Robert Bork was only the beginning of the case and does not mark the best understanding of originalism today.
On the book review section of this site, Paul Moreno reviews David O’Brien’s Justice Jackson’s Unpublished Opinion on Brown v. Board of Education. While I agree with some of what Moreno says, I must take exception with his claims about the original meaning and Brown.
[As a law clerk] Rehnquist prepared a memo for Jackson, “A Random Thought on the Segregation Cases.” This memo made the argument, whose truth almost all scholars today admit, that the Framers and ratifiers of the Fourteenth Amendment did not intend to prohibit segregation in the public schools.
For example: The same Congress (the 39th) hat submitted the amendment to the states provided for segregated schools in the District of Columbia. The ratifying states maintained segregated school systems. Even the 43rd Congress, whose Civil Rights Act of 1875 was the furthest step in “radical” Reconstruction and the precursor of the Civil Rights Act of 1964, did not require desegregated schools. Even Justice John Marshall Harlan, the lone dissenter in Plessy v. Ferguson (1896), which upheld segregation in transportation, accepted not just segregating blacks from whites but the complete exclusion of blacks from the public schools.
These are outdated claims about the originalist status of Brown. While I have written about these matters before, it is necessary to correct these errors whenever they occur. It is especially important when a scholar at Hillsdale College like Moreno repeats them.
In this and my next post tomorrow, I will criticize Moreno’s claim.
Let’s begin with Moreno’s claim that “almost all scholars today admit that the Framers and ratifiers of the of the Fourteenth Amendment did not intend to prohibit segregation in the public schools.” I can’t speak for history scholars, but among originalist law professors this is simply not true. I would describe the situation as follows: There is at the least a split among originalist law professors as to whether the result in Brown was correct under the original meaning. In fact, my sense is that most “younger” originalists believe Brown was correct, whereas many “older” originalists believe it was incorrect. My own view is that the matter is not clear, but that Brown’s originalist advocates have the stronger evidence.
In particular, various originalist scholars have argued that Brown is correct, including Michael McConnell and John Harrison. These arguments have persuaded many originalists. Alas, Moreno does not mention or discuss either work.
Tomorrow, I will discuss the evidence in more detail.
Before concluding, I should note that, after writing these posts, I saw that co-blogger James Rogers also wrote about this aspect of Moreno’s review. While Rogers focuses on the original intent versus original public meaning aspect of the issue, I believe the matter is more general. Even if one looks to the original intent—understood in a plausible way (rather than what is specifically in the mind of the writers, which is not a good way to figure out original intent)—the original intent, I would argue, is not clearly against the holding in Brown.