We cannot ring up the framers and ask them whether we are reading their words aright. [FN1]
* * * * * For my part, I have always clung to the original intention, even when the result ran counter to my aspirations. [FN2]
Was public school segregation constitutional? Was the United States Supreme Court's decision in Brown v. Board of Education [FN3] consistent with the intent [FN4] of the framers and adopters of the Fourteenth Amendment to the United States Constitution? [FN5] Did the Brown Court's reading of the Fourteenth Amendment and its rejection of the separate-but-equal doctrine [FN6] set *230 out in Plessy v. Ferguson [FN7] recognize and put into place the "correct" view and application of that amendment from the perspective of proponents of original intent or originalism? [FN8] Can Brown be justified under an intentionalist interpretive analysis which asks whether the adopters of the Fourteenth Amendment intended to outlaw school segregation? [FN9] Brown has generated considerable commentary dealing with various issues related to the Court's holding and opinion. [FN10] One key issue is whether the Court's ruling is consonant with the history, purposes, and the original intent of the Fourteenth Amendment. [FN11] One prominent commentator, Robert Bork, has addressed that issue and has attempted to explain why Brown is consistent with the original understanding of the Constitution. In a 1971 law review article, Bork noted that the Equal Protection Clause of the Fourteenth Amendment was intended to enforce a "core idea of black equality against government discrimination," and argued that judges must not inject their own values into constitutional interpretation. [FN12] In The Tempting of America: The Political Seduction of the Law, [FN13] Bork argued, inter alia, that it is possible to square the result in Brown with the original understanding of the Fourteenth Amendment. [FN14] According to Bork,"[t]he purpose that brought the Fourteenth Amendment into being was equality before the law, and equality, not separation, was written into the text." [FN15] Thus, in his view, the Brown Court's choice of equality over state-imposed separation of the races could be squared with the original understanding of the Fourteenth Amendment. [FN16] Is Bork correct? Is the result reached by the Court in Brown consistent with the original understanding of the Fourteenth Amendment? What should *231 we make of certain facts which support the proposition that the adopters of the Fourteenth Amendment knew of, and did not intend to forbid, segregated education? What should we make of the fact that the sponsors of the Civil Rights Act of 1866 (an Act which the Fourteenth Amendment was intended to incorporate into the Constitution) expressly disclaimed any intent to interfere with segregated education? [FN17] What should we do with the fact that in 1868 (the year of the enactment of the Fourteenth Amendment) eight northern states permitted segregated schools, and five other northern states excluded African-American children entirely from public education? [FN18] Indeed, the spectators in the gallery of the United States Senate during the debate on the Fourteenth Amendment were segregated on the basis of race, [FN19] and the Reconstruction Congress knew of existing segregated schools in the District of Columbia and maintained those schools on a segregated basis. [FN20] Given the foregoing facts, how persuasive is the argument that Brown is consistent with an originalist reading of the Fourteenth Amendment? It is not surprising that one may not find it appealing to argue that Plessy was right and that Brown was wrongly decided, [FN21] or that the Court's decision to reject *232 the constitutional apartheid of Plessy was erroneous. [FN22] But what if the originalist methodology leads to the conclusion that Brown cannot be reconciled with the "original understanding"? [FN23] The relevance of these questions comes into play as I discuss what I consider to be the significant difficulties encountered by Robert Bork as he attempts to demonstrate why Brown is consonant with the understanding of the adopters of the Fourteenth Amendment. These difficulties arise from the asserted originalist methodology employed by Bork in his examination and explanation of Brown. As discussed below, if Brown was subjected to "pure" originalist analysis, [FN24] it should have been concluded that segregated schools were not forbidden by the Fourteenth Amendment. If Brown cannot withstand "pure" originalist scrutiny, and one nevertheless concludes that Brown correctly held that segregated public schools were unconstitutional, what methodology informs and explains Bork's segregation-is-unlawful conclusion? That question is the focus of this article. [FN25]
II. Originalism Generally
Originalism [FN26] has been defined as the "familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution *233 or the intentions of its adopters." [FN27] Generally, originalism calls for the interpreter of the Constitution or an amendment thereto to ascertain the will of the "people" and to adhere to the text and the original understanding. Originalism is said to be more compatible with the nature and purpose of the *234 Constitution in a democratic society. [FN28] The originalist analysis treats the Constitution like a contract, prevents the law from reflecting certain changes in the original values that were undesirable to the framers of the Constitution or the adopters of the constitutional amendments, constrains the discretion of judicial decision makers and discourages judicial "tyranny." [FN29] The originalist analysis also strives to assure that the Constitution will be interpreted consistently over time, and requires society to devote time and deliberation to a subject before any original values and intents of the Constitution can be changed or set aside through the constitutional amendment process. [FN30] The underpinnings of originalism include the view that the framers created this nation's government by writing a constitution which expressly limited the federal government's powers; thus, courts "can enforce their agreement by figuring out what limits the