Today in the originalism class that I am teaching (with Eric Posner) we talked about the segregation cases, Plessy v. Ferguson and Brown v. Board of Education. The topic of “Originalism and Brown” naturally lends itself to two questions — the first is whether Brown is correct as a matter of original meaning, and the second is why the first question is so important.
On the first question, I do not pretend to have done enough research to know the answer. Originalist defenders of Brown typically either argue that the Clause should be read at a high level of generality that allows us to ignore the (supposed) support for segregation at the time of the Fourteenth Amendment, or else rely on Michael McConnell’s extensive analysis of post-ratification opposition to segregation in Congress (summarized here and available here to those who can access Hein). I find both arguments plausible, but I don’t think either of them has yet proven decisive.
One reason is that there is still a lot of work to be done — originalist scholars are still disentangling how much of the original meaning of the Privileges and Immunities Clause has been misallocated to the Due Process and Equal Protection Clauses, and important, novel work on the meaning of the Fourteenth Amendment comes out every year. In any event, I don’t think anybody has shown that Brown is wrong as a matter of original meaning.
I find the second question more interesting. In the abstract, a legal interpretive theory ought to be able to say “theories generate results; results don’t generate theories.” In other words, it is a mistake to judge an interpretive theory simply by the moral goodness of the results it produces: If one had a theory of moral goodness sufficient to judge all of the results of an interpretive theory, one may as well just use it directly. Law’s promise is the ability to transcend moral disagreement.
And yet in practice almost every constitutional theorist feels the need to say that Brown is right. The two exceptions I can think of are Adrian Vermeule and Earl Maltz, though my very very small sample size suggests that the next generation of law students may not view Brown as similarly canonical. ( — as with precedent, by the way, this is not a problem unique to originalism.)
In any event, how much of a challenge to originalism is this? Suppose that Brown cannot really be justified by originalism after all, but originalists are subconsicously pressured to produce Brown. If they succumb to the pressure, that does not seem like a big deal. Judges are human, and if they are going to deviate from their preferred interpretive method, erring in favor of a desirable and popular precedent is better than the opposite.