Originalism must construct rules of precedent that mediate between the value of following the original meaning and the value of constitutional settlement.
The 59th anniversary of Brown v. Board of Education should recall what that great decision did not do—overturn the racial segregation precedent of Plessy v. Ferguson (1896). Only by revisiting Justice Harlan’s classic dissent would segregation and Jim Crow in the law be finally overcome. Moreover such a Court opinion in Brown would have given civil rights laws a principled dignity and as well promoted an originalist jurisprudence that both protected individual rights and restrained government. This jurisprudence would be based on the Declaration of Independence.
Indeed, the brief for Homer Plessy argued that “The Declaration of Independence … is not a fable as some of our modern theorists would us believe, but the all-embracing formula of personal rights on which our government is based.” It is the “controlling genius of the American people.” And prior to the Plessy setback, as Charles Lofgren shows in his meticulous The Plessy Case (1987), this argument helped win anti-segregation suits at the state level.
With the Declaration in mind, Harlan uses a robust understanding of the 13th Amendment and the privileges and immunities clause of the 14th Amendment against segregation statutes. Citizens, including those who served as soldiers in the Civil War, deserve the recognition of having equal rights. Segregation is among the “badges of slavery or servitude” the Amendment is intended to abolish. The citizenship argument is crucial for Harlan, as we see in his famous invocation of the color-blind Constitution.
The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens
But what of Harlan’s praise of the white race as “dominant”? Did Harlan simply fall prey to the Progressive racialist theories of the time? But note his qualification that the white race will remain so “if it remains true to its great heritage and holds fast to the principles of constitutional liberty.” At the core of those principles is the Declaration of Independence, and at its core is “all men are created equal.” Even the despised alien “Chinaman” can partake of rights denied a black citizen, as Harlan sardonically notes later in his opinion. To deem itself “superior” the white race would have to deny its superiority as a caste. And in so casting off its badge of mastership, it would also remove the badge of servitude from blacks. This was Lincoln’s definition of democracy, “As I would not be a slave, so I would not be a master.”
If the Civil War Amendments truly overruled Chief Justice Taney’s caricature of originalism and the Declaration in his Dred Scott opinion, then Harlan’s logic would have to prevail. But the courts have not adopted his understanding and thus not only the Plessy logic but the Dred Scott distortion of our founding as racist still prevail, not just in the courts but also in scholarship and increasingly in the public mind. Such an understanding of the founding is surely insinuated in former law professor Barack Obama, as both his autobiographies show.
From the Brown Court’s reliance on occult social science (eviscerated by Hadley Arkes, among others) and its Plessy majority reasonableness standard we get the bureaucratic enforcement of civil rights, racial and ethnic preferences, and limitless government. The Declaration points in quite another direction.