framers intended to place on the government that they created. . . . [I]f courts depart from the intent of the framers, they are assuming a power to restrict government that they were never given." [FN31] As to the fear of judicial tyranny, some originalists have argued *235 that confining the courts to the words of the Constitution, as understood by the framers, ensures that courts will not go too far and will not make decisions that can only be made by a political majority. [FN32] As stated by one scholar: "In its clearest and strongest form this originalist position reduces to the tautology that no law should be held unconstitutional unless it is prohibited by the Constitution; that is, unless it is in fact inconsistent with the Constitution as understood by those who made it authoritative." [FN33] There are at least three forms of originalism. One form, strict textualism, calls for the construction of phrases and words in a narrow and precise fashion. [FN34] Another form of originalism, strict intentionalism, seeks to ascertain and to give effect to the intent of the framers of a constitutional provision. [FN35] The interpreter must determine how the framers would have applied the provision to a particular situation and then apply it accordingly. Under a third form, moderate originalism, the text of the Constitution is authoritative, even though many of the Constitution's provisions are inherently open-ended, and courts are more concerned with the framers' general purposes than with their specific intentions. [FN36] One originalist, Raoul Berger, has argued that the original intent of the framers is "as good as written into the text" of the Constitution and its amendments. [FN37] According to Berger, the principal intended beneficiaries of the Fourteenth Amendment were racist white Republicans; on that account, the meaning the Supreme Court has given to the Fourteenth Amendment in modern times is ahistorical and therefore illegitimate. [FN38] Another advocate of a form of originalism, Edwin Meese, has argued:
[A] jurisprudence that seeks to be faithful to our Constitution -- a jurisprudence of original intention, as I have called it -- is not difficult to describe. Where the language of the Constitution is specific, it must be obeyed. Where there is a demonstrable consensus among the Framers and ratifiers as to a principle stated or implied by the Constitution, it should be followed. Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself. [FN39] Meese conceded that the framers were not clairvoyant and could not foresee every issue that would be submitted for judicial review. [FN40] "Nor could they predict how all foreseeable disputes would be resolved under the Constitution. *236 The point is, however, that the meaning of the Constitution can be known." [FN41] That originalism is a much debated theory [FN42] should not be surprising. Professor Philip Kurland has expressed the view that originalism "is not a formula or a theory but only a slogan pursuant to which old decisions can be replaced by new ones." [FN43] Proponents of originalism are faced with arguments made by nonoriginalists [FN44] who do not agree that the Constitution should be treated like a contract, [FN45] that interpretation of the Constitution should be limited to that document's text and the intent of the framers, or that originalism is needed to check judicial tyranny. [FN46] Nonoriginalists ask whether the Framers agreed, or gave any indication, that future interpretations of the *237 Constitution would or should be guided by the historical record of the proceedings in Philadelphia and in subsequent state conventions. [FN47] Consider the view of Professor H. Jefferson Powell:
It is commonly assumed that the 'interpretive intention' of the Constitution's framers was that the Constitution would be construed in accordance with what future interpreters could gather of the framers' own purposes, expectations, and intentions. Inquiry shows that assumption to be incorrect. Of the numerous hermeneutical options that were available in the framers' day . . . none corresponds to the modern notion of intentionalism. [FN48] If the framers did not intend that the Constitution would be construed in accordance with what future interpreters could, or would, make of the framers' purposes, intentions, and expectations, the framers' "will, or desire, cannot be claimed today as authority for the use of their recorded intentions." [FN49] In the absence of evidence demonstrating that "original intent was . . . meant to be a gloss on the text," the people's consent to original intent cannot be invoked. This deprives "originalism of powerful rhetorical support. It leaves the originalist clinging to tradition and leaves open the question of how much we should count on tradition in the quest for authority." [FN50] An avowed nonoriginalist, Justice William Brennan, has urged that "those who find legitimacy in fidelity to what they call 'the intentions of the Framers"' demand that "justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them." [FN51] It is a view that feigns self-effacing deference to the
specific judgment of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage point we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions. All too often, sources of potential enlightenment such as the records of the ratification debates provide sparse or ambiguous evidence of the original intention. . . . And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive. One cannot help but speculate that the chorus of lamentations calling for interpretation faithful to "original intention" -- and proposing nullification of interpretations that fail this quick litmus test -- *238 must inevitably come from persons who have no familiarity with the historical record. [FN52] Brennan argues that when one analyzes the history of the framing and the intervening history of interpretation, the "ultimate question must be, What do the words of the text mean in our time?" [FN53] This discussion of originalism, and some of the arguments for and against that analysis, are intended to provide a brief, but not exhaustive, overview of the originalist theory.
