Posted by Randy Barnett:
Originalism and Brown:
http://volokh.com/archives/archive_2005_05_08-2005_05_14.shtml#1115921115
Perhaps the most powerful objection to adopting an original meaning
approach to constitutional interpretation is that such an approach
would be inconsistent with the result in Brown v. Board of Education.
For most, regardless of ideology, any theory of interpretation that
does not get Brown correct, is unacceptable, almost by definition. The
perception that Brown is inconsistent with originalism is nurtured by
Brown itself, in which Chief Justice Warren stated that the evidence
of whether originalism supported the outcome was inconclusive. This
came after the Court held the case over for further briefing on the
historical question.
Some originalists deal with the problem of Brown by invoking
precedent. Other originalists who, like me, are generally skeptical of
precedent (see my essay on originalism and precedent [1]here), cannot
go that route (though our approach to originalism would not have any
awkwardness rejecting the precedent of Plessy).
Most scholars today know of Michael McConnell's work on school
desegregation and originalism, though it seems not to have made much
of a dent in the criticism. A concise summary of the originalist
response to this repeated charge (including that by Judge McConnell)
is presented by Edward Whelan in [2]Brown and Originalism: There�s
more than one way to get it right. Here is how it starts:
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 (which I wrote about here) is typical: The only "way to
get to Brown," she asserts, is "to embrace the 'living
Constitution.'"
In my experience, scholars who are not originalists typically do not
do originalist analysis very well. In part, this may be because they
are attempting by their historical analysis to discredit originalism
or at least neutralize an originalist outcome with which they
disagree. Perhaps the biggest problem is that, not being originalists,
they are not altogether careful about what an originalist argument
entails--especially as original intent originalism has been largely
abandoned in favor of original meaning originalism. (This may
partially account for the Court in Brown finding the historical
evidence inconclusive.) Whelan ends his essay on a similar note:
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 . . . should hardly be presumed sound arbiters
of how originalism should apply.
This essay makes a good introduction for law students about to take
constitutional law, but students should definitely read Michael
McConnell's articles as well:
Originalism and the Desegregation Decisions, 81 Virginia Law Review
947 (1995) and
The Originalist Justification for Brown: A Reply to Professor
Klarman, 81 Virginia Law Review 1937 (1995).
[Both are on Westlaw and Lexis, of course, but if someone sends me
on-line links to these article, I will add them to this post later.]
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=714982
2. http://www.nationalreview.com/comment/whelan200505110758.asp
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