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Brown v. Board of Education under Originalist Principles:

Would Plessy Hold?

Daniel J. Castellano, M.A. (2007)

1. Introduction
2. Plessy v. Ferguson: “Separate but Equal”
3. Justice Harlan’s Dissent
4. Brown v. Board of Education
5. Analysis

1. Introduction

The United States Supreme Court’s unanimous 1954 decision in Brown v. Board of Education of Topeka 347 U.S. 483, abolishing racial segregation of public schools, has had far-reaching implications in American jurisprudence, as it is widely regarded as the first of a series of “activist” decisions that prescinded from any attempt to interpret the U.S. Constitution according to the drafters’ intentions. Prior to Brown, there had certainly been many incidences of judicial overreaching, but these were generally rationalized as somehow representing the original intent of the drafters of the Constitution. In recent decades, this formerly universal understanding of the Constitution as a law that ought to be interpreted according to legislative intent has become marginalized as “originalism,” a jurisprudential view held only by more conservative jurists, most notably Justice Antonin Scalia. The mainstream of legal scholarship currently holds some variation of what is often called the theory of a “living Constitution,” which is to say that the Constitution’s meaning is not fixed at the time it is drafted, but varies according to the interpretations of each generation. It is important to emphasize that in this view the Constitution’s meaning changes, since even originalists acknowledge that the practical application of the Constitution may vary over time with changing circumstances.

A common argument against originalism is that it often yields patently unjust results, as was supposedly the case in Plessy v. Ferguson, 163 U.S. 537 (1896), which upheld the constitutionality of racial segregation, appealing in part to the fact that segregation was tolerated and even endorsed by many of the same statesmen who voted for the Fourteenth Amendment. In fact, both the majority decision in Plessy and Justice John Marshall Harlan’s famous dissent explicitly appealed to originalist principles, showing how originalism, like any other jurisprudential theory, can lead to contrary opinions in specific applications. We will examine the merits of both these arguments in light of originalist principles to determine whether originalism really does require one outcome rather than the other.

Even if originalism does require upholding racial segregation, that is not an argument against this form of jurisprudence. Justice Harlan, though opposing the constitutionality of segregation, nonetheless eloquently observed that it is emphatically not in the province of the courts to decide whether laws are reasonable or just, but they are merely to execute the legislative will, and in his view, segregation was at odds with the will of those who ratified the Fourteenth Amendment. If originalism does require us to uphold Plessy, that injustice would merely reflect a deficiency in the Constitution requiring amendment. Similarly, we should not fault the jurisprudence of a court in the 1850s that upheld the constitutionality of slavery, but rather we might identify a deficiency in the Constitution, ultimately corrected by the Thirteenth Amendment. (The dubious legal rectitude of the Dred Scott decision is another matter entirely, dealing with state and federal citizenship of freed slaves.)

An “ends justify the means” approach may be used to justify Chief Justice Earl Warren’s activism in Brown and later civil rights cases. Determined to abolish the injustice of racial segregation in schools, Warren called for a re-argument of the case on terms that would explicitly challenge the “separate but equal” doctrine on segregation articulated in Plessy. The decision itself was surprisingly brief and contained little in the way of legal argument, for a judgment that was to overturn a half century of jurisprudence. Warren determined that the original intent of the ratifiers of the Fourteenth Amendment could not be conclusively known with regard to the issue at hand. This was a fairly common occurrence, normally remedied by appeal to the text of the amendment, the meaning of its terms at the time of ratification, and established precedents shortly after the amendment’s adoption. Instead, the Warren Court appealed to sociological arguments about the adverse effects of segregation. While not an illegitimate approach, this displayed a casual attitude toward earlier jurisprudence that would be repeated in later cases. We may reasonably inquire whether there would have been an originalist basis for upholding Brown, namely the factual finding that segregated schools are unequal both in fact and intent, thereby thwarting the intentions of the drafters of the Fourteenth Amendment.

Once again, should the Brown decision fail to meet originalist criteria, this is not an argument against originalism, but simply a reflection of a deficiency in the Constitution’s Civil War amendments, which may have left a loophole for racial segregation, perhaps even intentionally. Nonetheless, since many critiques of originalism appeal to civil rights cases such as these segregation decisions, we might bring clarity to the discussion by showing the actual motivations of both sides in the Plessy decision, as well as examining whether factual findings raised in Brown would legitimize an originalist application of the Fourteenth Amendment to new data, thereby voiding laws that mandate public school segregation.


2. Plessy v. Ferguson: “Separate but Equal”

Plessy v. Ferguson (1896) was by no means the first case to justify segregation using the “separate but equal” doctrine. This dubious honor probably belongs to the Massachusetts Supreme Judicial Court case Roberts v. City of Boston, 59 Mass. 198 (1850). Chief Justice Lemuel Shaw, an opponent of slavery and one of the most widely respected jurists in the country, wrote the unanimous opinion declaring that school segregation did not violate the equality of all persons before the law guaranteed by the state constitution’s declaration of rights. Shaw was no enemy of civil rights for blacks, and was not above twisting logic in their favor, as he had done in Commonwealth v. Aves, 35 Mass. 193 (1836), where he sophistically concluded that a slave brought to Massachusetts with her master became free, since she was not a runaway and therefore not subject to the federal fugitive slave law. This early example of judicial activism, prizing the moral ends over the jurisprudential means, effectively abolished slavery in Massachusetts. In the Roberts case, argued in 1848-49, the plaintiff’s counsel led by Charles Sumner contended that the reasoning of Aves against slavery could now be applied to a similar injunction against segregation. Instead, the court gave the school committee the benefit of the doubt, stating:

The committee, apparently upon great deliberation, have come to the conclusion, that the good of both classes of schools will be best promoted, by maintaining the separate primary schools for colored and for white children and we can perceive no ground to doubt, that this is the honest result of their experience and judgment.

Against the plaintiff’s contention that segregation establishes a caste system grounded in racial prejudice, the court found:

This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compelling colored and white children, to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view, the best interests of both classes, of children placed under their superintendence, and we cannot say, that their decision upon it is not founded on just grounds of reason and experience, and in the results of a discriminating and honest judgment.

Unwilling to accuse the school committee of racist intent, and finding that there were no significant differences in the quality of the schools, the court ruled that racially segregated schooling was not a violation of equal rights. Although the formula “separate but equal” was not explicitly stated, its substance was contained in the Roberts decision, and future segregation cases elsewhere in the country would appeal to its reasoning.

