by Michael Dorf
I taught Brown v. Board of Education to my 1L Con Law class yesterday and part of our discussion was jurisprudential: What methodology does the Court use? What weight, if any, does the Court give to the original understanding of the Fourteenth Amendment? What was the original understanding? Etc. Here I want to use that opening to register a criticism of one particular sort of argument that self-styled originalists sometimes make about Brown and about the relation between stare decisis and originalism more generally.
A relatively small number of constitutional decisions are so central to our constitutional culture that any interpretive methodology that fails to produce them is, ipso facto, improper. We can disagree over how many such decisions there are but if there is anything on the list, it's Brown. As Steve Sachs argues in an insightful paper defending a (very modest) version of originalism, Brown might be said to be right simply “because Brown." Yet, Brown is at least a prima facie problem for originalists because the framers and ratifiers of the Fourteenth Amendment appeared to accept de jure segregation. Originalists have developed a variety of strategies to resist the conclusion that Brown discredits originalism.
The boldest effort is Michael McConnell's argument (in a 1995 Virginia Law Review article that does not appear to be linkable on any free site) that in fact the Reconstruction Congress did intend to abolish de jure segregation. Steven Calabresi and Michael Peri make a similar argument, relying on a view about the Privileges or Immunities Clause. If these sorts of arguments succeed, then there is no conflict. To my knowledge, most historians believe these arguments fail, at least if meant to tell us anything about the concrete intentions and expectations of the framers and ratifiers.
A more common move among originalists distinguishes between concrete intentions and expectations, on the one hand, and original public meaning, on the other. Contemporary "semantic originalists" read the Fourteenth Amendment's language at a hig level of generality and then say either that the semantic meaning itself entails Brown or that the semantic meaning is consistent with Brown, which could be justified as a matter of judicial construction (a kind of filling in or fleshing out) rather than at the level of interpretation (which is a matter of meaning). As I and others have noted before (e.g., here), the move from concrete intentions and expectations to semantic meaning sacrifices most of what made originalism distinctive. Ronald Dworkin was a semantic meaning originalist by current standards. Jack Balkin argues that semantic originalism is consistent with living Constitutionalism. I don't especially like the idea of calling this broad approach to interpretation and construction any kind of "originalism" mostly because I don't like the opportunity for a bait-and-switch. The theory justifies originalism-in-name-only but then the judges in fact deploy old-school-concrete-intentions-and-expectations to delegitmate living Constitutionalism.
Originalists who do not think that Brown or other sacrosanct precedents can be justified using originalism, however defined, sometimes rely on stare decisis. There is a robust debate about how and whether this works. Justice Scalia has said it doesn't have to be justified, because stare decisis is an add-on to any first-order interpretive program. Henry Monaghan has asked whether a stare decisis that is justified on pragmatic grounds opens the door to other pragmatic grounds for nonoriginalist decision making. John McGinnis and Michael Rappaport have argued that stare decisis can be justified to sustain nonoriginalist precedents insofar as stare decisis comports with "original methods originalism," i.e., so long as the original understanding allowed for stare decisis.
I'm not now going to defend a position on any of these approaches. Instead, I want to offer a critique of one particular argument. So, let's assume the following:
(1) Brown and/or some other sacrosanct precedents cannot be justified by first-order originalist methods, whatever the particular originalist thinks those methods are.
(2) Brown and/or the other precedents can, however, be preserved via stare decisis, which is permissible on one or more of the grounds discussed above.
Does it therefore follow that the originalist has answered the challenge posed by Brown and/or the other sacrosanct precedents? Originalists who labor to reconcile stare decisis with originalism appear to assume that the answer is yes. I think they're wrong. In particular, I think they misconceive the challenge that Brown and/or the other sacrosanct precedents pose.
The problem for originalism is not that adoption of originalism would result in the reinstatement of Jim Crow. The very sacrosanctity of Brown reflects the fact that--despite ongoing racial inequality across multiple dimensions--no serious figure in American public life advocates a return to Jim Crow.
The problem that Brown and/or other sacrosanct precedents pose is not one of preserving those precedents but of failing a test. The process of deciding upon the "correct" interpretive methodology proceeds, like many intellectual tasks, via a reasoning process that goes back and forth between general principles and concrete applications until one reaches reflective equilibrium. But if Brown and/or some other precedents are right "because Brown" and/or "because X, Y, and/or Z," that means that any interpretive approach that is acceptable must actually produce Brown and/or the other precedents. Preserving sacrosanct precedents is not enough. Indeed, it's not the point of the exercise at all.
Consider an analogy. Suppose I'm trying to decide which of two builders to hire to build a house: Stubbs or O'Reilly. Each of them shows me several houses he has previously built. The Stubbs houses are high quality but the O'Reilly houses are falling down. O'Reilly nonetheless wants me to hire him. I'm skeptical because I see what lousy work he has done in the past. He tells me not to worry because he himself lives in a high-quality house that Stubbs built. O'Reilly is proud of the fact that he hasn't destroyed the excellent house Stubbs built. But I'd be a fool to hire O'Reilly because the capacity not to destroy an excellent house is not a predictor of the ability to build an excellent house.
Originalism supplemented by stare decisis is like O'Reilly.