By Eric Segall
In an important new article in the American Political Science Review (behind a pay wall), Calvin TerBeek has uncovered substantial data to suggest that what we think of as modern originalism was motivated first and foremost by political and legal opposition to Brown v. Board of Education. Today's judges who self-identify as originalists will likely ignore this scholarship but originalist academics should not. They need to explain how a contemporary movement born in the racism of the 1950's and 1960's has evolved beyond that racism. At the end of this post, I'll offer a few tentative thoughts on race and originalism today.
Most people who have catalogued originalism in articles and books tell a familiar story. Although the original intent or meaning of the Constitution has always been one factor in constitutional interpretation, or more precisely a factor in how judges explain their decisions, the oft-told story is that Judge Bork (as a Yale law professor) and Raoul Berger brought the movement to life in the 1970's as a response to the perceived excesses of the Warren Court. Their work was touted by Ronald Reagan's Attorney General Ed Meese and Justices William Rehnquist and Antonin Scalia but originalism still skirted the edges of bench, bar, and legal academia. The Federalist Society was created around the same time by these men along with Steve Calabresi to make originalism mainstream, but the going was slow in the 1980's.
Once conservatives seized power of the federal judiciary in the 1990's after 12 years of Reagan/Bush judges and justices, a new form of originalism emerged, led by Justice Scalia's pivot from original intent to original meaning and the work of academics such as Keith Whittington, Larry Solum, and Randy Barnett. These so-called New Originalists dropped the deference aspects of originalism touted by Bork and Berger and eventually moved away from a purely historical originalism to a more linguistic-focused originalism. Then came numerous other originalist theories, such as original-methods originalism and originalism-is-our law originalism. Today, most originalists admit that originalism is actually a family of different theories united by the ideas that the meaning of the Constitution was fixed at ratification and that meaning, where it exists, binds judges. This standard narrative is in my book Originalism as Faith as well as other historical summaries of originalism.
Now, Calvin TerBeek has entered the fray and rattled the premises of this oft-told story. His article suggests that most of the legal elites who people claim brought the originalism movement to the American people as a separate theory of constitutional interpretation were late comers. That, in fact, the movement was not created by Bork and Berger but rather by people like former journalists William F. Buckley and James Kilpatick as well as conservative politicians like segregationist Senators James Eastland and Richard Russell. This is not to say that the role of history in constitutional interpretation only started in 1954. It is to say that originalism as a social and political movement started after Brown.
Just days after the Supreme Court decided Brown, Russell took to the Senate floor to criticize the decision in the harshest of terms. Russell said the decision "substituted psychology for law." A like-minded conservative district court judge in Texas reacted to Brown by saying that "if the colored child" suffers harm from segregated schools, then "the white child by the same psychological processes of [Brown's] reasoning may be found subject to an inferiority complex by reason of being required to sit in classes with the colored child."
TerBeek's article explains how Kilpatrick, who had the ears of numerous racist Senators as well as George Wallace and the Republican National Committee, led a campaign arguing that Brown was sociology not constitutional interpretation. Shortly after the opinion came down, he wrote to Senator Harry Byrd and said, "I would toss an old battle-cry back at the NAACP. Hell, we have only begun to fight."
Soon thereafter, Buckley, Kikpatrick, and other conservative commentators launched a full-scale attack on Brown. One method was to argue that the Fourteenth Amendment was never validly adopted. In 1958, based on the work of Kilpatrick and others, the National Review ran an editorial saying that when "certain ancient spiritual values are recovered, the [14th & 16th] Amendments that have perverted the Constitution will in the nature of things be reamended." Other noted conservatives at the time, like Dan Smoot, a former FBI agent, argued that the Reconstruction Amendments were enacted by northern soldiers using "army bayonets" to escort "illiterate negroes and white carpetbaggers to the polls," and the only option to undo Brown, "was to eliminate the 14th Amendment and nullify all court decisions and laws based on it."
These direct attacks on the validity of the Fourteenth Amendment were, however, according to TerBeek, "too transparent" and therefore the conservative opposition to Brown moved to arguing that the intent of the Amendment demonstrated that Brown was incorrectly decided. Barry Goldwater's famous conservative book The Conscience of the Conservative, which Pat Buchannan called "our new testament," argued that recovering the Constitution's intent was a judge's sole job, and that "the [14th] amendment was not intended to, and therefore did not, authorize any federal intervention in the field of education." The book was published in 1963, years before Bork's famous Indiana Law Journal article which many scholars, including myself, mistakenly marked as the beginning of the modern originalism movement.
TerBeek's article proceeds to document the efforts of numerous politicians and pundits in the 1960's to argue that the intent of the 14th Amendment was to allow segregated schools and that the Brown Court acted unlawfully by rejecting that original understanding. For example, in 1962 Kilpatrick wrote a book called "The Southern Case for School Segregation," in which he argued against Brown on the basis that there is only one legitimate method of constitutional interpretation and that is to "give effect to the intent of the framers of the organic law and of the people adopting it." This was a decade before Raoul Berger wrote his influential book "Government by the Judiciary," in which he argued Brown was decided incorrectly based on the original intent of the 14th Amendment.
There is a lot of other fascinating history in TerBeek's article that goes beyond the conservative criticisms of Brown based on originalism. An influential law professor named Alfred Avins argued in favor of literacy tests in 1966 in Katzenbach v. Morgan. After the argument, he wrote to William F. Buckley that the "beginning, middle, and end of all constitutional inquiry is the original intent of the framers." Again, this was well before Bork and Berger published their works on originalism. Avins also wrote to Buckley after the latter published an article in opposition to civil rights legislation that, "from this Article, I gather you have an interest in race relations."
TerBeek's main thesis in his article, which is part of a larger book project, is that the true beginning of today's originalism stemmed from conservative opposition to Brown, to civil rights laws, and to other progressive decisions such as Reynolds v. Sims' one person-one vote rule, which itself was a response to racist districting to keep Blacks from having any real voting power. This re-telling of the origins of originalism is, of course, important as an historical matter but why, if at all, is that history important today?
One of the most powerful arguments against originalism today is that it privileges the values and opinions of slaveholders and segregationists over more contemporary understandings. Additionally, today's originalists generally believe that affirmative action is unconstitutional, that voting suppression tactics such as Voter ID laws are constitutional, that Congress' power to enforce the 14th and 15th Amendments should be quite narrow, and that after centuries of slavery and segregation we should just start over with a non-textual, rigid, color-blindness rule. As I've written before here, "one would think anyone wanting judges to make decisions today based on a world where only white males had equal rights under the law would develop a sophisticated theory why that is something judges ought to do. Very few originalists deal with this problem in any manner, much less a persuasive one."
Today's originalists are not racists like Senators Russell and Byrd and journalists Buckley and Kilpatrick. No one should read me as suggesting that. But it is also true that most of today's originalists are much less receptive to judicial interference with institutional racism than non-originalists. Given how the movement started, given that originalists are overwhelmingly white, and given that, as TerBeek shows, originalism has deep racist roots, this newfound history must be a part of the originalism story and maybe, just maybe, today's originalists should be a little more sensitive to, and reflect more deeply about, the connections between originalism and race.