Michael Rappaport and John McGinnis respond to Jessie Merriam: the legal turn does not imply a libertarian bias.
In yesterday’s post, I discussed Paul Moreno’s claim that originalism does not support the Brown decision. I argued that it is not true that all scholars agree with that conclusion. Here are some of the reasons why a scholar might believe that the original meaning supports Brown:
1. Moreno writes: “The same Congress (the 39th) that submitted the amendment to the states provided for segregated schools in the District of Columbia.” Michael McConnell questions this claim, arguing that only the local government actually adopted the segregated system. But let’s assume Moreno is correct. So what? The Fourteenth Amendment prohibitions on discrimination did not apply to the federal government. It merely applied to the states. Thus, even if Congress adopted the segregation, one cannot conclude that the Congress believed that the Fourteenth Amendment allowed discrimination as to public schools.
If Congress allowed discrimination in the D.C. schools, then why would they then ban it as to the states? There are many reasons for this, which I discuss in this paper. But the basic point is that Congress might have wanted a categorical rule against state discrimination, because they were worried about how the states (especially those that had enacted the black codes) would behave. By contrast, they might have trusted the federal government (which had acted to protect the former slaves) more and believed that a less categorical approach could be applied to the federal government. Thus, one cannot simply infer from what the D.C. schools were allowed to do, to a conclusion about what the state public schools could do. If you doubt this explanation, the burden is on you to explain why the Fourteenth Amendment was applied to the states, but not to the federal government.
2. Moreno argues: “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.” But this argument is problematic as well. As McConnell discusses, a very significant majority of the Congress favored applying the prohibition on race discrimination to public schools. But due to a procedural matter, the bill had to be brought up in such a way that required two thirds of the House to vote for it. While the bill had majority support, it did not have the requisite supermajority support. So, if anything, the Civil Rights Act discussion supports the constitutionality of Brown.
3. There is other evidence that supports the constitutionality of Brown. For example, there were states that acted to eliminate school racial segregation after the Civil War and that interpreted prohibitions on discrimination to forbid school racial segregation, as McConnell discusses in his article. There were other states that act differently, but the point is that the matter was not clear.
We have learned a great deal about views of the time about segregation. For example, while it was long thought that anti-miscegenation laws were constitutional under the original meaning of the Fourteenth Amendment, perhaps because they involved social matters, David Upham has shown again that the evidence is mixed, with Republicans at the time holding that such laws were unconstitutional.
4. The content of the Privileges and Immunities Clause, which is one of the potential sources of the nondiscrimination requirement, may very well have covered public education. John Harrison argues it covers most public education. And even Jacob Howard’s speech was not clear about the matter. Howard followed Corfield v. Coryell (1823), which gave a description and list of the privileges or immunities, but explicitly stated that the list was not exhaustive. Thus, public education might have been covered, even though it was not mentioned in Corfield or Howard’s speech.