Those who want space to pursue the common good in many of the ways that Vermeule promotes should be attracted to originalism.
In my prior post, I noted that the unconstitutionality of Jim Crow is often mistakenly considered to be identical with the constitutionality of Brown. In this post, I want to note some new evidence that provides additional support for the constitutionality of Brown under the original meaning.
As I noted, there are two issues concerning Brown that raise questions under the original meaning. First, is separate but equal constitutional or does the Constitution forbid such laws as racial discriminations? Second, is the right to attend a public school a civil right or otherwise within the scope of the 14th Amendment equality requirement?
The leading article on the constitutionality of Brown under the original meaning is Mike McConnell’s paper, which presented a range of evidence to support both points. Also significant is John Harrison’s paper, which argues as well for both points in a wider treatment of the 14th Amendment. But there have been new arguments that have been made in the last several years that provide additional support.
First, my own paper, published last year on Originalism and the Colorblind Constitution, helps to support the argument that separate but equal was not considered constitutional as to public education. One of the most common arguments for separate but equal comes from the segregated Washington D.C. public school system that was operated under Congress’s supervision. If Congress segregated (or allowed the segregation of) the DC schools, then how could the 14th Amendment have forbidden it? In the paper, I argue that legislation passed by the Congress should not be read as informing the meaning of the equality requirement of the 14th Amendment. The 14th Amendment equality requirement was not applied to the federal government and therefore one cannot assume that the Congress was reflecting its views of the Amendment when it passed legislation. Thus, if Congress’s actions with respect to the D.C. public schools did not involve an interpretation of the 14th Amendment, this piece of evidence becomes much less important.
Second, David Upham’s paper given at the Originalism Works in Progress Conference, entitled Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause, provides additional support that separate but equal was not considered constitutional. David presents a significant amount of evidence that laws forbidding interracial marriage were deemed unconstitutional after the passage of the 14th Amendment, especially by Republicans. While David’s interpretation appears to involve substantive rights under the Privileges or Immunities Clause, this still cuts against the idea that people at the time believed that separate but equal respected everyone’s rights equally.
Third, Steven Calabresi with coauthors has published a couple of different papers that provide additional support for the claim that public education was a civil right or otherwise within the scope of the 14th Amendment equality requirement. Calabresi and his co-authors conclude that in 1868, “at least thirty of the thirty-seven states had provisions in their respective state constitutions that seemed clearly to recognize the right to a public school education, and an additional three states arguably had a right to a public school education in their respective state constitutions.” Thus 81 percent of the states clearly had a constitutional right to public education and perhaps as many as 89 percent. While Calabresi and his co-authors discuss various complications, this is both surprising and surprisingly strong evidence for treating public education as a fundamental right.
Overall, then, this new evidence places the conformity of Brown with the original meaning on an even stronger footing.