The Growing Originalist Case for Brown v. Board of Education

In my prior post, I noted that the unconstitutionality of Jim Crow is often mistakenly considered to be identical with the constitutionality of Brown. In this post, I want to note some new evidence that provides additional support for the constitutionality of Brown under the original meaning.

As I noted, there are two issues concerning Brown that raise questions under the original meaning. First, is separate but equal constitutional or does the Constitution forbid such laws as racial discriminations? Second, is the right to attend a public school a civil right or otherwise within the scope of the 14th Amendment equality requirement?

The leading article on the constitutionality of Brown under the original meaning is Mike McConnell’s paper, which presented a range of evidence to support both points. Also significant is John Harrison’s paper, which argues as well for both points in a wider treatment of the 14th Amendment. But there have been new arguments that have been made in the last several years that provide additional support.

First, my own paper, published last year on Originalism and the Colorblind Constitution, helps to support the argument that separate but equal was not considered constitutional as to public education. One of the most common arguments for separate but equal comes from the segregated Washington D.C. public school system that was operated under Congress’s supervision. If Congress segregated (or allowed the segregation of) the DC schools, then how could the 14th Amendment have forbidden it? In the paper, I argue that legislation passed by the Congress should not be read as informing the meaning of the equality requirement of the 14th Amendment. The 14th Amendment equality requirement was not applied to the federal government and therefore one cannot assume that the Congress was reflecting its views of the Amendment when it passed legislation. Thus, if Congress’s actions with respect to the D.C. public schools did not involve an interpretation of the 14th Amendment, this piece of evidence becomes much less important.

Second, David Upham’s paper given at the Originalism Works in Progress Conference, entitled Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause, provides additional support that separate but equal was not considered constitutional. David presents a significant amount of evidence that laws forbidding interracial marriage were deemed unconstitutional after the passage of the 14th Amendment, especially by Republicans. While David’s interpretation appears to involve substantive rights under the Privileges or Immunities Clause, this still cuts against the idea that people at the time believed that separate but equal respected everyone’s rights equally.

Third, Steven Calabresi with coauthors has published a couple of different papers that provide additional support for the claim that public education was a civil right or otherwise within the scope of the 14th Amendment equality requirement. Calabresi and his co-authors conclude that in 1868, “at least thirty of the thirty-seven states had provisions in their respective state constitutions that seemed clearly to recognize the right to a public school education, and an additional three states arguably had a right to a public school education in their respective state constitutions.” Thus 81 percent of the states clearly had a constitutional right to public education and perhaps as many as 89 percent. While Calabresi and his co-authors discuss various complications, this is both surprising and surprisingly strong evidence for treating public education as a fundamental right.

Overall, then, this new evidence places the conformity of Brown with the original meaning on an even stronger footing.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. gabe says

    Mike:

    Help me out on this one. I am having some difficulty following your argument.

    In one instance you state that the contemporary conditions, i.e. segregation of D.C schools, validate the premise that the 14th Amendment did not apply to the Federal Government.
    In the second instance, you cite the large proportion of States that deemed education to be a civil right and by implication looked askance at segregated schools.
    By extension then, segregation violates the 14th Amendment.

    So in one case, we use contemporary conditions to assert support for Brown; however, could we not also use contemporary conditions to assert the opposite?

    I recall reading a piece at SSRI (you may have been the author but my memory fails me) in which a 14th era Congressman asserted that there was no need to include the Federal Government in the 14th BECAUSE the federal Government would never discriminate. Now this does support the contention that the 14th did not apply to the Federal Government as a matter of constitutional law. However, it does leave open the question of whether segregated schools were in fact unconstitutional if a) the seat of government (D.C.) allowed the practice and b) if, in the minds, of the drafters / ratifiers one of the stated assumptions was that the Federal Government would never discriminate. The two seem to be in conflict.

    I personally think segregated schools are not permissible. However, I see some problems with the argument as stated above.

    Help me out here.

    take care
    gabe

  2. Richard S says

    Is it worth noting, in this context, that Brown didn’t rule that separate but equal was unconstitutional simply speaking. They ruled that it was not workable.
    That’s different from saying Harlan was right, and that the constitution is color blind.

  3. Mike Rappaport says

    Gabe you write:

    In one instance you state that the contemporary conditions, i.e. segregation of D.C schools, validate the premise that the 14th Amendment did not apply to the Federal Government. In the second instance, you cite the large proportion of States that deemed education to be a civil right and by implication looked askance at segregated schools. By extension then, segregation violates the 14th Amendment. So in one case, we use contemporary conditions to assert support for Brown; however, could we not also use contemporary conditions to assert the opposite?

    A quick response. The federal government’s actions do not support the unconstitutionality of separate but equal. That these actions are by the federal government, which was not governed by the 14th Amendment, eliminates an argument for concluding that separate but equal is constitutional.

    The states treating education as a civil right comes from a different source. There was evidence at the time that privileges or immunities were fundamental rights that virtually all states protected. That a large number of states protected as fundamental law public education suggests it was a civil right.

  4. says

    Mike, Gabe, I am going to raise a discussion myself. I agree w/Mike that “concluding that separate but equal is (un)constitutional”, and ” public education suggests it was a civil right”.
    I know that Gabe is aware of my next sentence, I do not know if Mike has read it at some time. I was educated in (non-segregated) schools on the Northeastern shore of Massachusetts before B v BoE. And, stepping back in time, when the Fourteenth Amendment was being debated, the Northeastern delegates were concerned w/the unconscionable ”black laws” of the South; the Northeastern delegates had no reason to feel that the Fourteenth Amendment even applied to them.
    (refer RB).
    “… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; …” Has any State made or enforced any law that has abridged the p. or i. of c’s – OF the U.S.? Note that this sentence does not specify State abridgement of p. or i. of c’s – OF a State. This is the answer to why the D. of C. found itself not abridging the p. or i. of c’s — of the U.S.? Not only that, it was Congressional, and no mention of the Federal Court exists within this Amendment, or in Section 5. Consequently, the Federal courts, by an unenumerated phrase “of incorporation”, had no business within the Fourteenth Amendment — to B. v. BoE, either; it was a State issue, if the Congress felt a need to discuss it w/a State.
    This why I have a problem w/the whole discussion of Brown v Board of Education – the federal court(s) should have declined, and deferred it back to the Supreme court of the State.
    I welcome any further comments from Mike and Gabe.
    Respectfully, John

  5. says

    Mike, I do not know if you have reading Donald W. Livingston’s series “Lincoln’s Inversion of the American Union”, at Nomocracy Blog; it does have a relation to your conception of the Supreme Court and the Fourteenth Amendment.
    The following, he states by reference (9), “… shows just how far some Americans had wandered from the original conception of self-government … It was during this period of “Reconstruction” that the Fourteenth Amendment was floated. This amendment, since the 1950s, has been manipulated by the Supreme Court to affect a vast transfer of power from the states to the central government, making it virtually impossible for the states to maintain those independent substantial moral communities protected by the powers reserved in the Tenth Amendment. It is fitting that this amendment, which had a corrupt and illegal origin in Congress, was [(according to Forrest McDonald's analysis)] never [authoritatively] ratified by the states, and is, thus, not a part of the Constitution! It was simply declared by Congress to have been enacted, something Congress had no authority to do.”
    Respectfully, John

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