Bench Memos

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Re: Brown and Originalism


Asking whether originalism can give you the result of Brown v. Board of Education is a bit of a trick question–and the trick is Brown itself. Brown launched constitutional law on a trajectory aimed at the conclusion that the Court is supreme expositor of the Constitution, that what the Court says and what the Constitution means are pretty much the same thing. Cooper v. Aaron, the 1958 decision smacking down Governor Faubus’s resistance to Brown, was central to this development. Asking about Brown and originalism now–that is, without questioning this type of judicial supremacy–is to ask whether the judiciary was authorized by the Fourteenth Amendment to strike down segregated public schools. The answer to this question is: hard to say; the historical evidence does not permita confident answer either way. But those who wrote and ratified the Fourteenth Amendment were not judicial supremacists of the Cooper variety. They surely meant for Congress–and not the Court–to be the main guarantor of the rights against hostile state action vouchsafed in section one of the Amendment. That is why the Amendment includes an express grant of enforcement authority to Congress (in section five), and leaves the judicial enforcement role to implication. The question which originalists should want to answer about Brown, then, is this: did the ratifiers of the Fourteenth Amendment understand that the enforcement power which they gave to Congress included the power to order states to desegregate public schools? The answer to this question is “yes”, as the debates in Congress over the civil-rights laws during Reconstruction (among other things) make abundantly clear.


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