« Jacob Weinrib: What is Purposive Interpretation?
Michael Ramsey
| Main | Eric Segall on Originalism and the Affirmative Action Cases
Michael Ramsey »


Christopher Schmidt: Brown, History, and the Fourteenth Amendment
Michael Ramsey

Christopher W. Schmidt (Chicago-Kent College of Law) has posted Brown, History, and the Fourteenth Amendment (Notre Dame Law Review, Vol. 97, No. 4, 2022) (34 pages) on SSRN.  Here is the abstract:

Legal scholars and historians in recent years have sought to elevate Reconstruction to the stature of a “second Founding,” according it the same careful inquiry and legitimating function as the first. Their work marks the latest iteration of a decades-long campaign to displace the far more dismissive attitude toward Reconstruction that permeated historical scholarship and legal opinions in the first half of the twentieth century. In this Article, I present the flurry of engagement with the history of the Fourteenth Amendment during the litigation of Brown v. Board of Education (1954) as a key transition point in how historians and legal scholars have approached the constitutional history of Reconstruction. I highlight in particular the efforts of the lawyers for the NAACP, who advocated a reading of the Equal Protection Clause that most scholars at the time believed conflicted with the Fourteenth Amendment’s original meaning. With the aid of a group of historians sympathetic to their cause, the NAACP lawyers prepared a brief that presented a bold (if often tendentious) revisionist history of the Fourteenth Amendment that advanced an originalist justification for striking down segregation laws. The Supreme Court did not accept the NAACP’s reading of history; in his Brown opinion, Chief Justice Earl Warren concluded the historical record was “inconclusive” on the question of school segregation. Yet the basic assumption about Reconstruction history on which the NAACP legal brief turned—that the aspirations of the most egalitarian voices of the day deserve special weight in assessing the meaning of the Reconstruction amendments—has today become a core tenet of legal and historical scholarship.

Via Dan Ernst at Legal History Blog, who adds an interesting postscript.

Perhaps this is too cynical, but it seems to me there are reasons, unrelated to the merits. that the Court rejected the NAACP's conclusions.  A number of the the Justices were heavily invested in the idea that originalism was a defective approach.  Justice Jackson had his famously snide comment, concurring two years earlier in Youngstown Sheet and Tube v. Sawyer, about how unhelpful founding-era materials were.  Justices Frankfurter and Douglas (in particular) were committed to the New Deal revolution that abandoned meaningful originalist enumerated powers limits on Congress.  Chief Justice Warren was a politician who (one may presume) had a politician's view of how to resolve policy disputes.  And above all, when the Court rejected the original meaning and ruled against segregation anyway, it was emphatically the Court's decision to do so.  For this reason, Brown has been celebrated as a triumph of the Warren Court, not as a triumph of the reconstruction Congress.  So the Justices had powerful incentives not to rest their result on original meaning, even if they could have.