Table of Contents
Brown v. Board of Education - Originalism Debate
The central disputed question is whether Brown v. Board of Education, 347 U.S. 483 (1954), can be reconciled with originalist constitutional interpretation - and if not, what that failure implies for originalism as a jurisprudential method. The debate is contested because originalists themselves disagree about what the historical record shows, while critics of originalism treat the case as a decisive test that exposes the method's inadequacy. The stakes extend beyond historical reconstruction: the debate touches foundational questions about how constitutional meaning is fixed, how courts should handle precedent, and whether a jurisprudential method must be able to justify its most morally unambiguous outcomes.
Position: Brown Is Consistent with Originalism
Some originalists argue that Brown is fully compatible with - and even required by - a properly executed originalist analysis. The argument proceeds on several fronts.
First, advocates of this position distinguish between the original meaning of the Fourteenth Amendment's text and the specific expectations of its framers. The Amendment's Equal Protection Clause, ratified in 1868, commits the government to equal protection of the laws. The relevant question for original-meaning originalism is what that text meant to a competent reader at ratification - not whether the 39th Congress expected it to desegregate schools. Michael McConnell's influential 1995 article in the Virginia Law Review argued that the weight of contemporaneous legislative evidence supported the conclusion that the Fourteenth Amendment prohibited racially segregated public schools, at least in principle.1) On this reading, Brown does not require originalists to look away from history - it requires them to look more carefully at it.
Second, some originalists distinguish between the Amendment's ratifiers and the broader political community whose understanding fixes public meaning. Steven Calabresi and Michael Perl have argued that the original public meaning of “equal protection” was understood, even in 1868, to prohibit caste legislation - legally imposed hierarchy based on birth status - and that racially segregated public schools are a paradigm case of caste legislation.2)
Third, some proponents contend that even if the historical record is ambiguous, the appropriate method under originalism is to determine what the text's general principles, properly understood, require - not to defer to erroneous applications that contemporaries may have assumed. On this view, the 39th Congress was wrong about what its own Amendment permitted with respect to segregated schools, but the Amendment's meaning is not hostage to those errors.
Position: Brown Cannot Be Justified on Originalist Grounds
A substantial body of scholarship - advanced by both critics of originalism and some of its candid proponents - holds that Brown cannot be reconciled with the historical record and that originalists who claim otherwise are engaged in motivated reconstruction.
The core argument draws on the legislative history of the Fourteenth Amendment and Reconstruction-era practice. The same Congress that ratified the Fourteenth Amendment maintained racially segregated schools in the District of Columbia, which it governed directly. Contemporaneous state ratifiers overwhelmingly operated segregated schools and did not understand the Amendment to disturb this practice. Robert Bork, one of originalism's most prominent champions, acknowledged the difficulty plainly, suggesting that Brown was correctly decided but that its reconciliation with originalism was not straightforward.3) Raoul Berger, in his influential Government by Judiciary (1977), argued more directly that Brown was a departure from the Amendment's original meaning - and went further than most originalist critics by insisting that judicial fidelity to original meaning is non-negotiable even when the outcome is morally uncomfortable. On Berger's view, a court that substitutes its moral preferences for historical meaning, however appealing the result, has abandoned the rule of law for judicial will.4)
Critics of McConnell's reconstruction argue that his reading of Reconstruction-era legislative debates is selective. The Civil Rights Act of 1875 debates he relies upon occurred seven years after ratification and were highly contested; the bill's school desegregation provisions were ultimately stripped before passage. This suggests that Congress itself did not treat school desegregation as constitutionally compelled by the Amendment it had already ratified.
Some in this camp treat the tension not as a problem for Brown but as a fatal objection to originalism. If the method cannot generate Brown - which virtually all legal scholars across the political spectrum regard as correctly decided - then the method is defective. Justice Thurgood Marshall made a version of this argument before he joined the Court: a living constitutionalism that updates constitutional meaning to condemn practices later generations recognize as unjust is superior to an originalism that would have perpetuated segregation.5)
Full Viewpoint: Brown Cannot Be Justified on Originalist Grounds
Position: Brown Requires Originalists to Embrace Stare Decisis or Another Supplementary Doctrine
A third position holds that the debate between the first two camps is largely unresolvable given genuine historical ambiguity, and that the more productive originalist response is to acknowledge Brown as a case where precedent, moral evolution, or structural reasoning - rather than original meaning alone - does the necessary work.
Justice Antonin Scalia, the jurist most identified with modern originalism, did not claim that Brown was mandated by original meaning in a straightforward way. He suggested instead that Plessy v. Ferguson's “separate but equal” doctrine had been wrong from the start - an incorrect application of original meaning - and that Brown corrected it.6) But critics note this response relies on claiming that Plessy was an originalist error, which requires its own historical argument.
Justice Amy Coney Barrett and other so-called “new originalists” have argued that originalism does not purport to determine every constitutional question from first principles alone - it operates alongside doctrines of precedent, constitutional structure, and practical reasoning. On this view, even if the original meaning of the Fourteenth Amendment underdetermined the school segregation question, Brown is justified as a correction of a precedent (Plessy) that was itself inconsistent with the Amendment's core commitment to legal equality.
Some scholars in this camp, such as Jack Balkin, have proposed “living originalism” - the view that the Constitution's abstract principles (equality, liberty) have fixed original meaning, but their application to particular circumstances evolves as society's understanding of those principles develops.7) On Balkin's account, Brown is originalist precisely because it correctly applies the Fourteenth Amendment's abstract principle of equal citizenship, even though it departs from 1868 applications.
Points of Agreement
Across the debate, several premises are broadly shared:
- Plessy v. Ferguson (1896) was wrongly decided and Brown correctly overruled it.
- The Fourteenth Amendment was designed, at minimum, to prohibit explicitly race-based degradation of former enslaved people and their descendants.
- The historical record of the 39th Congress contains genuine ambiguity about the specific question of public school segregation.
- Virtually all participants in this debate, across methodological commitments, accept that the outcome of Brown - the constitutional prohibition of state-mandated racial segregation in public schools - is correct.
The disagreement concerns whether originalism as a method can generate that outcome from the historical evidence, and what the answer implies for the method's validity.
Related Pages
Footnotes
1. McConnell, Michael W. “Originalism and the Desegregation Decisions.” Virginia Law Review 81, no. 4 (1995): 947-1140.
2. Calabresi, Steven G., and Michael W. Perl. “Originalism and Brown v. Board of Education.” Michigan State Law Review 2014, no. 5 (2014): 429-558.
3. Bork, Robert H. The Tempting of America: The Political Seduction of the Law. New York: Free Press, 1990.
4. Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, MA: Harvard University Press, 1977.
5. Marshall, Thurgood. “Reflections on the Bicentennial of the United States Constitution.” Harvard Law Review 101, no. 1 (1987): 1-5.
6. Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton University Press, 1997.
7. Balkin, Jack M. Living Originalism. Cambridge, MA: Harvard University Press, 2011.
8. Brown v. Board of Education, 347 U.S. 483 (1954).
9. Plessy v. Ferguson, 163 U.S. 537 (1896).