III. The Fourteenth Amendment and Segregation
The first civil rights policy of the United States was the policy of "separate but unequal." [FN54] Under that policy, which arose with the rise and institution of slavery, "the races were kept separate and unequal with whites being placed in positions superior to those of African-Americans." [FN55] With the addition of the Fourteenth Amendment to the Constitution near the end of the nineteenth century, "separate but unequal" gave way (in theory) to "separate but equal" [FN56] and Jim Crow. [FN57] Like the "separate but unequal" practice, the "separate but equal" policy was based on race and racism and served to keep blacks in a subordinate position relative to whites. [FN58] What did the 39th Congress intend and say about segregation when it fashioned the Fourteenth Amendment, which passed both houses of Congress in 1866 and was ratified by three-fourths of the states two years later? Why was the Plessy Court wrong when it concluded that "separate equality was lawful"? [FN59] Most of the Reconstruction legislation brought before the 39th Congress in 1865 and 1866 was prepared and introduced by the "Joint Committee of Fifteen." [FN60] In January 1866, Senator Lyman Trumbull introduced a Civil Rights Bill which would have confirmed that blacks were to be free from legal discrimination as they exercised their rights as citizens guaranteed *239 by the Thirteenth Amendment. [FN61] Those who opposed the Bill contended that the legislation would proscribe anti-miscegenation laws and Pennsylvania's requirement of segregated schools. [FN62] Representative James Wilson, the chairman of the House Judiciary Committee and the House manager of the bill, [FN63] clarified the meaning of its language. "Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? . . . No. . . . Nor do they mean that all citizens shall sit on the same juries, or that their children shall attend the same schools. These are not civil rights or immunities." [FN64] An opponent of the bill, Representative Andrew Jackson Rogers, argued that the bill's "no discrimination" language "would surely eliminate such measures as Kentucky's law punishing Negroes unequally for committing rape, Indiana's law forbidding Negroes to acquire real estate, and Pennsylvania's requirement of separate schools for Negroes." [FN65] Representative John Bingham, a member of the Joint Committee of Fifteen and the drafter of the Fourteenth Amendment, moved to strike the no-discrimination language from the bill. [FN66] After that language was removed, [FN67] the bill was passed by both the House and the Senate, and both *240 houses voted to override President Andrew Johnson's veto. [FN68] In that same year, Congress passed the Freedmen's Bureau Act of 1866, race-conscious legislation that required the government to provide the newly-freed slaves with clothing, food, legal assistance, special schools, and other services to ease their transition from slavery to so-called freedom. [FN69] On April 21, 1866, Representative Thaddeus Stevens presented a proposed constitutional amendment which provided as follows:
Section 1. No discrimination shall be made by any state, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.
Sec. 2. From and after the fourth day of July, in the year one thousand eight hundred and seventy-six, no discrimination shall be made by any state, nor by the United States, as to the enjoyment by classes of persons of the right to suffrage, because of race, color, or previous condition of servitude.
Sec. 3. Until the fourth day of July, one thousand eight hundred and seventy-six, no class of persons, as to the right of any of whom to suffrage discrimination shall be made by any state, because of race, color or previous condition of servitude, shall be included in the basis of representation.
Sec. 4. Debts incurred in aid of insurrection or of war against the Union, and claims of compensation for loss of involuntary service or labor, shall not be paid by any state nor by the United States.
