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Moreno on the Original Meaning and Brown v. Board of Education: Part I

On the book review section of this site, Paul Moreno reviews David O’Brien’s Justice Jackson’s Unpublished Opinion on Brown v. Board of Education.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.

Moreno writes:

[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These are outdated claims about the originalist status of Brown.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.

Reader Discussion

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on January 15, 2018 at 10:33:49 am

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Image of Moreno on the Original Meaning and Brown v. Board of Education: Part I | Top 100 Blog Review
Moreno on the Original Meaning and Brown v. Board of Education: Part I | Top 100 Blog Review
on January 15, 2018 at 15:32:07 pm

In my white home town, one high school had the best music program, a different one had the best football team (all four years i was in high school!), another had the best/only computer arts program, another one had the lowest crime and teen birth rate. (Which one do you send your artsy daughter to?) None of these schools were equal. The whole idea of "equal" schools is a myth.

Plessy was based on the idea that schools only have english, math, and science and all had equal quality teachers. Today, where each high school claims its own specialty, there's no such thing as "equal" schools. In the universities in my state aren't equal. One specializes in chemistry and oceanic science, another specializes in a&m (agriculture and mining), another specializes in the humanities. And the last one has the best football team. Are they "equal"?

If you black kid can only go one of these schools and the other ones are reserved for whites, is he really "separate but equal" from the whites? Or is the only way he's equal is if he can go to any school that has a specialty--which is all of them.

The original meaning of the fourteenth amendment was equal opportunity--that means equal access to all schools because all schools excel in different things.

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Dave Rues the Day
on January 15, 2018 at 18:09:15 pm

Let's say I go to a high school where the students identify 50/50 democrat-republican, and the other high school, the students identify 90/10 democrat-republican. I, the head of the Young Republican Club at my school is transferred to the other high school, where they not only don't have a Young Republican Club, but they have an Antifa gang that gets all conservative speakers disinvited, while calling the inviter (me) "Uncle Tom".

Are the schools equal? Is Berkeley "equal" to George Mason University because they offer the same classes?

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Uncle Tom Sowell
on January 16, 2018 at 02:46:22 am

How about the original intent and U.S. v. Virginia Military Institute? Let's say your daughter wanted to be a great composer, sculptor or architect and told she could only study under any woman with other woman (all woman school--both teachers and pupils)--and this was "separate but equal" since there are just as many famous women among the great composers, sculptors, and architects; that is, she was taught the entire history of music or sculpture or architecture without being taught about any men and not studying with any men. Would she be getting the same "equal" education as a man who was only taught about male artists by male teachers with other men?

Is racial segregation any more constitutional than gender segregation?

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#MeToo
on June 26, 2018 at 08:46:04 am

[…] Moreno on the Original Meaning and Brown v. Board of … – 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. […]

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Image of Meaning Of Inc In Up Board Result | Indian Results
Meaning Of Inc In Up Board Result | Indian Results
on January 05, 2020 at 12:29:46 pm
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Marti Machon

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