In Brown v. Board of Education, the Supreme Court ruled that segregated schools are a per se violation of the 14th amendment, but the same Congress that sent the 14th to the states funded funded segregated schools, and there was not even an argument about segregated schools for decades. Further, the state legislatures that passed the 14th also funded segregated schools.
Did the Supreme Court get it wrong when they said that segregated schools are a per se violation of the constitution regardless of circumstances? Did the framers intend or understand the 14th to make segregated schools unconstitutional?
I’m one who thinks the original intent of the constitution, the laws passed by the Congress, and any amendments passed, is of supreme importance. Namely because if the intent and the plain words of the people who passed it and the text of the law itself is not given extreme deference you’re essentially saying that unelected judges should have the power to create policy out of whole cloth.
I’m not a constitutional scholar, but to me when you can look at the constitution or an amendment and its original parameters are still valid today, you should look at it in that light. For example the amendment prohibiting quartering of troops is very clear, regardless of technological or societal changes I think it’s impossible that we’d have a situation develop in which society or technology was so fundamentally different that a court would be acting appropriately to rule that quartering of troops is valid. No, if we want to quarter troops we should have to pass a constitutional amendment.
We shouldn’t have to pass a constitutional amendment to extend freedom of the press to a newspaper’s website just because the internet didn’t exist in the 1790s. That’s an example of a court using its appropriate and constitutional interpretive power to delineate how something written long before modern technology should apply to said technology and the society in which said technology exists.
With Brown, the court that ruled in Brown argued that education had a dramatically different place in American society in the 1950s than it did back in the 1870s. I would agree. Education was not compulsory in most places when the 14th Amendment was passed, the value of education was not something most of society held dear. Further, it wasn’t considered a necessity for societal advancement since the overwhelming majority of society would have a few years of education at best.
I’d argue that with Brown you had a legitimate situation where society had changed so much that continued segregation in schools legitimately could be argued to be denying the privileges of citizenship to a specific group and that you could likewise argue such segregated schools did not have the same effect 85 years prior.
Sorry MH, the original intent was to write the Constitution and its amendments as they appeared then, and now. Anything else is irrelevant or they would have written it down.
The Equal Protection Clause from the 14th is specific. The fact that the SCOTUS and the congress were wrong in the 1870s has no bearing on this. The Constitution and its intent have not changed on that subject.
The original intent of the 14th is to provide for the equal protection of the laws and equal privileges of citizenship for all U.S. citizens. That by its nature would suggest that as those laws and privileges change through the ages, the parameters of what is protected by the 14th would chance. The text of the 14th is not specific to what privileges are protected or what laws are to be applied equally, for that reason we can safely say the original intent of the 14th was dynamic and not static.
Education isn’t a privilege of citizenship (since many throughout the United States did not enjoy said privilege.)
Equal protection of the laws and equal enjoyment of citizenship privileges is still possible with statutory segregation (separate but equal.)
Historical developments in education rightly lead the court in Brown to conclude that 20th century education cannot be separate and equal, whereas the realities of 19th century education made this much less of a concern. Thus, no conflict with the original intent, since education had fundamentally changed the original parameters no longer existed so you couldn’t rule based on that. Education was it was in 1870 no longer existed in 1954.
The popular story of Brown is that the Court responded to evidence that the Law of Unintended Consequences had demonstrated that Plessy v Ferguson was incorrectly decided. In other words, the court did not rule that “Separate but Equal” was wrong on its own terms, but that history had demonstrated that “Separate but Equal” does not actually provide equality under the Law.
How closely the popular story approaches the reality of the Constitutional decision, I am not sure. There are aspects of the evidence presented during the case that have since been shown to have been misunderstood or misapplied at the time. (In retrospect, whatever failings appeared in the case brought by the plaintiffs, the reality of the situation, (not the Law), very closely matches the popular story: it seems unlikely that “Separate but Equal” could ever be capable of being carried out in a way that actually maintained equality. However, I am not sure how the historical reality would play out against an originalist reading of Brown. Of course, I also doubt that Plessy would stand up very well against an originalist interpretation. For some odd reason, the Court tends to rule in accordance with the culture of its times, regardless of the opinions of legal scholars.)
Martin, I don’t see a difference from the originalism that you advocating and the “living-constitution” view that originalists object to. Your “originalism” does not seem like originalism to me.
Martin, how does your above reasoning differing from the “living-constitution” reasoning that originalists decry? Specifically, the evolving view of cruel and unusual that has been used to find certain applications of death penalty unconstitutional. The originalist’s response in that case is that since the death penalty was not understood to be cruel and unusual at the time the 8th amendment was passed, it is not unconstitutional. How is that different from segregated schools?
Can a changing understanding of equal protection and equal privileges also include an expansion to cover abortion? Or is there a principled difference between society’s changing understanding of education and its changing understanding of reproductive freedom? (Note, there could be a difference in the amount society has changed, but that would only speak as to whether the a new constitutional right to abortion should be recognized at this time, not whether it could be recognized.)
It might be helpful to define “originalism,” or point to a definition, before proceeding much further. Martin referred to “original intent,” but other “originalists” seem to have a problem with that concept.
Harlan’s dissent in Plessy argues against separate-but-equal on originalist grounds. As to Brown, Michael McConnell has argued that its result is justified under an originalist approach, but I’m having trouble finding his article anywhere accessible.
I personally can’t see how you can reconcile Brown with an originalist reading of the 14th amendment, but that’s just me. But I also don’t think that Harlan’s dissent in Plessy relies on originalist grounds. It relies on textualist grounds. His dissent doesn’t focus on what the writers of the 13th and 14th amendment meant. It focuses on what the 13th and 14th amendment say.
How can you understand what they meant without looking at what they had to say? Originalism does not require time traveling mind readers, it requires the judge to look at what was said and what it meant at the time. The 14th amendment was written at a time when hundreds of thousands of americans had died in a war to emancipate black americans from slavery. Its purpose was to outlaw states discriminating against black americans. The law segregating railway cars was passed for the purpose of discriminating against black americans. Thus the law cleary violates the language and intent of the 14th amendment.
Originalism is claiming that dead people meant to write down something other than what they did, and you know what they intended to write down, and that should be substituted for what they did write down. Every form of it boils down to that. It’s a crock.
First of all, Plessy was about railway cars and not education.
If two subway cars are exactly alike but one does not allow Blacks, is that discrimination?According to Plessy, no.
80 years later, Brown rolls around. To add to the OP, a key componant of Brown is that should a state provide a free public education, then it is a property right and cannot be denied without due process. As for “separate but equal”, the plan was to chip away at it slowly. A series of cases like Sweatt v. Painter demonstrated that at least in education, separate was not in fact equal.
Because of the differences in the situation, I think that both Plessy and Brown can be supported with originalism.
Because Harlan goes further than claiming that the segregated railways cars are unconstitutional. He
and that the 13th Amendment “decreed universal civil freedom in this country.”
Which you would think would also ban such distinction in regards to education. Even though even Harlan backs off of that four years later in Cummings v Richmond County BOE, which states that the 14th amendment doesn’t prevent states from treating white education and negro education differently.
Again, it might help to have some definition–puddleglum (pro-textualism) on the one hand, Martin (pro-intentionalism) and TriPolar (anti-intentionalism) on the other, seem to be using different working terms. But, you know, it’s hard to tell.
I don’t think you can either. The 14th amendment specifically allowed states to totally disenfranchise blacks and women. Surely separate schools would have been permissible. In fact, that same Congress provided for segregated schools for Washington D.C.