Sec. 5. Congress shall have power to enforce by appropriate legislation, the provisions of this article. [FN70] Representative Bingham subsequently and successfully moved to amend section 5 (with the language that now appears in section 1 of the Fourteenth Amendment):
Sec. 5. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. [FN71] Bingham later moved to strike Section 1 of the proposed amendment (containing the no-discrimination principle) and to replace that section with the language he had proposed for Section 5. That motion carried, "ending the last chance that an explicit statement of the antidiscrimination principle *241 might be added to the Constitution." [FN72] The language now set forth in the Fourteenth Amendment is the language which survived the legislative process. [FN73] What did the framers and ratifiers of the Fourteenth Amendment think about public education and segregation? Consider the view of Richard Kluger:
By all available evidence . . . the framers of the Fourteenth Amendment would have been familiar with public education only as a developing concept in most states, not only the South. Whether those schools were segregated mattered a good deal less, to most contemporary supporters of the Negro's rights, than that schoolhouses and teachers be provided in sufficient numbers and with adequate financing to improve his skills and economic opportunity. At the time the amendment became law, the practice and nature of school segregation varied widely. Thirteen states either had no segregation laws or specifically forbade the practice (the six New England states plus Iowa, Michigan, Minnesota, Nebraska, New Jersey, Oregon, and Wisconsin). Eight states either provided for separate schools or left it up to local communities to adopt that practice if they wished (California, Kansas, Missouri, Nevada, New York, Ohio, Pennsylvania, and West Virginia). Five states outside the old Confederacy either directly or by implication excluded colored children entirely from their public schools (Delaware, Indiana, Illinois, Kentucky, and Maryland). Only five states could reasonably have been said to have abandoned segregated schools in the immediate wake or as a result of the Fourteenth Amendment -- Connecticut, Florida, Louisiana, Michigan, and South Carolina -- and three of those subsequently restored the practice. [FN74] Thus, Kluger concluded,
the historical evidence seemed to demonstrate persuasively that neither the Congress which framed the Fourteenth Amendment nor the state legislatures which adopted it understood that its pledge of equal protection would require the end of segregation in the nation's public schools. But it is quite another -- and unwarranted -- matter to conclude that Congress and those states contemplated that the amendment would not or could not, at some future time, require the abolition of segregation. [FN75] Another historical point of significance concerns the fact that "Congress had permitted segregated schools in the District of Columbia from 1864 onward -- and that, though the matter was debated thoroughly between 1871 and 1875, Congress had declined to include a prohibition against segregated schools in the Civil Rights Act of 1875." [FN76] How does this point, and the other matters discussed above, affect Robert Bork's originalist understanding of *242 the Fourteenth Amendment and his argument that Brown can be squared, as a matter of originalism, with the Fourteenth Amendment?
Raoul Berger [FN77] has concluded that Brown is not consistent with the original understanding of the Fourteenth Amendment. [FN78] For Berger, "[t] he key to an understanding of the Fourteenth Amendment [was] that the North was shot through with Negrophobia, that the Republicans, except for a minority of extremists, were swayed by the racism that gripped their constituents rather than by abolitionist ideology." [FN79] He stated that:
Time and again Republicans took account of race prejudice as an inescapable fact. George W. Julian of Indiana referred to the "proverbial hatred" of Negroes, Senator Henry S. Lane of Indiana to the "almost ineradicable prejudice," . . . Senator William M. Stewart of Nevada to the "nearly insurmountable" prejudice, James F. Wilson of Iowa to the "iron-cased prejudice" against blacks. These were Republicans, sympathetic to emancipation and the protection of civil rights. Then there were the Democratic racists who unashamedly proclaimed that the Union should remain a "white man's" government. In the words of Senator Garrett Davis of Kentucky, "The white race . . . will be proprietors of the land, and the blacks its cultivators; such is their destiny. . . ." It is against this backdrop that we must measure claims that the framers of the Fourteenth Amendment swallowed abolitionist ideology hook, line, and sinker. [FN80]*243 Noting that Congress had permitted segregated schools in the District of Columbia, [FN81] Berger argued:
[I]t is unrealistic to presume that a Congress which has plenary jurisdiction over the District and yet refused to bar segregation there would turn around to invade State sovereignty, which the framers were zealous to preserve, in order to impose a requirement of desegregation upon the States. The difference was fully appreciated by Senator Henry Wilson, a Radical Republican from Massachusetts, who introduced a bill providing for suffrage in the District of Columbia, but lamented that in "dealing with the States," State "constitutions block up the way and we may not overleap the barriers." [FN82] Berger further noted that "the Senate gallery itself was segregated" at the time the Fourteenth Amendment was being considered by Congress. [FN83] Given the historical record, it is not surprising that many scholars have concluded that those who voted for and ratified the Fourteenth Amendment did not intend that the amendment did, or would, require the desegregation of public schools. [FN84] For example, Professor Andrew Kull has noted that the "men who wrote and voted for the Fourteenth Amendment did not thereby intend to prohibit school segregation." [FN85] Professor Alexander Bickel, answering the question whether it was the intention of the framers of the Fourteenth Amendment to forbid the states to enact and enforce segregation statutes, answered that "[i]f one goes to the historical materials wih [sic] this specific question, the only answer that can emerge is in the negative. The framers did not intend or expect then and there to outlaw segregation, which, of course, was a practice widely prevalent in the North." [FN86] In Bickel's view, *244 the Fourteenth Amendment "was meant to apply neither to jury service, nor suffrage, nor antimiscegenation statutes, nor segregation." [FN87] Professor Michael Gerhardt has recognized the fact that the "framers of the Fourteenth Amendment supported segregated schools before, during, and after drafting of the Fourteenth Amendment." [FN88] Professor Ronald Dworkin noted that the framers "shared the view . . . that racial segregation of public schools did not violate the clause. (Many of them, in fact, themselves voted to segregate schools.)" [FN89] Professor Lino Graglia has written that "the Equal Protection Clause of the Fourteenth Amendment almost certainly was not intended to disallow racial segregation in schools." [FN90] In addition, Professor Mark Tushnet has noted that the legislative history of the Fourteenth Amendment "leads one to conclude that school segregation is not unconstitutional," and that if the framers were asked "whether the amendment outlawed segregation in public schools, they would answer 'No."' [FN91] If the framers of the Fourteenth Amendment did not intend to outlaw segregation in the public schools, and if the framers' intent controls, is the Court's decision in Brown consistent with an originalist view and understanding of the amendment? If so, in what way? If not, why not?
