I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by "liberal" colleagues, [but] I think Plessy v. Ferguson was right and should be re-affirmed. If the Fourteenth Amendment did not enact Spencer's Social Statics, it just as surely did not enact Myrdahl's [sic] American Dilemma. Id. at 289-90.
The memorandum surfaced during the hearings on Rehnquist's 1971 nomination to the Supreme Court. Rehnquist, faced with the assertion that he agreed with Plessy, testified that Justice Jackson requested the memorandum, and that the memorandum represented Jackson's views on the segregation cases. Kluger, supra note 18, at 605. For a discussion doubting Rehnquist's account of the nature of the memorandum, see id. at 606-09.
[FN22]. See Michael J. Klarman, Brown v. Board of Education: Facts and Political Correctness, 80 Va. L. Rev. 185 (1994) (footnote omitted) (" Brown v. Board of Education is today so politically sacrosanct that one cannot dispassionately discuss the decision's soundness as a matter of constitutional theory."). Professor Klarman also laments that " Brown was not an unambiguously correct decision either for the justices or the American public in 1954, and to formulate constitutional theories on the basis of ahistorical judgments is at the very least unconstructive, and possibly quite insidious." Id. (footnote omitted); see also Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 Va. L. Rev. 7 (1994).
[FN23]. "No constitutional theory that implies that Brown v. Board of Education -- which held that public school segregation violates the equal protection clause of the fourteenth amendment -- was decided incorrectly will receive a fair hearing nowadays, though on a consistent application of originalism it was decided incorrectly." Richard A. Posner, Bork and Beethoven, 42 Stan. L. Rev. 1365, 1374 (1990) (footnote omitted).
[FN24]. See infra part II.
[FN25]. I believe that Brown is one of the Court's greatest decisions and is an integral part of this nation's history and effort to address the question and problem of discrimination through the law. I do not question Brown; rather, I only wish to explore the specific matter of Robert Bork's notion of originalism as applied to Brown and, in doing so, hope to illustrate some of the difficulties of the application of originalism in constitutional interpretation which have been recognized by both "liberals" and "conservatives." See Laurence H. Tribe & Michael G. Dorf, On Reading the Constitution 13-14 (1991) (arguing that the belief that we must look behind the specific views of the framers to apply the Constitution is not necessarily a "liberal" position, and that not even the most "conservative" judges today believe in a jurisprudence of original intent that looks only to the framers' unenacted views about particular institutions or practices); William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 694 (1976) (where the framers used general language, they "have given latitude to those who later interpret the instrument to make that language applicable to cases that the framers might not have foreseen").
[FN26]. See H. Jefferson Powell, Rules for Originalists, 73 Va. L. Rev. 659 (1987). Powell states:
Those who advocate giving normative force to the "original intent" of the Constitution's framers and adopters go by several names: intentionalists, originalists, interpretivists. I have chosen to use "originalist" in this essay because it suggests adherence to the Constitution's original meaning(s) without locating that (those) meaning(s) in the founders' actual intentions. (The latter is a deeply problematic enterprise historically ....) "Intentionalist" would be an appropriate label for Chief Justice Rehnquist or Attorney General Meese. The attempt by intentionalists or originalists to arrogate the term "interpretivist" is sheer propaganda: it is difficult to imagine any judge or scholar in the United States who does not claim that his or her constitutional opinions are in some sense interpretations of the Constitution. The current debate is over how, not whether, to interpret it. Id. at 659 n.1; see also Powell, supra, note 4; Jack N. Rakove, Comment on Ordered Liberty: The Original Intent of the Constitution, 47 Md. L. Rev. 226 (1987).
Another scholar describes the jurisprudence of original intent as follows:
[T]hat jurisprudence treats the Constitution like a contract. When the framers created our government by writing the Constitution, they limited the government's powers in the same document. Courts can enforce their agreement by figuring out what limits the framers intended to place on the government they created. But ... if courts depart from the intent of the framers, they are assuming a power to restrict government that they were never given.... [T]he jurisprudence of original intent is the safest way to avoid judicial tyranny. By confining the judges to the words of the Constitution as understood by the framers, we ensure that they will not go too far; we bar them from making decisions that in a democratic society are properly made by a political majority. Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law 23 (1988) (footnote omitted).
See also John Hart Ely, Democracy And Distrust: A Theory Of Judicial Review 1 (1980) (originalism is also known as interpretivism, which posits that "judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution"); Tushnet, supra at ch. 1 (discussing the difficulties of the originalist analysis).