Segregation of schools and public transit was established in many states, north and south, including the District of Columbia. The Fourteenth Amendment to the Constitution, adopted in 1868, was designed to abolish racial discrimination by law, guaranteeing equal rights to all races. In 1875, Congress passed a Civil Rights Act, which stated, in part:

That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

The act further prescribed fines and short-term imprisonment for anyone who denies a citizen any of the above accommodations or privileges on account of race.

In 1883, the constitutionality of the Civil Rights Act was put to the test before the Supreme Court in the so-called Civil Rights Cases, 109 U.S. 3: United States v. Ryan, United States v. Nichols, United States v. Singleton, and Robinson v. Memphis & Charleston R. Co. The Court found that the Fourteenth Amendment restricted the action of state legislatures, so Congress could enforce the amendment by prescribing penalties against states that violated the amendment, but Congress was not authorized to establish a legal code over all private individuals in this domain, thereby superseding the state legislatures. In particular:

It is absurd to affirm that, because the rights of life, liberty, and property (which include all civil rights that men have) are by the amendment sought to be protected against invasion on the part of the state without due process of law, Congress may, therefore, provide due process of law for their vindication in every case; and that, because the denial by a state to any persons of the equal protection of the laws is prohibited by the amendment, therefore congress may establish laws for their equal protection. [109 U.S. 13]

The Fourteenth Amendment authorizes Congress to propose corrective legislation penalizing or counteracting state legislatures that violate the Constitution, but does not allow Congress to pass general legislation on such matters, since that would effectively place all civil rights legislation in the hands of the federal government. Needless to say, the post-Warren jurisprudence that employs this “absurd” construction of the Fourteenth Amendment has in fact federalized all civil rights legislation, mainly in the form of Supreme Court decisions rather than acts of Congress. In 1883, however, this was still recognized as an encroachment on states’ rights, and the Court found that the Civil Rights Act did not limit itself to redressing state laws that violated the Fourteenth Amendment, but unconstitutionally usurped the power to legislate over private activities outside its jurisdiction. Even in cases where states have no discriminatory laws, the Civil Rights Act would have force over individuals and businesses, effectively usurping local jurisdiction. Thus the above-cited sections of the Civil Rights Act were declared unconstitutional and void, though the Court took care to reaffirm the constitutionality of the Civil Rights Bill of 1866, which prescribed redress for state laws that violated the Fourteenth Amendment.

Justice J.M. Harlan dissented from the majority opinion in the Civil Rights Cases, claiming the Court had narrowly constructed the Fourteenth Amendment in a sense at odds with the drafters’ manifest intent to prevent racial discrimination. He also cited precedents establishing that public transportation, inns, and places of public amusement were devoted to public use, even if privately owned; thus they were subject to the Equal Protection Clause and Congress had the authority to act in this domain. Harlan was mainly a strict constructionist, but he disagreed with the majority on what was the correct construction of the amendment.

The Supreme Court’s ruling against the first two sections of the 1875 Civil Rights Act did not deny that privately owned public transportation was a proper object of the Equal Protection Clause, as long as a state law was the basis of such discrimination. In fact, precisely such an issue was at stake in Plessy v. Ferguson, where Homer Plessy, a man of mixed ancestry (“seven-eighths Caucasian and one-eighth African blood”), was ordered by a conductor on the East Louisiana Railway to vacate the “white” coach. After refusing to comply, Plessy was arrested, jailed, and charged with violating a Louisiana state law passed in 1890 stating that “any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days.” The statute sought to comply with the Equal Protection Clause by requiring “that all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races.”

The Equal Protection Clause of the Fourteenth Amendment had been construed by the Supreme Court as applying only to national citizenship, not state citizenship. This narrow construction had been established in the Slaughter-House Cases, 83 U.S. 36 (1873). In the majority opinion, the Court also noted that the purpose of the Equal Protection Clause was to nullify laws that discriminated against blacks. The Fourteenth Amendment guaranteed to blacks all the rights of national citizens, and prevented any state from passing a law that limited the rights of a national citizen. In Plessy v. Ferguson, the Court reiterated the line of reasoning used in the Slaughter-House Cases, adding:

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. [163 U.S. 544]

The Court strikes out on a new path with its speculation as to the drafters’ intentions “in the nature of things.” This is a rather careless application of originalism, as the legislators’ intent is determined not by solid historical and legal facts, but by a philosophical argument regarding the logical consequences of equal protection under the law. Elsewhere in its opinion, the Court will make a historical argument for its construction of original intent, but at first it is content to note that:

Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. [Loc. cit.]

This casual assumption that state-sanctioned racial segregation need not imply the inferiority of one race is repugnant to modern sensibilities, and the central thesis of Brown v. Board would vigorously assert the contrary, but on purely logical grounds the statement holds. We can easily conceive of a hypothetical scenario where two races or groups equal in social stature mutually agree not to commingle in certain activities, due to cultural differences. A concrete example might be the gender-based segregation of public restrooms, where there is no stigma of inferiority cast on either sex as a result of this separation. The Court in Plessy is correct to assert that separate need not mean unequal, but the question remains whether that is in fact the case with actual segregation laws, a question the majority artfully evades.

Instead, the Court builds an historical argument that segregation has been considered within the competency of state and local governments, an argument which is of limited value considering that many of the cases cited, including Roberts v. Boston, occurred before the Fourteenth Amendment was ratified. The Court also cites Louisville, N.O. & T. Railway Co. v. State of Mississippi 133 U.S. 587 (1890), where a railway company failed to comply with a Mississippi statute requiring segregated trains. This case challenged the statute only as a possible violation of the Commerce Clause [Art. 1, Sec. 8], but since the statute applied only to travel within the state, there was no usurpation of Congress’ power to regulate interstate commerce. The constitutionality of segregation with respect to the Equal Protection Clause is not directly addressed in Louisville.

A more credible historical argument, often made by modern commentators, is that the Congress that ratified the Fourteenth Amendment also voted for segregated schools in the District of Columbia only a couple of years earlier, and voted to continue funding them even after the Fourteenth Amendment was passed. The Court in Plessy does not develop this argument, but only mentions in passing the fact that segregated schools were authorized in the District of Columbia. The case citations in Plessy are not principally concerned with determining the original intent of the drafters of the Fourteenth Amendment, but instead expound a broader precedent, before and after the amendment, showing that segregation has been regarded as consistent with racial civil rights.