Prior to 1954, the U.S. Supreme Court decided six cases involving the separate but equal doctrine in the field of public education. [FN92] In two cases, the validity of constitutional apartheid was not challenged by the Court. [FN93] In the remaining four cases, all at the graduate school level, the Court, while not re-examining Plessy v. Ferguson, [FN94] found unconstitutional inequality because the benefits enjoyed by white students were denied to black students. [FN95] Indeed, in one decision the Court expressly reserved decision on the question *245 presented and addressed in Brown -- whether Plessy should be held inapplicable in the context of public education. [FN96] Brown addressed the plaintiffs' contention that segregated public schools were not "equal" and could not be made "equal." [FN97] The Court concluded that the arguments of the parties and its own investigation was "not enough to resolve the problem with which we are faced." [FN98] In its view, the proponents of the post-Civil War amendments intended the amendments to remove all legal distinctions among persons born or naturalized in the United States. Opponents of the amendments "were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty." [FN99] An additional reason cited by the Court for the inconclusive nature of the Fourteenth Amendment's history was the status of public education prior to, and at the time of, the amendment. "Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states." [FN100] Consequently, the Court concluded, it was not surprising that there was so little in the history of the Fourteenth Amendment relating to the intended effect of the amendment on public education. [FN101] Turning to the case before it, the Brown Court noted the lower courts' findings that the black and white schools involved had been, or were being, "equalized" with respect to buildings, curricula, qualifications, salaries of teachers, and other "tangible" factors. [FN102] "Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white *246 schools involved in each of the cases. We must look instead to the effect of segregation itself on public education." [FN103] [W]e cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. [FN104] The segregation of black public school children solely because of race deprives them of equal educational opportunities, the Court said. To separate black children from other children "of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." [FN105] The Court then quoted from a finding by the lower court in the Kansas case:
Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of the child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational, and mental development of negro children and to deprive them of the benefits they would receive in a racial[ly] integrated school system. [FN106] Whatever may have been the extent of psychological knowledge at the time of Plessy, the Court declared that the finding quoted above "is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected." [FN107] Accordingly, the Court concluded:
[I]n the field of public education the doctrine of "separate but equal" has no place. Separate education facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. [FN108]*247 Having so ruled, the Court restored the cases to its docket for further argument on the question of appropriate relief and the issue of formulating decrees. [FN109] Brown was a great decision, especially when viewed in the context of 1954 and the then-extant framework of racial apartheid. [FN110] The Court's holding that de jure discrimination in public education violated the Equal Protection Clause, thereafter extended to all forms of state-enforced segregation, "has come to stand for the principle that the Equal Protection Clause almost never permits explicit racial classifications." [FN111] The Brown principle is *248 "deeply race-conscious," and the prohibition against racial discrimination "reflects a deliberate decision to treat blacks differently from other groups." [FN112] Moreover, Brown "can quite sensibly be read to proscribe not the mere use of race, but rather systemic state practices that impose harm on a subordinated group." [FN113] Brown is an illustration of the Warren Court's recognition of a policy -- segregation -- "that was inconsistent with the values held by the Justices" and which gave the Court "strong incentives for activism in this area." [FN114] "Those incentives were strengthened by the institutional paralysis of Congress, thwarted by Southern filibusters from overriding apartheid itself but equally unwilling to discourage the Court." [FN115] Notwithstanding the moral greatness of the result reached in Brown, certain legal aspects of the Court's decision and analysis were and continue to be scrutinized, [FN116] including the questions of whether the history and "central purpose" of the Fourteenth Amendment justify the Court's decision, [FN117] and whether the framers of the Fourteenth Amendment intended to have equality extended to public schools. [FN118] Was Brown, viewed from an originalist perspective, correctly decided? Did the Court's opinion, analysis, and result accurately reflect the intentions of the framers of the Fourteenth Amendment?