[FN27]. Paul Brest, The Misconceived Quest for the Original Understanding, in Interpreting Law and Literature: A Hermeneutic Reader 69 (Sanford Levinson & Steven Mailloux eds. 1988) (footnote omitted); see also William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, in Interpreting Law And Literature 13 (arguing against originalism); Tushnet, supra note 26, at 22 (stating that according to the originalism theory, judges should confine themselves to enforcing stated or clearly implied constitutional norms); Harry H. Wellington, Interpreting The Constitution: The Supreme Court And The Process Of Adjudication 49 (1990) (arguing that by original intent, originalists refer not only to the intent of the framers or founders of the Constitution, but also to the intent of those who drafted amendments to the Constitution); James Boyd White, Justice As Translation: An Essay In Cultural and Legal Criticism 113-40 (1990) (discussing the original intention theory); Earl Maltz, Some New Thoughts on an Old Problem -- The Role of the Intent of the Framers in Constitutional Theory, 63 B.U. L. Rev. 811 (1983) (setting forth arguments regarding originalism).
For additional discussions of originalism, see Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional "Interpretation," 58 S. Cal. L. Rev. 551 (1985); Louis H. Pollak, "Original Intention" and the Crucible of Litigation, 57 U. Cin. L. Rev. 867 (1989); Larry G. Simon, The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?, 73 Cal. L. Rev. 1482 (1985).
[FN28]. On the notion of democracy and the Constitution, Professor Suzanna Sherry has noted that the "founding generation mistrusted democracy" and believed that " 'the people ... should have as little to do as may be about the Government."' Suzanna Sherry, An Originalist Understanding of Minimalism, 88 Nw. U. L. Rev. 175, 176 (1993) (footnote omitted) (quoting Roger Sherman).
The founders distrusted the common people and structured the Constitution to put as little power as possible in the hands of the masses. They expected instead that their newly created democracy would be run by people like themselves, people they could trust. Thomas Jefferson, the great democrat, reflected that sanguine trust in an aristocratic judiciary when he wrote to James Madison in 1789, praising judicial review as a necessary safeguard for the soon-to-be-written Bill of Rights. "[W]hat degree of confidence," he wrote, "would be too much for a body composed of such men as Wythe, Blair, and Pendleton?" Id. (footnote omitted) (Wythe, Blair, and Pendleton, all members of Virginia's highest court, endorsed aggressive judicial review). According to Professor Sherry, the "source of the founders' limited vision of democracy is classical or civic republicanism." Id. at 178.
To the extent that the founders were good civic republicans, their elitism was derived not so much from economic self-interest as from a belief that only the "natural aristocracy" had the education, leisure, and inclination to deliberate rationally and disinterestedly about the good of the nation. The Constitution they wrote and ratified reflected at least this republican reliance on the few rather than the many. Id.
[FN29]. It is often argued that restraining judicial tyranny via the original intent analysis promotes majoritarianism and democracy. One scholar, however, has noted:
[N]o serious historian can accept the notion that there was anything "democratic" about the writing or ratification of the Constitution. The delegates to the Philadelphia convention were chosen by state legislatures which were not chosen by a majority of adults. Most adult Americans were not allowed to vote for delegates to the ratification conventions. Thus, a true "intentionalist" perhaps ought to argue for unrepresentative government. Paul Finkelman, The Constitution and the Intentions of the Framers: The Limits of Historical Analysis, 50 U. Pitt. L. Rev. 349, 395 n.219 (1989).
[FN30]. See U.S. Const. art. V; Brest, supra note 27, at 69; Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 862 (1989).
[FN31]. Tushnet, supra note 26, at 23.
[FN33]. Lino A. Graglia, "Interpreting" the Constitution: Posner on Bork, 44 Stan. L. Rev. 1019, 1023-24 (1992).
[FN34]. Brest, supra note 27, at 69.
[FN37]. Berger, supra note 19, at 7.
[FN38]. Id. at 10-19; see also Tribe & Dorf, supra note 25, at 10 (arguing that the original purpose of the Fourteenth Amendment was far less noble than some have come to believe).
[FN39]. Edwin Meese, Address before the District of Columbia Chapter of the Federalist Society Lawyers Division, in Interpreting Law And Literature, at 29.
[FN41]. Id.; see also Edwin Meese, Interpreting the Constitution, in Interpreting the Constitution: The Debate Over Original Intent 13, 15 (Jack N. Rakove ed., 1990).
[FN42]. Professor Daniel Farber has noted some of the methodological problems with originalism. One problem is "whether we can determine the original intent with any confidence. Various methodological problems may make it difficult to do so, and of course, if we cannot determine original intent, we cannot make it the basis for interpretation." Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085, 1087 (1989). One problem, according to Farber, is that "the framers of various provisions often failed to discuss the issue in which we are interested today." Id. Another problem is whether the documentary evidence is reliable. "There have been recurring charges that Madison significantly altered his notes at a later date, perhaps to reflect his own changing views of the meaning of the Constitution." Id. at 1088; see also James Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Tex. L. Rev. 1, 33-34 (1986) (arguing that Madison's notes provide an abbreviated account of the proceedings leading to the Constitution).
