Eric Segall on Originalism and Brown
At Vox, Eric Segall: Judicial originalism as myth. From the introduction:
This genuflection toward the original meaning of the Constitution is, however, at best misleading and at worst a sham. What the words of the document meant to the people living at the time is just one of many different factors judges use to decide constitutional cases. So-called original meaning almost never drives the results in litigated cases but instead is used by judges to justify results they reached on other grounds. As Judge Richard Posner has written, “there has never been a time when the courts of the United States behaved consistently in accordance with the ideal” described by originalists.
"that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color." [Quoting Strauder]
We also said:
"The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race -- the right to exemption from unfriendly legislation against them distinctively as colored -- exemption from legal discriminations, implying inferiority in civil society, Lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race." [again quoting Strauder]
It as said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.
Why is this not a fair reading of the Amendment's original meaning? It is consistent with the textual meaning; it adopts the reading given by the Court in the immediate post-ratification period; and it surely describes accurately the practical motivation and effect of the state law. And in any event, Harlan was much closer to the enactment than we are.
I am not sure which step of Justice Harlan's dissent Professor Segall thinks is incorrect. Was the Strauder Court wrong to say that the language of the Fourteenth Amendment meant "that the law in the States shall be the same for the black as for the white"? Was the law in Plessy "the same for the black as for the white"? Was Justice Harlan's wrong in concluding that the law was passed as a means of oppression of one race?
Professor Segall rests principally on the proposition that segregation was widely practiced and accepted in the post-ratification era. Assuming that to be correct, it is not decisive. The inquiry, to an original meaning originalist, is the meaning of the text. Post-ratification practice is evidence of original meaning, but it is not conclusive evidence. It may well have been that post-ratification governments were politically unable to live up to the promises of the Amendment (a point Harlan made in his dissent). After all, prior to Strauder, West Virginia (and other states) only allowed Whites to serve on juries, but Strauder rightly found that practice unconstitutional under the Amendment's text and purpose.
I'm not aware of any leading originalist judge or scholar who thinks Plessy was rightly decided (though perhaps there are some; Professor Segall does not cite any). So maybe he (and other nonoriginalists purporting to reach originalist conclusions on the matter) just aren't doing it right.
RELATED: In USA Today, Glenn Reynolds: A 'living Constitution' on the right? The left should be glad that Gorsuch is an originalist and not a conservative activist.
UPDATE: Apologies for spelling Professor Segall's name incorrectly in the initial post.