The Court acknowledges that certain forms of racial discrimination may violate the Equal Protection Clause if they fail a standard of reasonableness. To pass this test, a laws must be “enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class.” A statute that failed this test was struck down in Yick Wo v. Hopkins 118 U.S. 356 (1886), where a San Francisco ordinance regulating public laundries was judged to be “an arbitrary and unjust discrimination against the Chinese race.” An ostensibly race-neutral law could violate the Equal Protection Clause if it gave officials arbitrary power that could be used to target a specific race. Interestingly, the Court does not apply the reasonableness test to Plessy by examining whether there is the intent or effect of harassing blacks, but instead appeals to “the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.” [163 U.S. 550] Seeing that no one has yet presumed to abolish segregation on the basis of the Fourteenth Amendment, the Court concludes that the Louisiana statute is not in violation of the amendment.

This argument from precedent might have stood on its own, but strangely and perhaps ruinously the Court chose to pursue the matter further, declaring that segregation does not stamp blacks with a “badge of inferiority.” On the contrary, the Court claims, “If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” [163 U.S. 551] This is breathtakingly naïve, and while it is conceivable that a segregation law might exist due to the mutual acceptance of both races, the Court utterly neglects to determine whether that is in fact the case here, or if this is bad faith legislation discriminating against a specific race as in Yick Wo. This is not a question that can be answered without careful inquiry, and in light of later social history it seems incredible that the Court should disregard the possibility that segregation laws might be motivated by racism. While segregation of schools had a long history of broad acceptance, even by majority black legislatures, the Jim Crow laws segregating public transit vehicles and other accommodations were a recent phenomenon, proliferating in the 1890s, promoted by racist groups and widely opposed by blacks.

After denying that segregation laws are racially discriminatory, the Court finally acknowledges the reality of racism, but follows a line of argument used in earlier cases that the Constitution only guarantees political or civil equality, not social equality. While there may be merit in the argument that bigotry cannot be abolished through legislation, it is hardly germane to the issue of state-sponsored segregation. If supposed “social” inequality is codified in law, it becomes political.

Citing the New York court of appeals in People v. Gallagher 93 N.Y. 438 (1883), the Court claims that the goal of social equality “can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate.” [93 N.Y. 448; 163 U.S. 551] Even if segregation reflects social injustice, desegregation ought not to be imposed contrary to the will of the community.

This argument is grounded in a sound general principle of law, but this principle must be circumscribed by the inalienable rights of minorities. The Thirteenth Amendment was imposed on communities that opposed the abolition of slavery by resounding majorities, yet the federal government did not shrink from enforcing the amendment to the maximum extent. Desegregation would certainly create similar outrage and social upheaval, but if it was necessary in order to secure Fourteenth Amendment rights, it must be done.

The questions raised, and putatively answered, by Plessy are whether equal civil rights are guaranteed by separate but equal accommodations in the exercise of these rights, and whether any “social” inequality implicit in segregation laws requires a legal remedy. The Court answered in the affirmative to the first question, and in the negative to the latter, yet neglected to seriously consider whether there was racially discriminatory intent behind Jim Crow laws, and whether the social distinctions of segregation acquired a civic or political character by virtue of being codified in state law regarding use of public accommodations. These issues would be addressed by the lone dissenter in Plessy, Justice John Marshall Harlan.


3. Justice Harlan’s Dissent

Justice Harlan’s jurisprudence was hardly less originalist than that of the rest of the Court; in fact, he is known as a scrupulous strict constructionist.[1] His dissent from Plessy did not result from an activist sense that segregation was wrong, for: “However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the constitution of the United States.” [163 U.S. 553] He insists that the Thirteenth and Fourteenth Amendments, “if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship.” [163 U.S. 555, emphasis added] Justice Harlan was eminently concerned with the original intent and meaning of the Civil War amendment, which he constructed differently than the majority.

First, Justice Harlan notes precedents establishing that privately owned railways are nonetheless public highways intended for public use. This emphasis places the Plessy case squarely in the domain of the exercise of civil rights. Since the Fourteenth Amendment guarantees equality of rights regardless of race, Justice Harlan infers that the government has no right to demand knowledge of a citizen’s race in order for him to exercise his civil rights. He constructs the Fourteenth Amendment more broadly than the Slaughter-House Cases, claiming that equality of rights applies to both national and state citizenship. Further, the right not to reveal one’s race in order to exercise one’s civic rights is a matter of the personal liberty guaranteed to all citizens in the United States, which includes all blacks since the passage of the Fourteenth Amendment.

Justice Harlan gathers that the intentions behind the Civil War amendments were to guarantee full civic and political equality to blacks in particular, and all races in general. The amendments follow a certain logic, as the Thirteenth Amendment abolished slavery, as well as any burdens that constitute a “badge of servitude.” This language caused the majority to reject the notion that segregation might represent a “badge of inferiority,” since that might be construed as a Thirteenth Amendment violation, while it seemed clear that this was a Fourteenth Amendment issue. Justice Harlan seems to acknowledge this, when he notes that the Fourteenth Amendment was passed because the previous amendment was “found inadequate to the protection of the rights of those who had been in slavery.” [163 U.S. 555] With the Fourteenth Amendment protecting all the civil rights omitted by the Thirteenth Amendment, it remains for the Fifteenth Amendment to guarantee political rights, in particular the right to vote.

In synthesis, the Civil War amendments guaranteed full political and civil rights to all men regardless of race, guaranteeing their equality before the law. In this sense, Justice Harlan is correct to say that the amendments “removed the race line from our governmental systems,” though it remains to be shown whether governments might still legislate with regard to race, as long as civic and political equality is respected. He cites the Court’s previous ruling in Strauder v. West Virginia, 100 U.S. 303 (1880) that the amendments guarantee protection against:

...unfriendly legislation against them distinctively as colored; exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy; and discriminations which are steps towards reducing them to the condition of a subject race.