V. Bork's Flawed and Incoherent Originalism
One proponent of originalism, Justice Antonin Scalia, has noted what he calls the greatest defect of originalism -- the difficulty in applying it correctly. [FN119] Properly done, Scalia stated, originalism requires the consideration of an enormous mass of material, including the records of the ratifying debates of all the states when the issue is one of interpreting the Constitution and amendments thereto. [FN120] Scalia also calls for the evaluation of the reliability *249 of that material, as well as an immersion into the political and intellectual atmosphere of the pertinent time. "It is, in short, a task sometimes better suited to the historian than the lawyer." [FN121] A second serious defect of originalism, according to Justice Scalia, is that in an undiluted form "it is medicine that seems too strong to swallow." [FN122] Consider, for example, the language in the Constitution providing that Congress has the power "[t]o coin Money, [and] regulate the Value thereof." [FN123]Paper currency, as legal tender, did not exist until the time of and during the Civil War; at that time, Congress passed three legal tender acts providing for the issuance of $450 million in United States notes. [FN124] In Hepburn v. Griswold, [FN125] the Supreme Court ruled that the legal tender acts were unconstitutional -- a ruling in accord with the framers' intention to avoid the use of paper currency not convertible on demand into money as had occurred during the American Revolution. [FN126] One year after the Court's decision, and notwithstanding the view that the framers intended that the phrase "[t]o coin Money" indicated "[t]heir determination to sanction only a metallic currency," [FN127] the Court held that the federal government could issue paper money vested with the quality of legal tender. [FN128] One originalist, Robert Bork, has acknowledged that if a judge now held that paper money is unconstitutional, "we would think he ought to be accompanied not by a law clerk, but by a guardian." [FN129] Bork's analysis of Brown reflects and suffers from both of the defects noted by Justice Scalia. Bork has argued that the Supreme Court's decision is consistent with an originalist analysis of the Fourteenth Amendment. Before turning to a discussion of Bork's reasoning, the reader may be interested in the fact that Bork had at one time pointed out the deficiencies of attempting to rely on the "intent" of the framers in constitutional interpretation. [FN130] Among other things, Bork had stated that the Equal Protection Clause was "meant to be important, [but] the words tell the judge very little." [FN131] "History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted, and ratified the great clauses." [FN132] Bork's view obviously changed, as reflected in a 1971 article discussing judicial interpretation. "[T]he Court's power is legitimate only if it has, and can demonstrate in reasoned opinions that it has, a valid theory, *250 derived from the Constitution. . . ." [FN133] Thus, Bork now contends that current practices of judicial interpretation are illegitimate encroachments on the sovereignty of the Constitution (more specifically, the Founders of 1787, the ratifying conventions of 1787-1788, and the Congresses and state legislatures that ratified subsequent constitutional amendments). [FN134] Discussing Brown in his 1971 article, Bork stated that the words of the Fourteenth Amendment
are general but surely that would not permit us to escape the framers' intent if it were clear. If the legislative history [of the Fourteenth Amendment] revealed a consensus about segregation in schooling and all the other relations in life, I do not see how the Court could escape the choices revealed and substitute its own, even though the words are general and conditions have changed. It is the fact that history does not reveal detailed choices concerning such matters that permits, indeed requires, resort to other modes of interpretation. [FN135] Bork then offered his own reading and analysis of the Fourteenth Amendment and Brown.
A court required to decide Brown would perceive two crucial facts about the history of the [F]ourteenth [A]mendment. First, the men who put the amendment in the Constitution intended that the Supreme Court should secure against government action some large measure of racial equality. That is certainly the core meaning of the amendment. Second, those same men were not agreed about what the concept of racial equality requires. Many or most of them had not even thought the matter through. Almost certainly, even individuals among them held such views as that blacks were entitled to purchase property from any willing seller but not to attend integrated schools, or that they were entitled to serve on juries but not to intermarry with whites, or that they were entitled to equal physical facilities but that the facilities should be separate, and so on through the endless anomalies and inconsistencies with which moral positions so frequently abound. The Court cannot conceivably know how these long-dead men would have resolved these issues had they considered, debated and voted on each of them. Perhaps it was precisely because they could not resolve them that they took refuge in *251 the majestic and ambiguous formula: the equal protection of the laws.
