Originialism

Edward Whelan wrote on National Review Online The Left invokes the Orwellian euphemism of the "living Constitution" as it promotes and applauds lawless judicial decisions, like Roe v. Wade, that have no conceivable basis in the text or structure of the real Constitution. The "metastasizing Constitution" would be a far more honest moniker.

I like that. It shows how cancerous the judiciary has become.

For the real living Constitution — the Constitution that came to life in 1789 and that grew to full fruition with the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments in the aftermath of the Civil War — is suffering from foreign cells metastasizing in its vital organs. The only means of restoring its health is a vigorous dose of originalist medicine.

Sounds like a good idea to me.

The Left's "killer" argument against an originalist reading of the Constitution is that adherence to the original meaning of the Fourteenth Amendment purportedly would not have yielded the just result — the end to the evil of segregated public schools — mandated by the Supreme Court's landmark 1954 ruling in Brown v. Board of Education. Margaret Talbot's interesting but flawed profile of Justice Scalia and originalism in a recent issue of the New Yorker (which I wrote about here) is typical: The only "way to get to Brown," she asserts, is "to embrace the 'living Constitution.' " Why's that? "[I]t's hard to see an originalist justification" for Brown, since, she claims, the "same Congress that passed the Fourteenth Amendment segregated Washington schools." Justice Scalia "sometimes acknowledges as much, saying that a faulty — that is, a non-originalist — method can occasionally produce good results, a Scalian variation on 'Even a broken watch is right twice a day.' " And further, she tells us, liberal legal scholar Cass Sunstein has declared that a "doctrinaire originalist" would reject Brown. Case closed. No need for further discussion.

But wait: Every one of Talbot's assertions is off the mark. First, the 37th Congress created segregated public schools for black children in D.C. in 1862

Were blacks and whites attending integrated schools prior to that, or did the 37th Congress help black children by creating a school for them, whether segregated or not?

, but it was a later, different Congress — the 39th — that in 1866 proposed the Fourteenth Amendment, which was ratified in 1868. As the brilliant scholar (and now tenth-circuit judge) Michael McConnell explains in his 1995 Virginia Law Review article "Originalism and the Desegregation Decisions": "At no time after the Fourteenth Amendment did Congress vote in favor of segregated schools in the District [of Columbia] (although Congress appropriated money for the segregated schools that already existed)." In addition, the restrictions of the Fourteenth Amendment apply only to states, not to Congress, so congressional action with respect to D.C. schools provides a shaky foundation for any inference as to the contemporaneous understanding of the Fourteenth Amendment.

Second, what Talbot characterizes as an acknowledgment by Justice Scalia is no such thing. To make the obvious point that non-originalist decisions — that is, judges doing whatever they want — can produce good results in no way implies that originalism would not yield those same results. To use Talbot's analogy: That a broken clock is right twice a day doesn't mean a working clock is wrong twice a day.

Good point.

Third, just as one may rightly be suspicious when liberals instruct conservatives on what "genuine" conservatives would do, one need not accept Cass Sunstein as the final word on how an originalist would decide Brown.

Paul @PowerLine blogged Those who advocate a "living constitution" can reach the Brown result too (or not). Judges doing whatever they want can reach either correct or incorrect results. Indeed, Whelan reminds us, "even a broken watch is right twice a day."

In general, the Supreme Court has been getting more mileage than it deserves out of its decision in Brown. To its credit, the Supreme Court got on the right side of the civil rights issue about ten years before Congress did. Congress was hampered in this regard by the racist wing of the Democratic party and its use of the filibuster, which in those days could be sustained by one-third of the Senate.

Orrin Judd blogged From a stanpoint of what was best for the plain tiffs, Brown was probably argued and decided wrong anyway. It would have been far more empowering to simply insist on the Equal side of the Separate but Equal equation. Requiring segregated districts to spend as much per pupil in black schools as white could have been a real boon.