The Court in Strauder invoked originalist principle in its construction, affirming:

The true spirit and meaning of the amendments, as we said in the Slaughter-House Cases (16 Wall. 36), cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. It was well known that in some States laws making such discriminations then existed, and others might well be expected. The colored race, as a race, was abject and ignorant, and in that condition was unfitted to command the respect of those who had superior intelligence. Their training had left them mere children, and as such they needed the protection which a wise government extends to those who are unable to protect themselves. They especially needed protection against unfriendly action in the States where they were resident. It was in view of these considerations the Fourteenth Amendment was framed and adopted. [100 U.S. 306]

Racial patronizing notwithstanding, the Court’s sense that the motivation of the Civil War amendments was to guarantee civil and political equality for blacks is sound analysis of the ratifiers’ intentions. It is precisely this assessment of original legislative intent, not some innovative interpretation, that requires a broad application of the Fourteenth Amendment.

If this is the spirit and meaning of the amendment, whether it means more or not, it is to be construed liberally, to carry out the purposes of its framers. It ordains that no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the newly made citizens, who, being citizens of the United States, are declared to be also citizens of the State in which they reside). It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but 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? [100 U.S. 308]

The Court in Strauder accepts a broader construction of the Fourteenth Amendment in view of its intent to establish complete racial equality before the law. Thus West Virginia’s legal restrictions against the use of black jurors were unconstitutional. In contrast with the Slaughter-House Cases, the majority in Strauder found the amendment to establish rights for blacks not only as national citizens, but by implication, also as citizens in the state in which they reside.

Despite this recognition that blacks could not be denied the right to serve as jurors by law, later decisions of the Court, including Gibson v. Mississippi, 162 U.S. 565 (1896), written by Justice Harlan, found that a man was not necessarily denied his civil or political rights even if a state systematically excludes blacks from juries, so long as this exclusion is not prescribed by law. In the event of this sort of injustice, the accused may have the judgment of his case appealed to a higher court, but he may not have the prosecution removed from the state to an appeals court. The Court acknowledged in Gibson that Strauder and similar cases were based on “the principle that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race.” [162 U.S. 591] Nonetheless, this equality before the law did not extend to potential racial bias not grounded in law, such as a biased prosecution. The Court found nothing wrong with Mississippi’s 1892 Jim Crow law requiring literacy tests for jurors, almost certainly designed to exclude blacks.

The Gibson decision shows that Justice Harlan, no less than the supreme judicial court of Massachusetts in Roberts, had no intention of judicially eradicating all instances of racial discrimination, but he wished only to expunge race from the laws of the states, believing this to be the original intent of the Civil War amendments. As Plessy would prove, he interpreted this principle differently than his colleagues, who acknowledged that the Constitution now guaranteed equality before the law, but did not necessarily preclude the use of racial distinctions in statutes.

In Plessy, Justice Harlan does not need to expand the scope of the Fourteenth Amendment, for he finds that Louisiana’s statutes have a racially discriminatory intent. He candidly addresses the obvious issue that the majority sidestepped: whether segregation laws were intended to harass a specific race, as in Yick Wo.

Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of commodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. [163 U.S. 557]

Here Justice Harlan exposes the game of Jim Crow laws, stating plainly what everyone knows but refuses to say, that segregation is motivated by racism. The intent to discriminate against blacks through law suffices to infringe upon Fourteenth Amendment rights, equality of conditions notwithstanding. This critique of “separate but equal” is not that the principle is untenable, but that in actual practice the separation of races by law is motivated by discriminatory intent targeting a specific race. Further, Justice Harlan contends that racial segregation is a violation of the personal liberty of men of both races:

If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each. [Loc. cit.]

This line of argument is followed with reductio ad absurdum examples, showing that the same principle of “separate but equal,” when irrespective of discriminatory intent, could be applied to segregate races on opposite sides of the street, or even apply a racial partition in the jury box. The majority observed that such laws would be struck down because they are “unreasonable” and intended to harass. Harlan’s argument is that the statute in question is also intended to harass a particular race. As for the standard of reasonableness, he rejects this jurisprudence from the classic standpoint of judicial restraint:

Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that, the legislative intention being clearly ascertained, 'the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.' Sedg. St. & Const. Law, 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are co-ordinate and separate. Each much keep within the limits defined by the constitution. And the courts best discharge their duty by executing the will of the law-making power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. [163 U.S. 558]

Harlan holds the traditional view that it is not for the courts to decide which statutes are reasonable or just, but merely to execute the legislative will, so long as the legislature has the power to enact the law in question. His viewpoint is originalist, as evidenced in his following comments, expounding on the notion of a statute’s reasonableness:

Statutes must always have a reasonable construction. Sometimes they are to be construed strictly, sometimes liberally,[2] in order to carry out the legislative will. But, however construed, the intent of the legislature is to be respected if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void, because unreasonable, are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent. [163 U.S. 558-559]

Reasonableness is to be presumed in a valid statute, as it is not for the courts to make judgments about the fairness of a law, but merely to execute the legislative will. When the courts strike down a law as “unreasonable,” that simply means that the statute was not suited to a legitimate end of the legislature; in other words, it fell outside of the scope of the legislature’s power. This is clear, for example, in Due Process cases, where a law limiting personal liberty must have a rational relation to a valid state objective. The absence of such a relation proves that the law in question is pursuing a goal outside of the state’s power. This determination of rationality does not involve a judgment about whether the statute is a particularly wise or fair way to achieve the goal in question, as such decisions are the function, indeed the purpose, of legislatures.

Justice Harlan’s jurisprudence of restraint respects the discretionary power of legislatures, so he does not presume to void segregation laws on the basis that they are unreasonable or unfair, but because they invalidly seek to undermine the intentions of the Fourteenth Amendment. The Civil War amendments clearly intended to abolish any racial caste system grounded in law. The Louisiana statute not only illicitly regulates the exercise of civil rights on the basis of race, but fails even at its purported objective to keep peace within society.

What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana. [163 U.S. 560]

Although, by his own admission, it is not the place of the courts to determine whether legislation is best suited to maintaining peace and security, Harlan aptly observes that the discriminatory intent behind the legislation attempts to establish a racial caste system. The decision in Plessy would set back the realization of the Fourteenth Amendment’s goals for decades, as blacks throughout the South continued to be regarded as inferior, a status seemingly sanctioned by segregation law. It would remain for the Brown case in 1954 to present arguments showing the sociological effects of segregation.

