Some originalist legal scholars argue that Brown v. Board of Education (1954) was not only correctly decided but can be justified on originalist grounds - that a faithful reading of the Fourteenth Amendment's original meaning, properly understood, required the Court to strike down state-mandated school segregation. This view pushes back against the common assumption that originalism and Brown are in tension, and against critics who use Brown as a reductio ad absurdum against the originalist method itself.

Proponents of this view argue that the relevant question is not what the 1868 Congress subjectively intended or expected segregation law to look like, but what the text of the Fourteenth Amendment meant to a competent reader of its time. The Equal Protection Clause states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Advocates contend that the plain public meaning of this language prohibits racially discriminatory classification by the state, full stop - and that state-mandated school segregation is an obvious instance of such a denial.¹⁾

A more historically granular argument, developed at length by Michael McConnell, holds that the 39th and 42nd Congresses - the drafting and ratifying bodies - did not clearly endorse school segregation as constitutionally permissible. Critics of originalism often point to the fact that the same Congress that proposed the Fourteenth Amendment also operated segregated schools in the District of Columbia. McConnell examines the legislative record and argues that this fact is more complicated than it appears: Congress debated and repeatedly considered integrating D.C. schools, and a significant bloc supported doing so on constitutional grounds.²⁾ The historical record, on this account, does not show a settled understanding that school segregation was compatible with the amendment.

Originalists in this camp draw a distinction between original expected applications - what the ratifiers thought the amendment would do in specific cases - and original public meaning - what the words of the amendment meant. Even if some ratifiers expected segregation to persist, that expectation does not override the semantic content of the Equal Protection Clause, which is framed in general and principled terms. Lawrence Solum and others argue that the amendment's text was deliberately written at a level of generality that applies to cases the ratifiers did not specifically contemplate.³⁾

Advocates further contend that Plessy v. Ferguson (1896), which Brown overruled, was itself a departure from the original meaning of the Fourteenth Amendment. Under this reading, the Court in Plessy did the interpretive damage; Brown was a correction back toward the text's original demands, not an abandonment of them. Steven Calabresi and others have elaborated this position, arguing that the “separate but equal” doctrine required substantial judicial construction that had no firm grounding in the amendment's text or ratification history.⁴⁾

Some originalists locate the theoretical foundation of the Fourteenth Amendment in an anti-caste or anti-subordination principle - the idea that the Reconstruction amendments were designed to dismantle the legal infrastructure of racial hierarchy in the United States. Andrew Kull, Michael Perry, and others argue that state-compelled racial segregation in public schools is a paradigm case of state-enforced caste, and that striking it down is not a departure from original meaning but its direct application.⁵⁾

For most of the twentieth century, critics of originalism - and many originalists themselves - treated Brown as a serious embarrassment for the method. Robert Bork, the most prominent originalist jurist of his generation, acknowledged openly that Brown posed difficulties for his approach and struggled to provide a fully satisfying originalist defense.⁶⁾ This concession became a standard rhetorical weapon: if originalism cannot justify Brown, the argument ran, then originalism leads to monstrous results and must be abandoned.

The serious academic effort to develop a positive originalist case for Brown accelerated in the 1990s and 2000s. McConnell's 1995 Virginia Law Review article is generally regarded as the most sustained and influential attempt, drawing extensively on the congressional record of the Reconstruction era. It prompted substantial responses and a continuing scholarly debate. Calabresi and Perl's 2014 piece extended and refined the argument using original public meaning rather than original intent methodology. These works shifted the scholarly terrain: it became harder to assert, with confidence, that originalism straightforwardly condemns Brown.

Michael W. McConnell - Formerly a judge on the Tenth Circuit and now a professor at Stanford Law School, McConnell is the primary architect of the historical argument that the Reconstruction Congress did not clearly endorse school segregation. His 1995 article remains the central text in this literature.

Steven G. Calabresi - Co-founder of the Federalist Society and a professor at Northwestern Pritzker School of Law, Calabresi has argued that original public meaning analysis supports Brown more cleanly than intent-based approaches, and that Plessy was the non-originalist deviation.

Lawrence Solum - A leading theorist of the “original public meaning” school of originalism, Solum's work on constitutional construction provides theoretical tools for explaining how a general constitutional text can apply to cases - including school segregation - that drafters did not specifically anticipate.

Andrew Kull - Author of The Color-Blind Constitution, Kull argues that the Reconstruction amendments embodied a color-blind or anti-caste principle that, properly applied, required abolishing state-compelled racial classifications.

Proponents of the originalist defense of Brown disagree on which version of originalism does the most work:

- Original intent vs. original public meaning: McConnell's argument is largely historical and intent-based, drawing on what the ratifying Congress understood. Calabresi and Solum favor original public meaning, arguing that the text's semantic content - not the drafters' specific expectations - is the operative legal norm. These methods sometimes converge on Brown but for different reasons.

- How much does the historical record actually show? Some scholars find McConnell's reading of the congressional record selective. Michael Klarman, while not an originalist, argued that the historical evidence is more ambiguous than McConnell allows and that the 1868 Congress probably did not expect or intend to prohibit school segregation.⁷⁾ Some originalists concede this point and fall back on public meaning arguments rather than intent arguments.

- Does Brown require originalism to “construct”? Solum and others in the construction school argue that even if the original meaning underdetermines the outcome in Brown, constitutional construction - guided by the amendment's purpose and principles - can reach the right result without abandoning the originalist framework. Critics within the originalist camp worry that this move opens the door to judicial discretion originalism was meant to constrain.

• Brown v. Board of Education - Main Topic
• Brown v. Board of Education - History - History
• Brown v. Board of Education - Judicial Reform Template Viewpoint - Judicial Reform Template Viewpoint
• Brown v. Board of Education - Neutral Principles Critique Viewpoint - Neutral Principles Critique Viewpoint
• Fourteenth Amendment Original Meaning - Debate - Fourteenth Amendment Original Meaning Debate
• Originalism - Originalism Viewpoint - Originalism Viewpoint
• Plessy v. Ferguson History - Plessy v. Ferguson History
• separate-but-equal-controversy - Separate but Equal Controversy

~~FOOTNOTES~~