Professor Farber also asks whether the Framers themselves expected that their own intentions would control subsequent interpretations of the Constitution; whether the Framers anticipated that courts would defend human rights beyond the rights expressly listed in the Bill of Rights; notes that one difficulty in implementing originalism is determining the level of intent; and notes the argument that originalism is too static and thereby disregards the need to keep the Constitution up to date with contemporary and changing times. Farber, supra note 42, at 1089-97; see also id. at 1097-1106 (discussing the normative arguments for originalism).
[FN43]. Philip B. Kurland, Bork: The Transformation of a Conservative Constitutionalist, 9 Cardozo L. Rev. 127, 128 (1987).
[FN44]. It is noteworthy that most constitutional scholars reject the originalism theory. See Posner, supra note 1, at 293-99; Posner, supra note 23, at 1373-80.
[FN45]. It has been argued that if the originalist approach was not part of the "contract" entered into by the Framers, those who advocate original intent analysis cannot justify originalism by mere reference to the Framers' intent. Tushnet, supra note 26, at 24. "They must go beyond the contract to find the principle that the contract should be interpreted according to the framers' intent. If they can go beyond it for that, why not go beyond it for other things as well?" Id. (footnote omitted). Further, even if the Framers entered into a contract, individuals who are alive today did not enter into and are therefore not parties to any such agreement. Id.
[FN46]. Some nonoriginalists contend that the originalist argument that only originalism is consistent with democracy must be assessed in light of the meaning and definition of democracy. Because liberal traditional democracy means majority rule tempered by some sort of judicial review, "originalists cannot persuade by stipulating a particular definition of democracy when what is at stake is precisely what sort of judicial review is consistent with a liberal idea of democracy." Id. at 27 (footnote omitted).
[FN47]. Wellington, supra note 27, at 50. Some scholars have concluded that the Founders were deeply divided over the use of the Philadelphia historical record, and have further concluded that there was no agreement as to the relevance of the historical record of the state conventions. See, e.g., id. at 51.
[FN48]. Powell, supra note 4, at 948.
[FN49]. Wellington, supra note 27, at 50-51.
[FN50]. Id. at 51.
[FN51]. Brennan, supra note 27, at 15.
[FN52]. Id. at 15-16. Bork agrees with Brennan that the view described in the quoted passage is arrogant, or would be, if anyone actually took such a position. "The requirement that the judge know what the specific intention of the lawgiver was regarding the case at hand would destroy all law." Bork, supra note 13, at 162. In Bork's view, Brennan "demolished a position no one holds, one that is not only indefensible but undefended." Id.
[FN53]. Brennan, supra note 27, at 17.
[FN54]. Roy L. Brooks & Mary Jo Newborn, Critical Race Theory and Classical-Liberal Civil Rights Scholarship: A Distinction Without a Difference, 82 Cal. L. Rev. 787, 792 (1994).
[FN56]. See Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Board of Education, 347 U.S. 483 (1954).
[FN57]. See generally C. Vann Woodwar, The Strange Career of Jim Crow (2d rev. ed. 1966); John H. Franklin, History of Racial Segregation in the United States, 304 Annals Am. Acad. Pol. & Soc. Sci. 1 (1956).
[FN58]. See Brooks & Newborn, supra note 54, at 792-93.
[FN59]. Kluger, supra note 18, at 625.
[FN60]. Id. at 626. The Joint Committee of Fifteen was comprised of nine representatives and six senators. Id. For a discussion of the Committee's involvement in Reconstruction-era legislation, see generally W.E.B. DuBois, Black Reconstruction in America 1860-1880 (1935, 1962).
[FN61]. The Bill provided:
All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States, without distinction of color, and there shall be no discrimination in civil rights or immunities among the inhabitants of any state or territory of the United States on account of race, color, or previous condition of servitude. Kluger, supra note 18, at 627. The Bill further guaranteed that every inhabitant of this country would have the following:
the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. Id. at 628.
[FN63]. Id. at 635.
[FN64]. Id. at 628-29 (emphasis added).
[FN65]. Id. at 629.
[FN66]. "During the Civil Rights Bill debate ... there was considerable evidence that many Congressmen believed that the bill as originally framed would have eliminated racially segregated schools. But elimination of the 'no- discrimination' language seemed to have ended that debate." Id. at 632.
[FN67]. One historian, Alfred H. Kelly (who served as an expert for the NAACP Legal Defense and Educational Fund, Inc. in the Brown litigation), believed that the elimination of the no-discrimination language was significant.
