The Originalist Case for Brown v Bd of Ed: I’m Skeptical
posted by Scott Moss
I had a lot of Con Law Nerd fun Wednesday night debating “judicial activism” with Ed Whelan, a former Scalia clerk and Senate Judiciary Cmte attorney who now is the Director of the President of the Ethics and Public Policy Center, a conservative think tank in D.C. I agree to do these events for a lot of reasons: they’re fun (especially because I’m so non-ideological in class that I enjoy cutting loose at events where I’m allowed to offer opinions); I see them as an extension of my “teaching” role; and I like to support student efforts to debate public issues, which Marquette’s Federalist Society does a lot (I’m sort of their designated patsy, like the team that plays the Harlem Globetrotters).
One point of debate was an issue on which Whelan and Judge Michael McConnell have written: Is there an originalist case for Brown v Bd of Ed? In a debate I did last year, another conservative and avowed originalist (Marquette prof John McAdams) said (I’m paraphrasing) “no, of course Brown is incompatible with originalism; the same Congress that passed the 14th Amdt also voted to keep the D.C. schools segregated, which illustrates that they didn’t see ‘Equal Protection’ as requiring desegregation.” Whelan’s and McConnell’s plausible responses (I hope I’m doing them justice, and I’m blending the best points of both here) are that (1) the 1860s Congress voted to desegregate but was stopped by a filibuster, (2) the authors and supporters of the 14th were very racially progressive “radical Republicans,” so they likely did mean to impose quite a broad requirement of “Equal Protection,” and (3) even if it wasn’t clear in the mid-19th century that separate-but-equal segregation was incompatible with “Equal Protection,” it became clear by the time of the 20th century desegregation cases.
A key problem I have with this argument is that while 1868 American society was willing to adopt a constitutional requirement of “Equal Protection,” it clearly wasn’t willing to desegregate schools. Whelan and McConnell argue that even if the broader society didn’t see the meaning of Equal Protection as requiring desegregation, the framers of the 14th Amdt (the “radical Republicans” who had extremely progressive views on race) did. Ok, but that seems, to me, to adopt framers’ intent originalism (what the actual adopters of the text thought it meant) with public meaning originalism (“the public meaning of the constitutional text at time of adoption … what an ordinary reader … would have understood the text to say, and not the intentions or purposes of the framers or ratifiers”). I’m quoting that definition of “public meaning originalism from Larry Solum’s colloquy with Robert Bennett.
Solum notes that “sophisticated originalists” have moved away from “framers’ intent” to “public meaning” for various reasons, including what Bennett called framers’ intent originalism’s “difficult problem of ‘summing’ states of minds of those responsible for some constitutional provision.” Scalia, for one, is a staunch “public meaning” originalist, which is how he can be quite pro-free speech even though the framers of the 1st Amdt — mainly Federalist Party leaders — didn’t have much respect for free speech themselves, passing the Sedition Acts to criminalize opposition to President Adams.
The problem I have is what I see as an inconsistency in how originalists deal with what Scalia once called “the closed-mindedness of our forebears”:
(A) how do originalists respond to the framers’ too-narrow understanding of speech and due process rights? by asserting that public meaning rather than framers’ intent is the proper basis for interpretation
(B) how do originalists respond to 1800s American society’s too-narrow understanding of Equal Protection? by asserting that the framers’ intent rather than public meaning is the proper basis for interpretation
In short, originalists have an awfully hard time dealing with the fact that if we interpret constitutional rights based on 1700s/1800s ideas, we get verrrrry narrow definitions of those rights. To mitigate that problem, originalists seem to pick whichever meaning is broader — public meaning is broader for free speech, whereas framers’ intent is broader for Equal Protection. But once originalists are undertaking cafeteria-style selection of whichever historical record is most convenient, originalism no longer has the advantage of precision and clarity that Scalia, et al., claim it has. This is why I agree with Bennett’s comment (in the above-linked colloquy with Solum) that the switch from framers’ intent originalism to public meaning originalism is “an attempt to salvage something from a misbegotten enterprise.”
Any responses, my originalist friends?
March 8, 2007 at 9:59 am
Posted in: Constitutional Law
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