Harlan’s argument is not about social inequality, but rather race-based legal distinctions in the exercise of civil rights. Against the claims of judges in cases from Roberts to Plessy that it is not the role of courts to remedy social inequity, he responds that desegregation would not establish social equality. The “social” versus “civil” distinction is a non sequitur, since no one is advocating the use of legislation to impose social equality. Desegregationists such as Harlan were not judicial activists seeking to impose court-ordered remedies to social problems.

Justice Harlan notes that Chinamen, even though they are not permitted to become citizens, are permitted to share railway cars in Louisiana with white men, while black citizens are forbidden to do so. This fact could be used as evidence that the legislation targets a specific race, but Harlan focuses on the point that it is inconsistent with civil freedom to be subjected to criminal penalties for choosing to sit in the same coach on a public railway with citizens of another race. This leads to his general conclusion that the legislation is inconsistent with the personal liberty of both white and black citizens. Black citizens in particular are subjected to “a condition of legal inferiority” since they are restricted in the exercise of their civil rights. [163 U.S. 563] Justice Harlan believes that segregation as it exists is inherently unequal, and “hostile to both the spirit and letter of the constitution of the United States.” [Loc. cit.]


4. Brown v. Board of Education

The majority decision in Plessy became a powerful precedent, legitimizing Jim Crow legislation for over a half-century, as the courts repeatedly upheld the “separate but equal” standard. Although an originalist argument could be made against Plessy, as proven by Justice Harlan’s opinion, the consensus remained that racial segregation, whether of schooling or public transit, was consistent with the original intent of the Fourteenth Amendment.

When the “separate but equal” doctrine finally was challenged, it was not in the domain of Jim Crow legislation such as that treated by Plessy, but with the older institution of segregated schooling. Although the Court in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) would address the issue of segregation in the narrow domain of public education, the logic of its decision could be applied even more strenuously against Jim Crow laws of lesser pedigree and more overt racist intent. The Court’s radical repudiation of all previous jurisprudence regarding segregation was not grounded in an assessment of original intent, but appealed to current conditions of public education and sociological arguments that segregation was inherently unequal. Although the result of Brown might be justified on originalist grounds, the Court’s actual opinion abandons any attempt to determine original intent, in the first of many “activist” decisions where the Warren Court substituted its own judgment of a law’s justice for any coherent juridical principles.

In contrast with later rulings, the Court in Brown did not simply disregard original intent, but first found that an examination of the history of the Fourteenth Amendment yielded inconclusive evidence of legislative intent. Under reargument, the litigants debated the circumstances of the amendment’s ratification and expounded the positions of proponents and opponents of the amendment. The wide range of views expressed in 1868 leads the Warren Court to consider this evidence inconclusive.

The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty. [347 U.S. 489]

The mention of the opponents’ opinions here is odd, since one does not ordinarily derive legislative intent from those who opposed the legislation. Nonetheless, there was a range of opinion among legislators in 1868 as to how broadly the concept of “equal protection” ought to be applied. This disparity of opinion among legislators voting in favor of the same legislation is not uncommon, which is why it can be dangerous and misleading to gather legislative intent from legislative debates. Such debates and the opinions of legislators are not binding, but only the words of the law that is passed. When the legislator’s collective intent is ambiguous, the common procedure prior to Brown was to strictly construe the law as it was written, interpreting the phrases according to the standard legal usages at the time it was passed. The Warren Court, on the other hand, will use the ambiguity of legislative intent as an excuse to apply its own novel principles.

A similar ambiguity is to be found in the early history of the Amendment with regard to public education. This is because public education was practically nonexistent in the South, and even in the North school attendance was not compulsory. Thus the legislators who passed the Fourteenth Amendment could hardly have considered its potential implications on a society where public education was essential to the well-being of all citizens. The Warren Court ignores the existence of segregated public schools in Washington, D.C. and several northern states in 1868. Further, even if it is admitted that we can not determine from history the intended effect of the Fourteenth Amendment on public education specifically, this is no reason to alter the general construction of the Equal Protection Clause. One should instead take the existing construction and apply it to the specific circumstances of modern education, not change the general construction altogether.

The Court is careful to emphasize the absence of precedent regarding segregated schooling, in order to make the specious argument that the Plessy standard does not apply to education, but only to transportation and other public accommodations. Since, as we have seen, the “separate but equal” standard was in fact borrowed from an education case, and moreover, the segregation of schools was considered much less controversial than the Jim Crow laws examined in Plessy, the Court is on shaky ground. Evidently, Brown was intended as a compromise decision that would only desegregate schools while inconsistently allowing the Jim Crow laws to persist, thereby guaranteeing a unanimous vote.

Earlier Court decisions had applied the Plessy standard to public schooling, though the plaintiffs did not even challenge the constitutionality of school segregation per se. In Cumming v. Richmond County Board of Education, 175 U.S. 528 (1899), the Court rejected the plaintiff’s claim that it was unconstitutional to publicly fund a white girls’ high school and not a colored high school. Justice Harlan wrote the majority opinion, noting that the school board had the discretion to cut funding for colored high school students in order to fund more primary school black students. As long as black students had the opportunity to attend private high schools that were no more expensive than the publicly funded high school that was closed, they were not deprived of any rights. Racial segregation of schools was not challenged in this case, but the Court found there was no discrimination inherent in applying public funding unevenly throughout the population, as this was practically unavoidable. In fact, there was in this case a greater gender gap in funding than a racial gap, since the funded high school was for girls. The Cumming case is remarkable because it shows how far even Justice Harlan would go to uphold states’ discretionary rights in segregation cases, and also for its contrast with modern equal protection jurisprudence, which attempts to impose race and gender parity in public funding for schools, opposes unconditional public funding of denominational schools, and has little regard for the states’ discretion.

More recent cases considered only whether the material conditions of white and black schools were equal. The case in Brown, by contrast, had factual findings that all the “tangible” factors had been equalized in both schools. Since the Court considered the applicability of Plessy to public education an open question, it looked at “the effect of segregation itself on public education.”

Most critically, the Court adopted a novel juridical approach:

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. [347 U.S. 492-493]

This could be a reasonable approach if it is confined to examining the effect of segregation on public education. In that case, it would certainly be relevant to determine the state of education in the present, rather than in the past. For example, since compulsory education at the secondary level was practically required by 1954, the Court could view the existence of state-funded high schools for all races as an equal rights requirement, whereas in Cumming it sufficed to provide primary education. However, this approach runs the grave peril of attempting to determine the reasonableness or justice of a state law. It could further be abused to determine not only specific applications, but even general juridical principles. We will now look at how the Court in fact applied this approach.

