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

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.

Reader Discussion

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on January 16, 2018 at 10:31:48 am

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Moreno on the Original Meaning and Brown v. Board of Education: Part II | Top 100 Blog Review
on January 16, 2018 at 10:39:12 am

The fallacy in Brown was the thought that by making education equal between children that would lead to social equality of Blacks and Whites. But social equality and intimacy between people is a matter beyond the reach of law.

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martin kessler
on January 16, 2018 at 16:44:11 pm

A conservative black father can send their kid to a black school where 5% of the kids' parents voted for Trump, or to a white school where 55% of the kids' parents voted for Trump.

Do you think the father considers these schools "separate but equal"?

Aren't racially-segregated schools just a way to create schools where conservatives are an irrelevant minority?

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Thomas' Soul
on January 16, 2018 at 21:12:50 pm

The question is, is an all-black school political gerrymandering? If the purpose of school is to expose students to other students with alternative political viewpoints, but that can't happen at an all-black school because they're all democrats, then is an all-black school by definition a failure of a school? That is, is it impossible for an all-black school to have a politically-diverse student body, and therefore impossible for it to accomplish a school's most basic and fundamental mission of exposing students to others of their age of different political orientations?

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Ben's Son's Car
on June 04, 2018 at 17:56:46 pm

Some thoughts:

1. You are correct that Congress's thoughts on segregated schools in the District of Columbia should not be relevant to Congress's thoughts on segregated schools in the states. After all, as you yourself said, the Equal Protection Clause only applies to the states.

Also, to my knowledge, the U.S. Congress in 1870 considered it acceptable to avoid giving foreign-born Chinese people the opportunity to become naturalized U.S. citizens. In contrast, it allowed foreign-born Whites and Blacks to become naturalized U.S. citizens. However, just because the U.S. Congress considered it acceptable to make racial distinctions itself does not necessarily mean that it considered it acceptable for U.S. states to make racial distinctions.

2. In regards to the 1875 Civil Rights Act, Yes, it certainly shows that most Republicans in Congress in 1874-1875 believed that school segregation was unconstitutional. That said, though, I would hesitate to use this as an argument in favor of the constitutionality of Brown.

After all, if (purely hypothetically) most of the supporters of the 26th Amendment in the U.S. Congress would have voted for a bill in the late 1970s (several years after the ratification of the 26th Amendment) which would have allowed 18-year-olds to run for state legislatures, state governorships, the U.S. Congress, and the U.S. Presidency and which would have used the 26th Amendment as the authority for the U.S. Congress to pass this bill, one would naturally have to ask: Why exactly didn't anyone in Congress say anything about this during the ratification of the 26th Amendment? Indeed, why wait until several years after the passage of this Amendment to say anything about this?

My point with the example above is that, if something was not disclosed to the public ahead of ratification, one should not assume that the people actually ratified it. Thus, if the U.S. Congress did not disclose that the 26th Amendment would have allowed 18-year-olds to run for all political offices, the public should not be assumed to have ratified this--even if Congress will say that the 26th Amendment indeed means this several years later. Likewise, the fact that no one--to my knowledge--in the U.S. Congress in 1866-1868 said that the 14th Amendment would make segregated schools unconstitutional means that we should be hesitant to assume--without additional evidence--that the public understood the 14th Amendment in such a way.

3. These prohibitions that you are talking about appear to primarily involve state law. Indeed, just because a state court or state legislatures considers state law to prohibit segregated schools does not necessarily mean taht it considers federal law to likewise prohibit segregated schools.

As for David Upham's work, it is certainly interesting, but it raises a similar issue--did the people (as in, the people who supported the 14th Amendment) take seriously the possibility that the 14th Amendment would invalidate anti-miscegenation laws? Indeed, it would be nice if more research was done in regards to this--both in regards to anti-miscegenation laws and in regards to segregated schools.

4. I haven't read John Harrison's work and thus can't comment on it. However, in regards to Jacob Howard, even if (I'm assuming this for the sake of argument) he believed back in 1868 that the Privileges or Immunities Clause extends to public education, the fact of the matter appears to be that he did not disclose this to the American people. Indeed, if the American people were not aware of what they were ratifying, then (from an originalist perspective) this ratification should be treated as being invalid.

Anyway, in the grand scheme of things, you make some good points and some not as good ones.

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