But one thing the Court does know: [the Fourteenth Amendment] was intended to enforce a core idea of black equality against governmental discrimination. And the Court, because it must be neutral, cannot pick and choose between competing gratifications and, likewise, cannot write the detailed code the framers omitted, requiring equality in this case but not in another. The Court must, for that reason, choose a general principle of equality that applies to all cases. For the same reason, the Court cannot decide that physical equality is important but psychological equality is not. Thus, the no-state-enforced-discrimination rule of Brown must overturn and replace the separate-but-equal doctrine of Plessy v. Ferguson. The same result might be reached on an alternative ground. If the Court found that it was incapable as an institution of policing the issue of the physical equality of separate facilities, the variables being insufficiently comparable and the cases too many, it might fashion a no-segregation rule as the only feasible means of assuring even physical equality. [FN136] Notably absent from Bork's 1971 discussion of Brown is any real discussion of the specific and pertinent history of the Fourteenth Amendment or the identification of those among the drafters or ratifiers who intended that the Fourteenth Amendment would give some "large measure of racial equality" to blacks. [FN137] Bork does not provide any history or citations to what he considered to be the historical data supporting his view of Brown, nor does he undertake any discussion of the beliefs or intent(s) of those who adopted the Fourteenth Amendment. However, he states that the "same men were not agreed about what the concept of racial equality requires" and that many had not "thought the matter through." [FN138] Who were these men Bork refers to? What was their "concept of racial equality"? What is a "concept of racial equality," and who defines and gives content to that idea? If those who adopted the Fourteenth Amendment did not agree or did not even think through the matter of segregation, and if the Court cannot "conceivably know how these long-dead men" would have resolved the public school segregation issue in 1954, [FN139] what makes Bork's analysis of Brown an originalist interpretation of the Fourteenth Amendment? If Bork's argument is correct, is he not outside the text and the history of the Fourteenth Amendment? If so, does it not follow that his interpretation of the amendment is by definition extratextual and beyond the original understanding?
In 1984, Bork stated that it "is necessary to establish the proposition that the framers' intentions . . . are the sole legitimate premise from which constitutional *252 analysis may proceed." [FN140] Subsequently, at a 1987 judicial conference, Bork stated:
[I]f we are to have judicial review, and if the Constitution is to be law, so that the judge does not freely impose his or her own values, then the only way to do that is to root that law in the intentions of the founders. There is no other source of legitimacy. There is no other way that we can say at least in extreme cases that the judge has gone off the reservation. [FN141] Bork returned to the original understanding and Brown in his book, The Tempting Of America. [FN142] Commenting on originalism and equal protection analysis, Bork wrote:
Original understanding avoids the problem of the level of generality in equal protection analysis by finding the level of generality that interpretation of the words, structure, and history of the Constitution fairly supports. This is a solution generally applicable to all constitutional provisions as to which historical evidence exists. There is, therefore, a form of constitutional decisionmaking that satisfies the requirement that principles be neutrally defined. [FN143] In another passage of his book, Bork, after quoting John Hart Ely on interpretivism, [FN144] states:
*253 In short, all that a judge committed to original understanding requires is that the text, structure and history of the Constitution provide him not with a conclusion but with a major premise. That major premise is a principle or stated value that the ratifiers wanted to protect against hostile legislation or executive action. The judge must then see whether that principle or value is threatened by the statute or action challenged in the case before him. The answer to that question provides his minor premise, and the conclusion follows. It does not follow without difficulty, and two judges equally devoted to the original purpose may disagree about the reach or application of the principle at stake and so arrive at different results, but that in no way distinguishes the task from the difficulties of applying any other legal writing.
This version of original understanding certainly does not mean that judges will invariably decide cases the way the men of the ratifying conventions would if they could be resurrected to sit as courts. Indeed, the various ratifying conventions would surely have split within themselves and with one another in the application of the principles they adopted to particular fact situations. That tells us nothing other than that the ratifiers were like other legislators. Any modern congressional majority would divide over particular applications of a statute its members had just enacted. That does not destroy the value of seeking the best understanding of the principle enacted in the case either of the statute or of the Constitution. [FN145] Bork's originalism presents several issues that warrant consideration. Under his analysis, a judge must identify or "select" a "major premise" and principle or value. As the major premise selection goes beyond literalism, strict intentionalism, and other forms of originalism, [FN146] Bork's originalism is one in which judges have discretion in determining what is, and what is not, a major premise. Judges also have discretion in assessing whether a challenged governmental action violates a constitutional or statutory provision because, in a judge's view, the action is not consistent with her chosen major premise. [FN147] It is significant that the discretion exercised in selecting a major premise cannot be exercised, and a judge's determinations and assessments of premises and interpretive principles cannot be made, without the judge making an inherently value-laden choice. [FN148] Further, Bork's search for the "best understanding" of a principle enacted in a constitutional or statutory provision [FN149] is certainly distinct from the search for the original understanding. The original understanding -- understood as discerning and applying the understanding of those who wrote a particular constitutional provision to the *254 subject at hand -- is not and cannot be the same as the best understanding, a formulation which implies that there are other (worst, better, not as good, plausible, etc.) understandings. The selection process leading to a best understanding has to contain some discretion and criteria for the judge as she looks at and sifts through plausible understandings before deciding on one as a best understanding of the Constitution.