The Court weakly appeals to recent rulings against segregation on account of inequality in “qualities which are incapable of objective measurement,” [Sweatt v. Painter, 339 U.S. 629, 634 (1950)], such as “ability to study, to engage in discussions and exchange views with other students.” [McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950)] These were cases where a black student had been admitted to a white postgraduate school, so segregating him from his classmates clearly reduced the quality of his education. The Court in Brown makes a weak extension of this argument to segregated primary and secondary schools, neglecting to note that the students in colored schools are sufficiently numerous to have stimulating discourse and exchanges of views. Instead, the Court appeals to another intangible, which is without legal precedent:

To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. [387 U.S. 494]

This sociological finding is invoked by the Court to conclude that segregated schools are inherently unequal, so the Plessy standard fails here. Similar findings were cited in previous cases, but were not invoked to overturn the legal outcome.

One problem with the application of this sociological finding is that it proves too much. The supposed psychological impact or inferiority complex imposed by segregated schools just as easily applies to all other forms of racial segregation, so it is inexplicable why the Court should find there to be anything special about schooling rather than transportation in this regard. Chief Justice Warren knew that his decision on schooling alone would have radical implications, as suddenly thousands of schools would have to be desegregated, despite countless past affirmations of their constitutionality under the Fourteenth Amendment. Could a sociological finding overturn long-standing legal precedent?

The Brown opinion is notable for its brevity, as well as its lack of legal reasoning. The first half of its argument is devoted to showing the impossibility of constructing a legal argument in the classical originalist manner. Then follows a mention of how public compulsory education has become a civic necessity in the last fifty years, which supposedly is a justification for ignoring previous jurisprudence. In fact, the modernization of education only solidifies what was already accepted in the 1890s: that public education is a civil right, and is therefore protected by the Fourteenth Amendment. The entire argument of Brown hinges on the dubious sociological finding that segregation impedes the ability of blacks to benefit from education. Even assuming that this finding is correct, this would not prove that it is impossible for the states to find legislative remedies that do not involve desegregation.

After a reargument the following session, the Court issued another unanimous decision ordering that all District Courts take care that public schools be desegregated “with all deliberate speed.” [Brown v. Board of Education of Topeka (II), 349 U.S. 294 (1955)] Recognizing the logistical complexity of this program, the Court chose this ambiguous phrasing to give the states time to comply. This level of judicial interventionism was without precedent, and the magnitude of the change was hardly commensurate with the paucity of argument presented in the Brown decision.


5. Analysis

The Court in Brown concluded that segregated schools were always unequal in effect, without presuming to characterize the state legislators’ intent as racist, as Justice Harlan had done. This decision would be followed by later cases condemning other forms of discrimination, culminating in the Civil Rights Act of 1964, which imitated the unconstitutional Civil Rights Act of 1875. This usurpation of power by the federal government over the regulation of states and private businesses was dishonestly rationalized by a more expansive understanding of interstate commerce, including even intrastate activities that affected interstate commerce. This deceit, void of legal precedent, would enable the expansion of federal power into the domain of social legislation. The effects of Brown were undoubtedly activist and opposed to states’ rights, so much so that advocacy of states’ rights unfortunately came to be associated with the defense of segregation.

It remains to be seen whether the result of Brown might have been achieved without judicial overreaching, using the sociological evidence presented or some other ground. Though we have noted the Court’s lack of concern for the original intent of the Fourteenth Amendment, declaring this to be indeterminate, the finding that segregation is inherently unequal certainly would indicate a violation of any reasonable construction of the Equal Protection Clause. The Court’s approach is not to say that the meaning of the Fourteenth Amendment has changed, but rather the facts that have come to light about segregated schooling make clear that this institution is invariably in violation of the Equal Protection Clause.

We have good reason to view this approach with some skepticism, considering that such sociological and psychological arguments existed for a long time, but only now did the Court choose to invoke them as a basis for changing the application of the Equal Protection Clause. Moreover, since the Supreme Court is a court of appeal, it is supposed to only make findings of law, not findings of fact. It is especially dangerous to make judgments of constitutionality on the basis of a social science in which jurists have little expertise, and whose conclusions are subject to scholarly criticism and revision. Such a jurisprudence could effectively leave law in the hands of social scientists rather than legislators, when it is eminently the role of the latter to make their own determination as to whether the findings of experts merit a legal remedy. The place for scientific experts is in legislative debate, not in the interpretation of law.

A partial retort to this critique is that the sociological evidence in Brown is not used to redefine the meaning of the Fourteenth Amendment, but simply to determine whether the segregated schools as they actually exist meet the established standards of the Equal Protection Clause. This answers the charge of using sociology to interpret law, but does not address the issue of the Supreme Court determining facts that ought to have been established in lower courts. Even if the facts asserted in Brown had been established, they would at most prove a general inequality in existing segregated schools, but not that the schools in question were unequal, much less that they could not be made equal. The supposed feeling of inferiority brought about by racial segregation might have been remedied by many means, such as acts of special support for black schools as a sign of good will by the state to the black community. The Court was exceeding its bounds and going beyond the facts by requiring the specific remedy of desegregation. The notion that segregation is inherently unequal, regardless of concrete circumstances, is contrary to logic as well as ordinary facts, such as the segregation of public restrooms by gender. The states ought to have been permitted the freedom to decide whether to remedy the supposed inequality of racially segregated schools by desegregating or changing the concrete circumstances that led to this inequality.

The latter suggestion may seem impossible to fulfill, and indeed such is the case, not because segregation is always unequal, but because the inequality asserted in Brown was nonexistent. While it is undoubtedly true that social prejudice, of which segregation was one likely manifestation, created an atmosphere where blacks were stamped with a badge of inferiority, there is no strong evidence that segregated schooling was itself responsible for this sense of inequality, much less for underachievement by black students. As defense counsel John W. Davis showed in the first hearing of Brown in 1952, the sociological evidence presented by the plaintiffs actually contradicted their assertion that segregation promoted a sense of inferiority. In the famous doll experiments, for example, where the plaintiffs showed that 62 percent of black children in the South preferred white dolls over black dolls, they neglected to mention that 72 percent of black children exhibited such preference in the non-segregated northern states. Similarly, when asked which doll was bad, 49 percent of children in the South said the black doll, while 71 percent of northern children said the black doll was bad. When asked which doll was nice, 68 percent of northern children picked the white doll, when only 52 percent of Southern children picked the white doll. Clearly, the notion that segregation was responsible for a sense of black inferiority was contradicted by the plaintiffs’ own evidence, when viewed in its entirety.

