Originalism is not merely a theory of how the Constitution should be preserved but also of how, precisely, it should change.
Over at the Originalism Blog, Mike Ramsey has a great critique of Erwin Chemerinsky’s attack on Originalism. As Mike points out, Chemerinsky’s attack includes some very weak points, including the claim that the Constitution’s use of the term “he” means that under originalism women could not serve in office. Alas, attacks on originalism often engage in bad originalism.
The strongest Chemerinsky point that Mike discusses is the former’s claim that under originalism, Brown v. Board of Education was wrongly decided:
The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. Under Justice Scalia’s theory of originalism, Brown v. Board of Education was wrongly decided.
Not so, according to Michael McConnell. The Reconstruction Congress did not pass a statute segregating DC schools; the DC segregation was done at the local administrative level. And, as Professor McConnell further shows, there are good originalist arguments in favor of Brown’s result. Not every originalist accepts them, and of course Dean Chemerinsky isn’t obliged to, but it is not obvious that Brown is inconsistent with originalism (and in any event the statute he relies on as his sole support didn’t exist).
Without discussing the entire Brown question, let me add an additional point. Even if the Congress had passed a statute allowing or requiring segregation of the schools in Washington, D.C., that does not necessarily tell us what the meaning of the 14th Amendment was. The equality requirement of the Amendment – whether derived from the Equal Protection Clause or the Privileges or Immunities Clause – did not apply to the federal government. Thus, the federal government’s actions cannot be assumed to reflect its views of the meaning of the 14th Amendment.
If one relied on the legislation that Congress passed at the time of the 14th Amendment to inform its meaning, one gets a problematic Amendment. Congress both passes some laws that benefit minorities and other laws that harm them. It is hard to reconcile this with a real equality requirement. It is much better to recognize that Congress did not believe it was bound by the equality requirement of the Amendment.
Why would Congress pass an Amendment that prohibited states from discriminating in ways that it would then engage in itself? There are various possible explanations, but the best one in my view is that the Congress could not really agree on the version of the equality requirement that they wanted to impose generally. Despite their disagreement, they knew they needed to impose a requirement on the states – otherwise they would discriminate viciously – and therefore chose one. By contrast, they were much more trusting that the federal government would behave properly and therefore decided that it was not essential to impose the limitation on it. (For a longer treatment and other explanations, see here.)
Since the Congress was not subject to an equality requirement, it could pass laws on an ad hoc basis that different shifting majorities believed were acceptable. These laws may not have all followed a single principle, but that does not mean that such a principle was not imposed on the states and that that principle did not differ from some of the laws Congress passed.