Originalists can and do support Brown v. Board, and it's important to understand why.
Over at the Democracy Blog, Akhil Amar reviews Justice Scalia and Bryan Garner’s book on Reading Law. Amar argues that Scalia and Garner adopt too strong a textualism, criticizes them for misreading William Blackstone’s absurdity canon, and argues that the Vice President cannot preside at his own impeachment trial.
As readers may remember, I myself have argued that the Vice President cannot preside at his own impeachment trial. I founded that result on a reading of the absurdity canon, although I also thought that there was something to be said for the view that a trial may not refer to a proceeding where the judge and defendant are the same person. See here.
While Amar argues that Scalia and Gardner misread Blackstone, Ed Whelan (link no longer available) and Mike Ramsey defend Scalia and Garner of the charge, claiming that they are not basing their version of the absurdity doctrine on Blackstone. I shall leave to others whether Amar or Whelan and Ramsey are right about this.
Instead, let me say that I agree with Amar that Blackstone had a broader version of the absurdity doctrine than Scalia and Gardner recommend. The question though is whether Blackstone’s doctrine is the proper approach to interpreting the Constitution.
My own view – that of Original Methods Originalism – argues that the Constitution should be interpreted based on the interpretive rules that would have been applied to it at the time of the Constitution. There is no doubt that Blackstone’s interpretive approach was very influential at that time, but I believe that a more textualist version of Blackstone was the dominant approach when the Constitution was enacted.
Departing from the text of a law was common in England during the 16th and 17th centuries. But beginning in the 18th century at approximately the time of the Glorious Revolution, a movement towards a more textualist approach arose. This was in part due to an increasing separation of powers. See here.
Blackstone wrote in 1765, whereas the Constitution was enacted nearly 25 years later. So the question is what the interpretive rules were at that time. My sense is that they were more textualist than Blackstone’s but less so than Story’s version in 1833. Moreover, because the Constitution adopted a stricter separation of powers than the English constitution did, it also made sense to interpret it with more textualist interpretive rules.
How then should the absurdity rule have been understood? My best guess is that is that Chief Justice Marshall’s statement in 1819 in Sturges v. Crowninshield states the correct rule.
Although the spirit of an instrument, especially of a constitution, is to be respected no less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words, is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.
As I have said about this in the context of the Vice President presiding at his own impeachment trial, “Marshall, I think, is being a bit colorful here, but the point is clear: to infer that the Framers did not intend what they said, one would have to conclude that nearly everyone would agree that the Vice President should not be able to preside at his own impeachment trial.”
In the end, then I stand somewhere between Amar and Scalia and Garner, and between Blackstone and Story, with Chief Justice Marshall’s moderate version of the absurdity rule.