The originalist problem with Brown v. Board (reply to Solum, part 4)

Note: this is the fourth in a series of five blog posts responding to Larry Solum’s defense of public meaning originalism.

At some point, defenders of orginalism (like our friend and colleague Larry Solum) must contend with or explain away Brown v. Board of Education, the most famous “Living Constitution” decision in U.S. Supreme Court history. In Brown, the Court concluded that the doctrine of “separate but equal” has no place in contemporary public education, effectively overruling the leading equal protection case of Plessy v. Ferguson. The problem for an originalist, however, is that he must conclude that Brown v. Board was wrongly decided. (After all, the Fourteenth Amendment was enacted in 1868, when segregation in public places was the norm, so the decision in Plessy v. Ferguson is probably far more consistent with the original public meaning of the equal protection clause than the decision in Brown is.)  For his part, Professor Solum (like most other constitutional originalists) actually argues that public meaning originalism is in no way inconsistent with Brown v. Board; he even argues that any claim to the contrary is a myth (Myth #3). But this claim is pure bullshit, and it’s high time he be called out on it. In our view, the problem with Brown is not that it departs from orginalism. No, the problem with Brown is the decision itself. It was based on shoddy social science, not law. (See, by way of example, Contempt and Pity by Daryl M. Scott.) Although the Court made an important symbolic decision, it lacked any real power to enforce its own judgment. (Or as the headline below notes: “Date to end practice not set.”)

Image result for brown v board

Courtesy of the Living Constitution.

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