The bill was amended specifically to eliminate any reference to discriminatory practices like school segregation, and I was really stumped at that point in trying to figure out how to answer the Court's question, because it looked as if a specific exclusion had been made, and so here I was caught between my own ideals as a historian and what these people in New York wanted and needed. Id. at 635. The question referred to by Kelly was one of five questions posed by the Supreme Court for the reargument in Brown: "What evidence is there that the Congress which submitted and the state legislatures ... which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?" Id. at 615.
[FN69]. Brooks & Newborn, supra note 54, at 815 n.114. For discussion of the Freedmen's Bureau Act of 1866, see Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va. L. Rev. 753 (1985).
[FN70]. Proposed Fourteenth Amendment to the Constitution, quoted in Andrew Kull, The Color-Blind Constitution 83 (1992) (footnote omitted).
[FN71]. Id. at 83-84.
[FN72]. Id. at 85 (citation omitted).
[FN73]. See DuBois, supra note 60, at 301-07.
[FN74]. Kluger, supra note 18, at 633-34.
[FN75]. Id. at 634 (emphasis added).
[FN76]. Id. at 635.
[FN77]. Berger believes that original intention is important for the reasons given by Madison:
[I]f "the sense in which the Constitution was accepted and ratified by the Nation ... be not the guide in expounding it, there can be no security for a consistent and stable government, more than for a faithful exercise of its powers." A judicial power to revise the Constitution transforms the bulwark of our liberties into a parchment barrier. This it was that caused Jefferson to say, "Our peculiar security is in the possession of a written constitution...." Given a system founded on a dread of power, with "limits" to fence it about, those who demand compliance with those limits (pursuant to the counsel of four or five early State constitutions) are not to ... satisfy "the need for certainty ... If we pretend that the framers had a special sort of wisdom, then perhaps we do not have to think too hard about how to solve pressing social problems." The issue rather is whether solution of those "pressing social problems" was confided to the judiciary. Berger, supra note 19, at 364-65 (footnotes omitted).
[FN78]. Berger appeals to the Founder's denotations, see David A.J. Richards, Originalism Without Foundations, 65 N.Y.U. L. Rev. 1373 (1990) (reviewing Bork, supra note 13), and
holds that the meaning of a constitutional provision is to be understood in terms of the things in the world to which the relevant Founders would have applied the term at the time the constitutional provision was adopted authoritatively. A provision should be interpreted to include certain things only if those things would have been included within the meaning of the clause by the Founders. Id. at 1380. An originalist like Berger will "look ... at the historical record, determine the Founders' denotations, and apply the particular constitutional provision accordingly.... A good originalist judge, courageously resisting contemporary moral impulses to the contrary, must find Brown wrongly decided." Id. (footnote omitted).
[FN79]. Berger, supra note 19, at 10.
[FN80]. Id. at 13-14 (footnotes omitted).
[FN81]. See supra note 76 and accompanying text.
[FN82]. Berger, supra note 19, at 124 (footnote omitted).
[FN83]. Id. at 125.
[FN84]. Indeed, "few abolitionists were interested in offering blacks the equality they touted so highly.... [T]he anguish most abolitionists experienced as to whether slaves should be granted social equality as well as political freedom is well documented." Derrick A. Bell, Jr., Book Review, 76 Colum. L. Rev. 350, 358 (1976).
[FN85]. Kull, supra note 70, at 96. Professor Kull points out that, after the Fourteenth Amendment was ratified in 1868, "the few northern states that still provided public schools for white children ... amended their school statutes to substitute 'separate-but-equal' provisions." Id. at 89 (citation omitted). Thus, the
contention that 'equal protection' forbade the government to teach black and white children separately proved very difficult to establish. The framers of the Fourteenth Amendment had declined to write the antidiscrimination principle into the Constitution, and the first generation of judges to construe the amendment declined to read what had not been written. Id. Kull also discusses an 1871 decision by the Supreme Court of Ohio wherein the court concluded that "the Fourteenth Amendment only affords to colored citizens an additional guaranty of equality of rights to that already secured by the constitution of the State.... Equality of rights does not involve the necessity of educating white and colored persons in the same school ...." Id. at 95 (quoting State ex rel. Garnes v. McCann, 21 Ohio St. 198, 211 (1871)).
[FN86]. Bickel, supra note 10, at 100 (footnote omitted); see also Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 59 (1955) ("The evidence of congressional purpose is as clear as such evidence is likely to be, and no language barrier stands in the way of construing the section in conformity with it."); Herman Schwartz, Comment, 47 Md. L. Rev. 216, 220 (1987) (commenting on Charles M.C. Mathias, Jr., Ordered Liberty: The Original Intent of the Constitution, 47 Md. L. Rev. 174 (1987) ("[I]f anything is clear from the ... enactment [of the Fourteenth Amendment], it is that the amendment was not meant to outlaw segregated schools.").