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.