In an exchange yesterday with Chairman Leahy, Elena Kagan stated that an originalist judicial philosophy cannot be reconciled with the U.S. Supreme Court’s decision in Brown v. Board of Education, which interpreted the Fourteenth Amendment’s equal protection clause.
This answer is surprising, given Kagan’s supposed preeminence as a legal thinker, because it is difficult to square with recent scholarship. Judge Michael McConnell, who was at the time a colleague of Kagan’s at the University of Chicago Law School, published an article titled Originalism and the Desegregation Decisions, which convincingly demonstrates that the framers of the Fourteenth Amendment did intend to end school segregation. In fact, during Kagan’s tenure as dean of Harvard Law School, HLS hosted Judge McConnell for a speech reviewing his work in this area.
As McConnell wrote in his seminal article, “[T]he belief that school segregation does in fact violate the Fourteenth Amendment was held during the years immediately following ratification by a substantial majority of political leaders who had supported the Amendment. In a large number of votes over a three and one half year period, between one-half and two-thirds of both houses of Congress voted in favor of school desegregation and against the principle of separate but equal. These deliberations, which were conducted in explicitly constitutional terms by Congresses charged with enforcing the new Amendment in the years immediately following its enactment, constitute the best available evidence of its meaning.”
McConnell has further developed this point in his chapter for the book What Brown v. Board of Education Should Have Said and in several further law review articles: The Originalist Case for Brown v. Board of Education, The Originalist Justification for Brown: A Reply to Professor Klarman, and Segregation and the Original Understanding—A Reply to Professor Maltz.
Other scholars, including Ed Whelan, have expanded on his work by arguing that the reasoning in Plessy stemmed from a “living constitution” view:
Even in its notorious 1896 ruling in Plessy v. Ferguson, the majority stated that the “object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law.” But then, in the sort of freewheeling non-originalist excursion that advocates of the phony “living Constitution” have come to celebrate, the majority looked to the mystery of the universe to assert that “in the nature of things” the Fourteenth Amendment “could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality.” By contrast, Justice Harlan’s celebrated dissent quoted Strauder and declared that the purpose of the Fourteenth Amendment was to “remove the race line from our governmental systems.”
Similarly, Professor John Harrison of the University of Virginia School of Law has shown in several articles that a texutalist/originalist understand of the Fourteenth Amendment is incompatible with the “separate but equal” regime upheld in Plessy and stuck down in Brown.
Elena Kagan probably had some studying to do last night, as she must during every break in her questioning. For example, after the lunch break yesterday she could talk intelligently about the term “legal progressive,” after claiming to have no idea what it meant during earlier questioning. Perhaps she studied Brown v. Board of Ed. late into Tuesday night (and Wednesday morning) and we will get a more scholarly response when the senators return to the issue tomorrow.