Originalism and the Courts

So, Brown v. Board of Education is often held up as the great modern example of a decision that is both, has to be right but also contradicts originalist premises, and that is certainly the way the opinion reads, the court expressly declines to quote, "set the clock back," to the time of the adoption of the 14th Amendment. Now I happen to have done a fair amount of historical research about segregation at the time, the question of segregation at the time of the 14th Amendment. And I believe that the Supreme Court, had it known the history of the period, would have been able to reach the decision in Brown on the basis of the original public meaning of the 14th Amendment. After the amendment was adopted in 1868, and beginning in 1870 there were a whole series of enforcement acts. The 14th Amendment gives Congress the power to enforce the amendment. And there were a whole series of enforcement acts. There's something called the Enforcement Act. There was the Ku Klux Klan Act. There was the Civil Rights Act of 1870. And then they began in the early 1870s to work on what eventually would be passed as the Civil Rights Act of 1875, which prohibited discrimination in a variety of public accommodations, and also in public schools. It was debated for four years in Congress, there were numerous votes, and we came extremely close to having a law passed which would have effectively been Brown versus Board of Education back in the 1870s. It passed both houses of Congress by large majorities at different times, and for a variety of procedural reasons, including the existence of the filibuster in the House of Representatives, it never actually got enacted. When the Democrats had a huge landslide victory in the off-term elections in 1874, the Republican supporters of the bill gave in and realized they couldn't pass desegregation of schools. But even then, they explicitly voted against a “separate but equal” provision, saying that “separate but equal” was contrary to the fundamental meaning of the Amendment. And so they preferred to have schools left out of the bill, rather than to embrace “separate but equal.” I think that is extremely powerful evidence that people just after the adoption of the 14th Amendment, charged with enforcing the 14th Amendment believed in large majorities that segregation of public education was unconstitutional. And I wish that the court in Brown had known more about it.