that found a way to achieve the desired end through a nuanced approach. The Plessy decision lasted 56 years.

However, had Plessy been good law, I agree with you that it could have been fixed by legislation with no problem, since allowing segregation is not the same as requiring it. No constitutional amendment would have been necessary, at least under the FDR era's expansive view of the interstate commerce clause (which is another issue that will need to be reexamined in coming years).

[gridlock]

That may well be. I am not a Constitutional scholar. But my point was that when the courts act as agents of change, the change is not well accepted by the mass of people. In a democratic republic such as ours, change is best when it happens as a result of national consensus and evolving standards or what is right and wrong. When the courts usurp that role, people rightly see that change as being imposed by an unaccountable elite. The American People will not take kindly to being ruled by an unaccountable elite, whether they wear a King's crown or a Justice's robes.

[Defiant]

That's true, but irrelevant when it comes to interpreting the constitution. Courts interpreting the 14th Amendment cannot concern themselves with whether it will change society in the south (it would). They have to determine the meaning of the amendment. I think it abundantly clear that "separate but equal" did not meet the plain terms of the 14th amendment, and the Brown court did not need to be activists to decide that.

In general, sweeping social change, such as abortion, religion in public life, imposition of a high-tax welfare state, should come only through the Congress and President working together on legislation, and then the role of the court is to determine whether the legislation is constitutional. Actually, that process was followed. The 14th amendment was passed in the manner that is prescribed by the Constitution (although the southern states did not get to participate in that amendment and there is controversy about that). The 14th amendment was then interpreted by the court and the issue was still around in 1954 only because the court botched it in 1896.

[Tribune7]

If the Supreme Court in 1896 stuck to Originalism, Brown would never have been needed.

[.cnI redruM]

Basically true. Plessy was exercising his Freedom of Association when he was wrongfully prosecuted.

[jan in Colorado]

Thanks for the ping.