Given the evident weakness of the plaintiffs’ argument, it is understandable that the Court rejected it in the first hearing of Brown, but Justice Felix Frankfurter was able to summon a consensus to have the case re-argued. At the second hearing, he urged a focus on the sociology, at the expense of any attempt to determine legislative intent. By declaring the historical background of the Fourteenth Amendment to be “inconclusive,” the Court could give itself leeway to re-interpret the amendment according to current circumstances. Frankfurter’s agenda was aided by the appointment of Earl Warren as Chief Justice. Warren’s activist inclinations, combined with the support of the Justice Department, trumped legal reasoning. Ordinarily, in cases where original intent cannot be determined, one turns to a strict construction of the text as it reads according to the meaning of its terms at the time of passage. Instead, the Warren Court appealed to the progress of psychological knowledge as revealing the incompatibility of segregation with the Equal Protection Clause.

The Court’s argument in Brown was intellectually dishonest, deliberately eschewing both legal reasoning and serious criticism of the sociological evidence in order to achieve the morally desired result. The decision naturally won widespread praise, as most journalists conflated the role of judges as interpreters of laws with the popular image of a dispenser of justice. Those outside the legal community have little understanding that it is not for a judge to determine whether a law is just, and the nation would pay a heavy price for pursuing the morally noble end of desegregation through illicit means. Brown ushered in an era of “activist” jurisprudence where the Court interpreted laws and the Constitution not according to established principles of construction, but according to the social agenda the justices wished to promote. This practice of legislating by injunction has politicized the Court, and removed most civil rights decisions from the democratic sphere. As the demographics of jurists tend to be socially liberal, the courts in the United States have been zealous promoters of a leftist social agenda in the guise of enforcing the Constitution. The successors of the Warren Court are far more ambitious; rather than simply declaring original intent inconclusive, they will often regard both original intent and strict construction as irrelevant, instead postulating a “living Constitution” whose terms are to be interpreted with elasticity according to the changing times. This concept of a “living Constitution” confuses the legitimate principle of applying an unchanging law to changing concrete circumstances with the illicit distortion of a law’s meaning according to the desires of each generation. This sophistry of changing the law’s meaning eviscerates the principle of rule of law, and subjects the nation to the discretion of judges. Judges are entrusted with power, free from political consequences, because they are to be constrained by the laws they must apply to each case. Without being constrained by well-defined rules of construction, justices become arbiters of the law, and effectively become super-legislators.

Although the argument presented in Brown was practically nonexistent, we may reasonably ask whether Plessy might have been partially or completely overturned on legitimate grounds, perhaps along the lines of Justice Harlan’s originalist dissent. If a legitimate line of argument existed, it is perplexing that the Court in Brown would choose to make its own work difficult by relying on weaker argument. One possible explanation is that the Court was not ready to completely overturn Plessy, so for that reason they did not invoke Harlan’s dissent. Brown was worded so that Plessy was declared inapplicable to public schooling. Plessy was not overturned, contrary to the exclamations of some newspapers, and segregation in other aspects of life continued for another decade.

Justice Harlan had shown a more promising path toward prohibiting racial segregation, not by speculating about sociological effects, nor by finding elasticity in the meaning of the Fourteenth Amendment, but by finding a clear intent to isolate and discriminate against a specific race, making Jim Crow laws subject to the same criticism as the statute voided in Yick Wo. While the accusation of racist intent on the part of Southern legislatures requires evidence, such evidence would not have been difficult to gather, either on the part of the legislators supporting the laws, or on the part of blacks opposing them. Harlan’s critique would be on less solid ground regarding racial segregation of schools, as there was less opposition to this system on the part of blacks, and this institution existed even in northern states, with no apparent intent to harass. The majority in Plessy had by far the stronger argument for the original intent of the Fourteenth Amendment with respect to public education, so it is ironic that Brown should find segregation unconstitutional only in public education, where the legal argument was weakest.

Acknowledging that there is a legitimate diversity of opinion within any school of jurisprudence, an assessment of historical facts generally favors the position that racially segregated schools could be constitutionally licit under the original meaning and intent of the Fourteenth Amendment. Other forms of segregation introduced in the Jim Crow era were clearly subject to the criticism of racially discriminatory intent, as in Yick Wo. A similar argument might in principle be applied against segregated schooling, but there would have to be solid evidence of discriminatory intent, distinct from what was tolerated in Washington shortly after the passage of the Fourteenth Amendment. We must remember that Plessy, in some ways, as Justice Harlan observed, was a novel, “activist” decision, expanding the tolerance of segregated schooling to a general principle permitting segregation in all walks of life, with the clear intent to discriminate. Southern states used this “separate but equal” principle to undermine the plain intent of the Fourteenth Amendment to abolish racial discrimination under the law, while keeping only its superficial meaning.

This last point is important, for it shows the value of original intent, as opposed to a simple construction of text divorced from intent. If law is binding because it is the manifestation of the sovereign will, we undermine that sovereignty if we ignore that will, otherwise known as intent, when we interpret the law. Granted we often have a highly imperfect knowledge of original intent, which the language of the law restricts, it is nonetheless an essential part of the meaning of the law, without which the law becomes grounded in nothing but language, in all its elasticity. For this reason, judges before the Warren Court took for granted the importance of determining original intent; this was not an idiosyncrasy of a particular school of thought.

Original intent has fallen on harder times recently, and is subjected to ridicule through caricatures of the position of Judge Robert Bork, who might be fairly criticized for placing excessive importance on indeterminate legislative intent over the clear language of a statute. For this reason, Justice Scalia favors original meaning, ignoring legislative debates and strictly constructing the statute according to its language, but interpreting its phrases according to the generally held meaning at the time it was written. This method of “strict constructionism” is closer to the jurisprudence of Justice Harlan, who nonetheless made explicit reference to the “intent” of the Fourteenth Amendment. Whether a judge regards intent as important or not can send a strong signal as to whether he values the legislative will or his own. Any judge may err in his assessment of the legislative will, as originalists are as fallible as any other judge, but to not even attempt to discover this will is an inexcusable usurpation of sovereignty.