Because Bork's originalist analysis recognizes major and minor premises and a best (as opposed to an original) understanding, what does Bork make of Brown? Brown was a "great and correct decision," Bork writes, "but it must be said in all candor that the decision was supported by a very weak opinion. These two facts, taken together, have caused an enormous amount of trouble in the law." [FN150] Bork pointed out three difficulties with the Court's decision. First, "it failed to deal with the fact that a number of Northern states had ratified the Fourteenth Amendment and had continued to segregate their public schools without even supposing there was any conflict between the two actions." [FN151] Thus, Bork argued, those who ratified the Fourteenth Amendment did not think that the amendment outlawed segregated education or segregation in any aspect of life.
If the ratifiers had intended segregation as the central meaning of the equal protection clause, it is impossible to see how later studies on the baleful psychological effects of segregation could change that meaning. Indeed, Plessy had recognized that segregation could have a psychological impact and found it essentially irrelevant. It is difficult to believe that those who ratified the Fourteenth Amendment and also passed or continued in force segregation laws did not similarly understand the psychological effects of what they did. They didn't care. [FN152] My reading of that passage leads me to conclude that Bork concedes, indeed admits, that those who ratified the Fourteenth Amendment knew that segregation was not to be affected or outlawed by that amendment.
Second, Bork thought that it was disingenuous to believe that Brown turned on social science studies about the preference of black children for black or white dolls, "which supposedly showed something about their self-esteem, which in turn supposedly was related to the presence or absence of legal segregation. . . . The real rationale for Brown was deeper, and the pretense that it was not cheapened a great moment in constitutional law." [FN153] Third, Bork asserted that although the Court's focus on the effects of segregation on the learning capacity of young children limited its principle to primary and secondary public education, the Court subsequently extended Brown to circumstances having nothing to do with education or the psychological vulnerability of children, such as segregated beaches, golf courses, parks, and courtrooms. "The real meaning of Brown, therefore, was far better *255 than its professed meaning." [FN154] Brown "is consistent with, indeed is compelled by, the original understanding of the [F]ourteenth [A]mendment's equal protection clause. The disastrous fact was that the Supreme Court did not think so." [FN155] Brown "must rest, if it is a correct decision, on the original understanding of the equal protection clause. . . . It is clear that it can be rested there." [FN156] Is it clear? This is Bork's originalist argument. He posits that we should suppose that Plessy correctly represented the original understanding of the Fourteenth Amendment, "that those who ratified it intended black equality, which they demonstrated by adopting the equal protection clause." [FN157] According to Bork, the ratifiers assumed that equality and state-compelled separation of the races were consistent, an assumption demonstrated by the fact that various state laws segregating the races were left in place. [FN158] Suppose, further, that the ratifiers had no objection to the psychological harm inflicted by segregation, Bork continued: "If those things are true, then it is impossible to square the opinion in Brown with the original understanding. It is, however, entirely possible to square the result in Brown with that understanding." [FN159] How can that be, given Bork's concession that the "framers and ratifiers of the Fourteenth Amendment did not intend to bring about social equality between the races and would not have cared if the failure to achieve such equality inflicted psychological wounds on blacks"? [FN160] Bork then argues that segregation was not the primary thrust of the Equal Protection Clause, that segregation is not mentioned in the clause, and that the debates on the Fourteenth Amendment do not suggest that the clause was enacting segregation. "The ratifiers probably assumed that segregation was consistent with equality but they were not addressing segregation. The text itself demonstrates that the equality under law was the primary goal." [FN161] Again, if all of this is true, why does Bork shy away from the conclusion compelled by his originalist analysis (i.e., that Brown was wrongly decided) and defend the Brown result? Bork submits that, by 1954, it was apparent that segregation rarely, if ever, produced equality and that, aside from any question of psychology, the physical facilities provided for African- Americans were not as good as those facilities provided for whites. [FN162] Thus, the Court was faced with a situation in which the courts would have to