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10/26/2015

Can the Living Consitution Produce Brown?
Chris Green

Mike Ramsey comments below on Mike Dorf's latest run at the argumentum-ad-non-Brownum attack on originalism. It is not enough, Dorf insists, that originalism include stare decisis, so that it would not, even if adopted, imperil Brown. Originalists must, Dorf says, show how their theory acutally justifies Brown.

As Dorf notes, originalists have done this at great length, beginning most prominently with Judge McConnell's famous 1995 piece focusing on the Republican's use of the Privileges or Immunities Clause in early drafts of the Civil Rights Act of 1875. As Dorf notes, Calabresi and Perl offer another effort from 2013. For my work from 2006, see the second half of this; for my much broader 2015 defense of the antidiscrimination reading of Privileges or Immunities Clause, with consideration of Brown at the end, see here. (Contrary to Mike Ramsey's suggestion, by the way, Harlan's dissent in Plessy, like his dissent in the Civil Rights Cases, deploys the language of the Privileges or Immunities Clause rather than that of the Equal Protection Clause. See here at 260-64.)

Dorf dismisses these attempts by appealing (without citation) to historians' authority and then insisting that the real debate is between living constitution and a Raoul-Berger-style specific-expected-applications strawman. On the latter point, see Mitch Berman, a non-originalist who insists on fighting stronger opponents than that, here at 385-89.

Independent of these historical and specific-expected-applications-strawman points, my reaction is in the same vein as Larry Solum, who presses Dorf with several questions about the ability of different theories to justify Brown.  Whether or not originalism works as a Brown-producing factory, how precisely does non-originalism perform that (purportedly critical) task? Dorf tells us that he likes Brown, and that seems to be enough as an interpretive matter.  The current centrality of Brown in our legal culture could not have worked, of course, as an argument in 1954. Once that culture is established, it offers a reason not to overrule Brown, perhaps, but that is just the same level of credit which Dorf rightly says isn't worth much when claimed by an originalist.

I made just this complaint against Jed Rubenfeld in page 623 of my 2006 piece, comparing the merits of a paradigm-case-based living constitution with my textualist form of originalism (the Fregean "Theory of Original Sinn," a label which unfortunately has not caught on):

Rubenfeld simply asserts his preference for the principles that he likes, and which would support Brown. But the Theory of Original Sinn offers the materials for a reason why those principles are good ones as an interpretive matter. Because the Theory of Original Sinn avoids resting constitutional interpretation on the mere ipse dixit of later interpreters, it is a better candidate for offering an actual normative defense of Brown, rather than a pledge of adherence to it.

Let's try to translate this point into Dorf's metaphor.  Dorf compares non-originalists and originalists to competing builders. The originalist says he might not be able to build the house of Brown, but at least he won't tear it down. We shouldn't use such a builder, Dorf says. But to say that Brown is a brute first principle not justified by anything outside itself, as Steven Sachs suggests (see p. 2277) on behalf of his interlocutors, an offer apparently accepted by Dorf, is very different from saying that it was produced (i.e., justified) by a non-originalist constitutional theory. The non-originalist claims, not that he built the house of Brown--i.e., that his interpretive theory can justify Brown--but that the house built (justifies) itself. The originalist on Dorf's account wants credit for not tearing down a house, but the non-originalist wants credit for building a house that actually built itself. Neither deserves to place a "built by" sign in front of Brown.

Update: I had not seen it when I wrote the post above, but Dorf responds to Solum here, referring to Ely's discrete-and-insular-minorities approach and to interpretive pluralism. I'm not sure Ely's theory really counts as an interpretive theory as much as a theory of the Equal Protection Clause which would have to be separately justified. Ely insists on the existence of a textual and historical hook for his theory, rather than just its normative desirability as such. Also, since, as Dorf notes, Ely's view condemns Roe, it does not seem that Dorf could accept it.

Dorf says that Brown engages in moral reasoning. I don't see it--there are references to new psychological data which original-meaning devotees can use themselves, but no analysis of normative considerations like justice or goodness or propriety than I can see. Even if Brown is actually pluralist, though, that does not mean that pluralism, as such, supports Brown. To interpret Brown's footnote 11 as a moral argument is to interpret it as a pretty bad moral argument. If we are trying to understand Brown sympathetically and to justify it the best we can, far better to read footnote 11 as a psychological minor premise in tandem with a Strauderian "no implications of inferiority" major premise. But that's perfectly consistent with viewing original meaning as binding.