A possible weakness of original intent might be seen in the school segregation cases, where it might be reasonably judged that the legislative intent by the Fourteenth Amendment was in opposition to the principle enshrined in the language of the amendment. In other words, admitting that Congress did not want schools desegregated in 1868, the amendment they passed, as it was written, was in contradiction with this desire, whether they recognized it or not. Thus, the language of the amendment ought to take priority over legislative intent, and segregated schools are in violation of the Fourteenth Amendment, whether its authors realized it or not. While we certainly must allow for the possibility that legislation can have unintended consequences, and regard the language of the ratified law as more binding than the private intentions of the ratifiers, there should be a general presumption of rationality when interpreting law, so we assume the law as written matches legislative intent, unless the language compels us to find otherwise. In the case of segregated schooling, we must assume that Congress had no intention of abolishing segregated schools when it passed the Fourteenth Amendment, and should this regard this intention only if no reasonable construction of the Amendment’s text allows us to accept segregated schooling. In fact, such a construction exists, namely allowing the state discretion over education policy as long as equal civil rights are not infringed and there is no discriminatory intent. Thus the courts in the immediate aftermath of the Fourteenth Amendment continued to sanction racially segregated schooling without controversy, while voiding other laws that were deemed in violation of the new amendments. There is no basis for setting the Fourteenth Amendment in opposition to its ratifiers on the issue of school segregation.

For all forms of racial segregation to be unconstitutional, we would need an amendment to the effect: “Congress or the states shall make no law respecting race or requiring their separation….” Needless to say, had such an amendment been proposed in 1868, it would have had little chance of success, even in a Republican-dominated Congress. This fact alone proves that declaring segregation unconstitutional is contrary to the sovereign will expressed in the Fourteenth Amendment. Brown v. Board of Education came at a time when sentiment against segregation was widespread, yet still short of the requirement of three-fourths of the states to amend the Constitution. The Supreme Court was widely praised for its decision as reflecting the current will of the people, or at least the great majority of them. Rather than wait for the cumbersome process of amending the Constitution, recent justices have found it more expedient to reinterpret the existing text according to the perceived sensibilities of the current age. The sovereign will is not expressed through legislators ratifying an amendment, but by justices acting as moral barometers assessing the signs of the times.

The fundamental fault of this novel jurisprudence of a “living Constitution” is its misappropriation of the sovereign will from the legislature to the judiciary. Congressmen are elected every two years precisely in order to be responsive to the changing beliefs of the populace. Even before Brown, racial segregation was being eroded through state legislation in response to increasing moral revulsion toward the system. Dissatisfied with the rate of progress, the Supreme Court sought to impose a federal remedy, with the cooperation of the Eisenhower administration. Since the United States reserves sovereignty to the states except for powers expressly granted to the federal government, the only way to lawfully expand federal power is to amend the Constitution. The Supreme Court short-circuited this requirement by revising the Constitution according to its own assessment of the popular will. Most importantly, it inaugurated an era of effectively legislating by injunction, and using the Fourteenth Amendment, the Commerce Clause, and other elements of the Constitution as false justifications for the expansion of federal powers at the expense of the states. Under Chief Justice Rehnquist, the Court relented and showed greater reverence for state sovereignty, while retaining most of the precedents established in the Warren and Burger eras.

We have noted that originalism today is usually presented only in caricature, and most leading legal scholars reject the notion that original intent can be determined, on semantic or rhetorical grounds. These attempts to depict originalism as unworkable wilfully ignore the facts of the bulk of legal history, when originalism was applied by virtually all judges, however imperfectly. It is coherent to disagree with originalist jurisprudence, but to characterize it as unworkable is disingenuous for anyone who is historically literate. The alternative, however noble-sounding its language, effectively says that the law means whatever we wish it to mean today. No honest thinker can deny that this form of jurisprudence allows judges much broader discretion than the standard of determining original intent or meaning. While there is certainly room for error in originalist interpretations, in contemporary liberal jurisprudence there are no formal limitations on how a judge might re-interpret the Constitution to meet the needs of the day. To be clear, we are not criticizing the legitimate application of constitutional principle to new facts and circumstances, but rather the claim that the meaning of the constitutional principles themselves change with time. This claim is backed with a wealth of semantic, psychological, and sociological argument that can be easily dismissed by anyone with a solid grounding in logic, but perhaps more pertinently, they are extra-legal arguments. Taken seriously, they would imply the practical impossibility of written law, and require rule by judges.

The type of jurisprudence inaugurated by Brown is motivated by a desire to achieve the supposed morally correct result. It is a method of analysis better suited for an advocate than a judge, so it is hardly surprising that it should be favored by most lawyers. Legal scholars pride themselves on neutrality with regard to outcomes, yet this common academic conceit is belied by their epistemic assumptions, which preclude knowability of original intent and are biased toward a dynamic concept of reality where meaning itself cannot be fixed independently of changing perceptions. This subjectivist morass is a hallmark of contemporary liberalism, and undermines the possibility of any development of knowledge by accretion of tradition. Legal interpretations have historically been grounded in precedent, which in turn has been grounded in legislative intent, so an anti-traditionalist, subjectivist epistemology renders jurisprudence in the traditional sense impossible. The shoddy philosophy underlying modern legal scholarship involves nothing less than a new understanding of what law means, and conveniently enough, this new understanding grants far greater power to jurists themselves.


See also: Common Law/ Civil Juris. | Legal Issues of Roe


[1] Harlan, it will be seen, was a “strict constructionist” only in the broad sense of originalism, i.e., constructing text according to its intended meaning at the time of passages. He was not a strict constructionist in the sense of always favoring a narrow, literal construction of statutory text. Sometimes a legislature intends for terms in its statutes to be construed broadly, in which case originalism demands a more liberal construction.

[2] Early printings render this word as ‘literally,’ but this is likely an error, as the context makes clear that this is contrasted with “strictly.” We have seen that Justice Harlan favored a less strict construction of the Fourteenth Amendment on the grounds that this was more faithful to legislative intent. Also see Note 1.

© 2007, 2015 Daniel J. Castellano. All rights reserved.