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03/14/2017

More from Eric Segall on Brown and Originalism
Michael Ramsey

Regarding my earlier post on his Vox essay, Eric Segall writes:

I think it very likely that the Strauder majority was correct and Harlan's dissent in Plessy correct as an original matter but that Brown was still wrong as an original matter. I think the best reading of history and text is that much formal discrimination against Blacks was outlawed but not all including school segregation given the widespread practices at the time. More importantly, if the question is close as a matter of history, then absent a presumption of constitutionality, an originalist method loses all its benefits (like constraint). Given that presumption, and the longstanding tradition of segregated schools, plus the vagueness of the text, Brown can't be anything other than a living constitution decision. FWIW, I think Originalists would be better off, and more honest, just saying no theory is perfect, and Brown is an exception to an otherwise reasonable theory.

My reaction is that these are interesting points worthy of further thought.  I had not really considered the idea that both Plessy and Brown might be wrong as an original matter (in my partial defense, it's not my area of expertise).  But on an initial consideration, I'm unsure how that result could be derived from the words of the Fourteenth Amendment (as opposed to post-ratification practices).  Professor Segall and I may simply disagree on how much relative weight to give text and post-ratification practice.