Michael Dorf recently argued that originalism cannot justify Brown v. Board of Education (1954) and any constitutional interpretive theory that fails to justify Brown should be rejected. His argument has provoked many responses.
One response has been to question the claim that any single result should determine the acceptability of a constitutional theory. Any constitutional interpretive theory that limits interpreters will some of the time lead to bad results. Moreover, virtually all constitutional theories recognize that the original Constitution allowed (and to some extent protected) slavery, and that certainly was a bad result.
Another response is to question the claim that originalism cannot justify Brown. In my view, there are strong (although not conclusive) originalist arguments in favor of Brown made by Michael McConnell and others. I would add that McConnell and others often treat Congress’s passage or at least allowance of segregated schools in the District of Columbia as strong evidence against the originalist case for Brown. But that is not true. As I argue in this paper, the equality requirements of the Fourteenth Amendment did not apply to the federal government and therefore actions by the federal government do not reflect anyone’s view of the Fourteenth Amendment’s content.
Yet another response is to note that other theories, such as living constitutionalism or Bobbit’s modalities theory, might not justify Brown, at least under various interpretations. In other words, it is not clear that the proper application of these theories would justify Brown and therefore those theories also fall prey to Dorf’s criticism.
Here, I want to raise a different response to Dorf’s claim about Brown. When people make the argument about the importance of Brown, they are usually implicitly assuming that, without that decision, Jim Crow as a whole would have been constitutional. But I don’t buy it. There are two basic problems with this implicit assertion.
One problem is that, even if Brown was wrongly decided, there is a very strong argument that Plessy v. Ferguson was wrongly decided. Brown involved government-funded education, which might not have been a right that was protected against discrimination. By contrast, Plessy involved the right to contract, which was thought to be a core right that would have been protected. Moreover, Plessy relied on the idea of separate but equal. Even if one believed that this was a plausible understanding of equality, there was another understanding—one which forbade all racial discriminations as to civil rights—that would have led to the opposite result in Plessy. And that understanding of equality should have been preferred, because it furthered the purpose of the Fourteenth Amendment as means of protecting the rights of the former slaves. Without Plessy, much of Jim Crow would not have been allowed.
Moreover, one cause—if not the main cause—of Jim Crow was the denial of the right to vote to blacks, denials that often contravened the original meaning of the Constitution. To begin with, the Fifteenth Amendment prohibited racial discrimination as to voting. While it might not have reached every manipulation that the Southern states used against black voting, it certainly would have prevented many of them. Yet, the Supreme Court refused to enforce the Fifteenth Amendment, most notably in the 1903 case of Giles v. Harrison, where the Progressive Justice Holmes refused to order the registration of blacks who were wrongly denied the franchise.
Even more clearly, section 2 of the Fourteenth Amendment required that states that denied the right to vote to blacks should have their representation reduced in the Congress. Yet, neither the Congress nor the courts ever reduced their representation. This provision was probably broader than the Fifteenth Amendment and so would have reached all of the manipulations of the Southern states. Had the Southern states had their representation reduced, this would have either led them to confer rights or significantly reduced their power at the national level to block civil rights legislation.
Ultimately, if the original meaning had been enforced, the heart of Jim Crow would have been cut out without Brown. That is not to say that the decision was unimportant. But the common assumption that without it Jim Crow would have been untouched is deeply mistaken. The original meaning would have greatly, if not perfectly, protected blacks, even without Brown.