Tuesday, December 05, 2006

What Would Bork Do?

Given that oral argument in the integration cases seems to have focused on Brown v. Board of Education, here’s an interesting question: how would a committed originalist decide these cases?

According to the originalist account, the 14th Amendment was not intended to prohibit racial segregation in public schools. Originalists point out that the Reconstruction Congress permitted segregation in the D.C. public schools, that the spectators in the gallery listening to Senate debate on the 14th Amendment were separated by race, and that the sponsors of the Civil Rights Act of 1866 – which served as the model for the 14th Amendment – disclaimed any intent to interfere with segregated education. Therefore, originalists argue, mandated racial segregation in the public schools is permissible under the 14th Amendment. If this is true, doesn’t it follow logically that mandated racial integration is also permissible under the 14th Amendment?

Many originalists have accepted Brown out of respect for stare decisis. But stare decisis only requires an acceptance of Brown itself; it does not require that Brown be extended. Striking down the school integration plans in Seattle and Louisville would seem to extend Brown beyond its holding, which was limited to school segregation. So shouldn’t a committed originalist vote to uphold the Seattle and Louisville plans? Maybe that explains why Justice Thomas didn’t ask any questions yesterday: as the Court’s most devoted originalist, he had already decided to uphold the plans!