Bench Memos

A Postscript on Brown and Originalism

In my NRO essay on Brown v. Board of Education and originalism, I outlined originalist arguments by Michael McConnell and Robert Bork in support of the result in Brown. I also observed that the Left has no real interest in exploring the merits of these originalist arguments because its overriding interest is in using Brown’s supposed incompatibility with originalism to discredit originalism. Yale law professor Jack Balkin continues to provide ample evidence in support of my observation.

I will not drag the hapless reader through the back-and-forth of Balkin’s critique of my essay, my response to his critique, and his comments on my response. (His comments are appended to his critique as an “update”.) I will instead focus on the big picture.

My essay did not purport to present my own scholarship but instead sought to draw attention to two serious originalist arguments that others have made. The primary originalist argument that my essay presented is that the original understanding of the Fourteenth Amendment was that segregated schools were unconstitutional. That argument was made most forcefully ten years ago by Michael McConnell and is consistent with the 1880 Strauder decision and Justice Harlan’s famous dissent in the 1896 Plessy ruling.

As I pointed out in my response, Balkin’s critique provided an inaccurate and anemic summary of McConnell’s argument and presented a supposedly unanswerable objection that McConnell had in fact refuted ten years ago. In his update, Balkin offers not a word of explanation or defense for his mistreatment of McConnell’s argument. Instead, his core argument is his irrelevant charge that I do not adequately understand the history of the post-Civil War amendments.

I will readily concede that Balkin knows far more about the history of these amendments than I do. But despite his effort to pitch the contest as being between himself and me, the relevant question is whether he understands that history–and the proper treatment of that history in originalist methodology–better than McConnell. Perhaps he does. But the fact that he has yet to answer McConnell provides little reason for confidence in his judgment.

The second originalist argument that my essay presented is Robert Bork’s argument that by the time of Brown any assumption by the framers that segregated schools were compatible with the Fourteenth Amendment’s original meaning of establishing racial equality under the law was no longer tenable. Balkin’s critique contended that Bork’s argument “isn’t actually originalist,” and my response explained why Balkin was wrong. Again, all that Balkin’s update provides is a misdirected attack on my knowledge of the history of the post-Civil War amendments.

Balkin’s misstatements continue in his update. He asserts that I base my argument on the “plain language” of the Fourteenth Amendment and purports to quote me twice as to what that amendment “plainly” says. But the originalist arguments that I present are not “plain meaning” arguments, and the only time I use “plain” or “plainly” in either of the two essays is in presenting McConnell’s point that Balkin’s reliance on racism in public opinion at the time of ratification should also compel him to conclude “that the Fifteenth Amendment doesn’t mean what it plainly says.”

I have no doubt that Jack Balkin is very smart and learned. Given his intelligence and knowledge, his failure to address squarely the originalist analyses of McConnell and Bork lends additional support to my thesis that non-originalists on the Left are not really interested in exploring whether the result in Brown can be reconciled with the original meaning of the Fourteenth Amendment but instead prefer to use Brown as a weapon against originalism.

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