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Must Originalism Produce the Result in Brown? (Updated)
Michael Ramsey

In an important and interesting post, Michael Dorf says yes: 

A relatively small number of constitutional decisions are so central to our constitutional culture that any interpretive methodology that fails to produce them is, ipso facto, improper. We can disagree over how many such decisions there are but if there is anything on the list, it's Brown [v. Board of Education]. ... Yet, Brown is at least a prima facie problem for originalists because the framers and ratifiers of the Fourteenth Amendment appeared to accept de jure segregation.

He goes on to argue that it's not enough for originalists to say Brown would be preserved from the modern application of originalism by stare decisis:

The problem for originalism is not that adoption of originalism would result in the reinstatement of Jim Crow. The very sacrosanctity of Brown reflects the fact that--despite ongoing racial inequality across multiple dimensions--no serious figure in American public life advocates a return to Jim Crow.

The problem that Brown and/or other sacrosanct precedents pose is not one of preserving those precedents but of failing a test. The process of deciding upon the "correct" interpretive methodology proceeds, like many intellectual tasks, via a reasoning process that goes back and forth between general principles and concrete applications until one reaches reflective equilibrium. But if Brown and/or some other precedents are right "because Brown" and/or "because X, Y, and/or Z," that means that any interpretive approach that is acceptable must actually produce Brown and/or the other precedents. Preserving sacrosanct precedents is not enough. Indeed, it's not the point of the exercise at all.

Larry Solum (Legal Theory Blog) and Asher Steinberg (Narrowest Grounds) have extensive responses.

Among other points, Solum highlights the fact that no theory of interpretation guarantees the result in Brown

... Failing Dorf's test is only a vice of originalism if there are alternative methodologies that satisfy the test.  

This point is particularly important because it is quite clear that many of the major alternatives to originalism do not as a matter of necessity produce the outcome in Brown.  Consider two important forms of nonoriginalism: (1) common law constitutionalism (e.g. as defended by David Strauss) and (2) the multiple-modalities or pluralist view (e.g. as defended by Phillip Bobbitt). 

Common-law constitutionalism as an interpretive methodology is consistent with many possible outcomes in Brown; indeed, it seems most consistent with a more gradualist approach that would not have overruled Plessy but which made it more difficult to meet the separate but equal test.  

Bobbitt's theory is an even clearer case.  Let me stipulate an altered version of the modalities: (1) text, (2) historical practice, (3) constitutional structure, (4) practicality, and (5) constitutional values.  (I know that is not Bobbitt's list.)  We need to assume arguendo that text does not favor Brown: if the public meaning of the text leads to Brown then Dorf's objection doesn't get off the ground to start with.  Historical practice seems to disfavor Brown.  Constitutional structure seems somewhat indeterminate, although one might make structural arguments on both sides.  Practicality did not favor Brown.  Of course, the constitutional value of equality does favor Brown (and let's assume that there are no contrary constitutional value arguments).  It seems clear that the complex argumentative practice of constitutional law as limited by the permissible modalities, does not guarantee Brown.

Steinberg goes further, arguing (persuasively, in my view) that originalism need not produce the Brown outcome to be a viable interpretive theory: 

It's obviously the case that Brown was an immensely welfare-enhancing and virtuous decision, because it helped end a horrible evil.  But is any immensely welfare-enhancing and virtuous decision sacrosanct, and must a good interpretive methodology be capable of generating certain decisions that generate immensely welfare-enhancing social change?  What's wrong with acknowledging that the Constitution just doesn't say certain things we'd like it to say?  

For example, slavery was an even greater evil than segregation.  The Constitution, however, permitted slavery until it was amended to forbid it.  In a counterfactual world where the Thirteenth Amendment was never ratified, we could imagine a non-originalist decision that read the Constitution to ban slavery.  Would we say that originalism was defective because it couldn't produce such a decision?  I think not.  It doesn't follow from the immense virtue of some social/legal change that the Constitution must be capable, in its current unamended state, of generating that change by means of judicial review.  It only follows that it is morally imperative that the change occur by some means, which certainly need not be judicial.  Further, I would think that this moral imperative runs most directly to political branches that can change the law, rather than to courts interpreting the old law they're stuck with, which may well be flawed from a moral perspective.  That is, there was obviously a moral imperative in 1954 to pass laws ending segregation, or to amend the Constitution to do so, which comes to the same thing.  But was there really a moral imperative, failing those developments, to read a constitutional provision enacted in 1866 to ban segregation?  Perhaps if segregation was so popular that Brown was the only way to end it, but I doubt that's the case; rather, to crudely simplify things, Brown only was enforced once segregation became unpopular enough for political actors to enforce Brown

My thoughts are twofold:

(1)  This is a bit of an academic exercise.  In my view, originalism (of the modern variety) very plausibly produces the result in Brown.  While the basic meaning of "equal protection of the laws" is a bit ambiguous, one can surely read it as requiring (among other things) equal treatment  by the laws. A number of prominent originalists do not read it that way, but on the other hand that seems to be the way post-ratification Justices read it, in Strauder v. West Virginia, Yick Wo v. Hopkins, and in dissent in Plessy v. Ferguson.  It seems as good a reading of the plain text as any other, and contrary views rely on particular contemporaneous readings that may or may not have been representative.  And if one accepts the "equal treatment" reading of the text, at minimum the actual practice of Jim Crow, which was manifestly unequal in all respects, is surely unconstitutional.  (Whether an actual regime of separate-but-equal would be constitutional is another academic exercise, because in the cultural reality of the South there was not and could not ever have been such a thing; for what it's worth I think even if actually equal facilities could ever have been achieved, racial divisions would still be invalid).

