An Unoriginal Argument

Published May 19, 2005

National Review Online

Yale law professor Jack Balkin offers a lengthy critique of my recent NRO essay in which I disputed the Left’s contention that the result in Brown v. Board of Education is incompatible with an originalist approach to constitutional interpretation. Balkin’s critique is yet another example of the insistence by non-originalists that they know what originalism is better than dedicated originalists (such as Michael McConnell and Robert Bork). His critique also repeatedly misstates the arguments he takes issue with.

Balkin begins by asserting that I try “to show that it is obvious” that the result in Brown is consistent with originalism. My aim was far more modest: to show that there are serious originalist arguments for the result in Brown. To show, in other words, that, contrary to the Left’s contention, it is far from obvious that the result in Brown is inconsistent with originalism.

Balkin then asserts that I try “to show that Brown is ‘really’ an originalist decision.” I nowhere claim that the actual Brown decision is originalist. Nor do I use “really” — the word he places in quotation marks — anywhere in my essay. (For a fuller account of my objections to Brown’s methodology, read this piece.)

What Balkin presents as my “first” argument is merely my refutation of Margaret Talbot’s claim that the same Congress that passed the Fourteenth Amendment segregated Washington schools. This opening part of my essay was showing the sloppiness of Talbot’s all-too-typical assertion that the result in Brown is incompatible with originalism. It was not making the affirmative case that Brown is compatible with originalism. Yet Balkin misses the point and leads anyone who reads only his essay to think that I was arguing that Congress’s appropriation of money to segregated schools was my first (and presumably best) argument in favor of the position that the result in Brown is compatible with originalism.

Balkin then addresses Michael McConnell’s argument from his 1995 Virginia Law Review article. As I accurately summarized this argument in my essay:

[A]s McConnell’s law-review article shows, in the years immediately following ratification of the Fourteenth Amendment, as Congress acted to enact legislation enforcing the requirements of the Fourteenth Amendment, a substantial majority of both houses of Congress repeatedly voted to abolish segregation in the public schools. Although filibuster tactics and other procedural obstacles prevented ultimate passage of legislation abolishing segregated schools, McConnell demonstrates that these votes provide powerful evidence that the original understanding of the Fourteenth Amendment was that segregated public schools were unconstitutional.

By contrast, Balkin presents an oddly weak account of McConnell’s argument. He asserts that McConnell’s “originalist argument for Brown is that Congress considered but ultimately rejected a ban on segregated public schooling in what ultimately became the Civil Rights Act of 1875,” and he states that “McConnell correctly points out that many of the people who voted for the Fourteenth Amendment also voted for the school desegregation language in the 1875 Act, hence he concludes that this is evidence of what they intended in 1868.” In referring to “many” people and in omitting mention of the actual and repeated supermajority support, Balkin fails to confront the essence of McConnell’s far more sophisticated and compelling argument, which McConnell summarizes in this way:

The 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.

Balkin also criticizes McConnell for giving more weight to the framers of the Fourteenth Amendment than to popular opinion (which Balkin equates with the “actual ratifiers”). But he fails to present, much less counter, McConnell’s powerful argument that the Fourteenth Amendment, like the Fifteenth, was the result of an extraordinary time “when a political minority, armed with the prestige of victory in the Civil War and with military control over the political apparatus of the rebel states, imposed constitutional change on the Nation as the price of reunion, with little regard for popular opinion.” As McConnell points out, enfranchisement of black voters was also deeply unpopular, so anyone who relies on popular opinion to dispute his reading of the Fourteenth Amendment should likewise contend that the Fifteenth Amendment doesn’t mean what it plainly says.

Balkin next claims that I read the 1880 Strauder case “through 21st century eyes” and fail to appreciate the historic distinction between civil equality and political equality. Yet he also claims that Strauder itself “blurs the civil/political distinction recognized by the framers” of the Fourteenth Amendment. So perhaps his real disagreement is with what Strauder says, not with my reading of Strauder.

Balkin likewise asserts that my treatment of Plessy overlooks “the tripartite distinction between civil, political and social equality.” But his effort to claim that Justice Harlan — the famous dissenter in Plessy — understood this distinction the same way that he does is unconvincing. Harlan’s position that the purpose of the Fourteenth Amendment was to “remove[] the race line from our governmental systems” (buttressed by his quotation of the same passage in Strauder that I quoted) is fully reconcilable with his supposition that the “white race” will retain social dominance. The principle that reconciles these propositions is that the Fourteenth Amendment addresses only state action, not private action.

Balkin also criticizes the alternative originalist argument by Judge Bork that I present — that is, Bork’s argument that by the time of Brown any assumption by the framers that segregated schools were compatible with the Fourteenth Amendment’s clear purpose of establishing racial equality under the law was no longer tenable. Balkin asserts that “Bork’s argument isn’t actually originalist” and instead is “a perfect example of how one does living constitutionalism,” for it “views changed circumstances and prudential considerations as having significant weight in interpreting the meaning of the document.” But “separate but equal” is nowhere stated in the Fourteenth Amendment. It was instead a judicially created doctrine that was thought to be consistent with the meaning of what the Amendment does say. What Balkin calls “changed circumstances” in Bork’s argument is the increasing evidence over time that governmentally segregated schools are incompatible with racial equality, and what he calls reliance upon “prudential considerations” is the priority Bork gives the Fourteenth Amendment’s original meaning of racial equality under the law over the mistaken assertion by a non-originalist Court in Plessy that separate could ever be equal. It is far from clear why originalism is supposed to be unable to accommodate these factors.

As I explained in my original essay, non-originalists have little interest in exploring whether the result in Brown can be reconciled with the original meaning of the Fourteenth Amendment. They prefer instead to use Brown as a weapon against originalism. As a result, they cannot be trusted to describe accurately the nature of an originalist analysis or evidence of original meaning.

Edward Whelan is president of the Ethics and Public Policy Center and directs EPPC’s program on The Constitution, the Courts, and the Culture.

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