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03/23/2021

Calvin TerBeek on Originalism after Brown v. Board of Education [Updated]
Michael Ramsey

In the American Political Science Review, Calvin TerBeek (Chicago): “Clocks Must Always Be Turned Back”: Brown v. Board of Education and the Racial Origins of Constitutional Originalism.  Here is the abstract:

The Republican Party has adopted constitutional “originalism” as its touchstone. Existing accounts of this development tell either a teleological story, with legal academics as the progenitors, or deracialized accounts of conservatives arguing first principles. Exploiting untapped archival data, this paper argues otherwise. Empirically, the paper shows that the realigning GOP’s originalism grew directly out of political resistance to Brown v. Board of Education by conservative governing elites, intellectuals, and activists in the 1950s and 1960s. Building on this updated empirical understanding, the theoretical claim is that ideologically charged elite legal academics and attorneys in Departments of Justice serve more of a legitimating rather than an originating role for American constitutional politics upon a long coalition’s electoral success. Finally, by showing the importance of race to constitutional conservatism’s development, this article posits that the received understanding of a “three-corner stool” of social, economic, and foreign policy conservatism needs revision.

And from the conclusion:

This article argues that the modern GOP’s constitutional “originalism” grew directly out of resistance to Brown. Once elite academic lawyers legitimized originalism as a potential jurisprudential theory, party-in-government elites such as Attorney General Meese could claim it, and Bork’s article (saving Brown via an invented “juridical rule”), as setting forth an apolitical search for correct constitutional answers. More than that, as this constitutional ideology developed in the post-Reagan years with the sustained help of the Federalist Society and affiliated legal academics, conservatives rewrote their own history. This mythology not only had (and has) the virtue of providing a professional claim for conservative legal elites—these were (and are) academic arguments with the demand to be treated as such (Teles 2008)—they also provided the benefit of being able to erase the uncomfortable racial origins of modern originalism. The empirical purpose of this article has been to recover those origins.

Theoretically, one case study has limited reach. The theory is likely time bound. Built into it is an assumption of the clear distinction and division of labor between legal and political elites, an expectation that may not apply to the nineteenth century’s “state of courts and parties” (Skowronek 1982). The clearest comparison is to ask whether the Progressives-cum-New Dealers’ “living constitutionalism” follows the same historical pattern or if there are critical differences. An empirical extension of the theory, too, might examine how constitutional ideologies redevelop and expand (or contract) upon institutionalization in the Department of Justice and the courts. Finally, it may be time to retire the deracialized “three-corner” stool accounts of postwar (constitutional) conservatism’s development. It is not that race is all important, but it is to say that race is as important.

UPDATE:  Eric Segall comments here, at Dorf on Law.