Professor Dorf's implications to the contrary rest on the proposition that the framers and ratifiers of the Fourteenth Amendment likely did not intend to ban segregation.  Whether or not that's true, I think it is not decisive.  Dorf seems still to be operating under an old-style "original intent" originalism, wherein we try to guess what particular people would have thought when confronted with the particular question.  As is well known, modern originalism more commonly focuses on original meaning.  This is an example of where the difference in methodology  matters.  The modern originalist's question is: what did "equal protection of the laws" mean?  It's relevant, but not conclusive, that people at the time didn't think the Fourteenth Amendment prohibited segregation (if that's true).  To the contrary, for modern originalists, the original meaning of the enacted phrase might well ban segregation even if people generally did not realize that, or chose not to think about it.  To pick a prominent example, I'm confident that Justice Scalia thinks the original meaning of the Fourteenth Amendment bans segregation irrespective of what particular people at the time of enactment thought it would do.

So in sum I don't think (contrary to Dorf's implications) originalists need to be unduly concerned about Brown.  An originalist Brown would have been written very differently, but it would likely have reached the same result.  See Plessy v. Ferguson (Harlan, J., dissenting).  True, I can't say that it necessarily  would have reached that result, but as Larry Solum says, that's an unreasonably high standard: no theory of judicial practice would necessarily lead to the Brown result.

(2) Nonetheless, I'm a professor, so I love academic exercises, and so I won't fight Professor Dorf's hypothetical.  Let's assume originalism, fairly applied, could not produce Brown.  Does that automatically disqualify originalism as a theory of interpretation?

Here I agree with Asher Steinberg.  Any theory of judicial practice that objectively constrains what judges may do must contemplate a situation in which judges cannot remedy a great moral evil. To be sure, we could have a theory of judicial practice that allows judges to reach any result they want, and that would never produce this dilemma (assuming we had the right judges).  But in that situation, the judicial practice is essentially non-interpretive; that is, it cannot turn on anything actually contained in the Constitution.  To amplify Steinberg's points, suppose the Fourteenth Amendment had never been ratified: would Dorf nonetheless think that Brown should come out as it did?  

I can't see how he has any satisfactory answer to this question.  If his answer is that Brown would come out the other way, then his theory of interpretation (whatever it may be) has the same flaw as originalism.  If his answer is that Brown would still come out the same way (because it has to!), then his theory of judicial practice is not really interpretation at all, but free-ranging judicial power.  And while there are, in my view, some very respectable arguments for free-ranging judicial power, there are surely drawbacks as well.  The benefits (getting the result in Brown) must be weighed against the costs.  Reasonable people may disagree, but the answer is (at best) not obvious.  And if the answer isn't obvious, then it's not a conclusive argument against originalism.

As a final thought, it's possible (if you're not persuaded by the foregoing) that originalism has a "Jeffersonian" escape valve.  Recall that Thomas Jefferson famously said, in the context of the Louisiana Purchase, that the President's duty to the Constitution was not his highest, and sometimes the Constitution might need to be violated for a greater good (with the President prepared to pay the price if Congress and the people did not agree).  Perhaps a judge's duty to the Constitution's original meaning is similarly qualified, thus allowing extaordinary deviation in the case of a great moral evil such as segregation.

As a result, I think Professor Dorf presents a false dichotomy: either originalism must always be followed, even at the cost of great moral evil, or it must not be followed even in ordinary cases.  To the contrary, even if I thought that originalism could not produce the result in Brown, and even if I thought judges were under a moral imperative to produce the result in Brown regardless of what the Constitution said about it, I still would not be obliged to think that judges should disregard the Constitution's original meaning on more mundane questions such as, for example, the scope of the President's recess appointments power or the ability of the phrase "the Legislature" to include something that is manifestly not the legislature.

UPDATE: Professor Dorf has additional comments in response to Professor Solum's post here. Solum has further extended commentary: Dorf on Public Meaning Originalism: Clarifying the Nature of the Debate.  From the introduction:

But Dorf's original post and his new post provide a wonderful opportunity to clarify some of the issues that make repeated appearances in debates about originalism.  This post addresses different aspects of Dorf's original post which discusses "Semantic Originalism" and the ongoing debate over how to carve the constitutional theory space using categories like "originalism," "nonoriginalism," and "living constitutionalism."  Although I will be using Dorf's original post as a point of departure, this post is not directed at Dorf in particular--instead I am trying to clarify the nature of contemporary debates over originalism, nonoriginalism, and living constitutionalism.

He makes a series of excellent points but I especially like this one (from near the end):

... There is room for argument about how we should use the word "originalism," but the there is extensive evidence for the notion that originalism is a family of constitutional theories mostly (but not completely) unified by fixation and constraint.  One could argue about the precise dividing line: I have argued for "constraint as consistency"--constitutional practice must be consistent with the original meaning of the text, but I can imagine different formulations that would capture most of the usage.  But any approach that captures most or almost all of the usage would seem to have an advantage over the proposal to limit the term "originalism" to expected applications originalism, a view disavowed by almost all originalist theorists and by the major originalist judges--recognizing that the evidentiary use of expected applications is acceptable to almost all contemporary originalists as well.

There is another problem with Dorf's definition of originalism.  The theory that the meaning of the constitutional text is constituted by original expectations about originalism is not a coherent theory.  It runs into the objections that prompted the shift to public meaning in the first place.  Original expectations are likely to be inconsistent, because different framers, ratifiers, or members of the public had different expectations about applications.  And the original expectations will quickly run out--since there will be many topics that were not foreseen and hence where there are no original expectations.  I could go on, but the important point is that we should be wary about any attempt by opponents of a theory to define the theory in a way that makes the theory obviously false but does not capture the way the theory is developed by those who self identify as proponents of the theory.  Definitional moves of that kind are likely to be misleading and to confuse rather than clarify the theoretical issues.