David Souter finally tells Americans to grow up

[04SCTLS]

It's Complicated

David Souter finally tells Americans to grow up.

By Dahlia LithwickPosted Wednesday, June 9, 2010, at 5:44 PM ET

http://www.slate.com/id/2256458/pagenum/all/#p2

David Souter

Almost two weeks ago, former Supreme Court Justice David Souter gave the commencement speech at Harvard, a speech that's been variously described by some of my favorite legal writers as a denunciation of "originalism," a defense of "living constitutionalism," and a suggestion that "judicial activism" is a game both liberals and conservatives can play. But the striking aspect of Souter's remarkable speech is that it rejected virtually all of these easy ideological labels and addressed itself to two much simpler questions: Is the meaning of the Constitution clear? And is the task of divining that meaning easy? These incisive questions themselves beg an even more pressing constitutional question: Why must justices first leave the bench before they can speak seriously about the importance of the court?

It's been tempting for court watchers to suggest that the single purpose of Souter's speech was to take out Antonin Scalia's alluring theory of originalism, but even that diminishes the force of what Souter was attempting to explore. He wasn't just using the opportunity to debunk what he called the "fair-reading model" of constitutional interpretation (which is quite different, although related, to the originalist approach). And he wasn't just using the speech to argue for evolving moral standards in judging, although he did that, too. It seems to me that Souter's decision to avoid all the hot-button words signals a much bigger project: He wants Americans to consider—in advance of yet another tedious confirmation hearing—the possibility that judging is really, really hard and only special people should get to do it.
Souter took pains to reject the idea that the plain meaning of the Constitution is always clear, lurking there "in the Constitution, waiting for a judge to read it fairly." We can all agree that much of the Constitution is not at all clear. (What does "cruel and unusual" mean?) But Souter went on to show that certain provisions of the document are in tension with others. "The Constitution is no simple contract," he explained, "not because it uses a certain amount of open-ended language, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, altogether, all at once."

Under such circumstances, justices can no more be neutral umpires—in Chief Justice John Roberts' famous formulation—than they can be dispassionate microcomputers. You can be the greatest reader of text in the world and the most profound diviner of linguistic meaning, but it still won't help you in any but the handful of very easy cases, which, as Souter correctly observed, "do not usually come to court, or at least the Supreme Court." That is precisely why, he added, "the fair-reading model has only a tenuous connection to reality." It describes a nonexistent universe in which all cases are easy and all the constitutional directives are perfectly clear.
Souter went on to describe two cases in which the result was not at all clear or obvious—the Pentagon Papers case from 1971 and Brown v. Board of Education in 1954. In the first case, he noted, two constitutional values were in direct tension, and there was no obviously right answer. In the second, constitutional values had evolved to the point that "separate but equal" was no longer defensible, even if the plain language of the 14th Amendment guarantee of "equal protection" had not changed. Neither of these two propositions seems surprising to most of us. Nobody truly believes the idea of mechanical, easy judging to be anything more than normative propaganda.
Souter's speech thus represents much more than an ode to a changing Constitution or a forceful admission that something that sounds suspiciously like "empathy" means that "judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own." Souter's words even transcend his own high-minded call to "keep the constitutional promises the nation has made." What Souter asked Americans to do in his Harvard speech is to live with ambiguity. To, in his words, acknowledge that there is a "basic human hunger for the certainty and control that the fair-reading model seems to promise," while recognizing, in Justice Oliver Wendell Holmes' formulation, that "certainty generally is illusion and repose is not our destiny." He is telling us to stop dreaming of oracular judges with perfect answers to simple constitutional questions. He is telling us, in other words, to grow up.
Souter's admonition that we should stop looking for infallible mommies and daddies on the bench differs only slightly from Sandra Day O'Connor's post-retirement crusade against judicial elections. Like Souter, O'Connor has used her time since departing the bench to urge upon the American people, as she argued recently, that judging is complex and that "the judiciary, unlike the legislative and the executive branches, is supposed to answer only to the law and the Constitution." O'Connor well understands that the American public seeks greater control over the judicial branch. But like Souter, she is trying to explain that there are costs to presenting the art of deciding cases as something that can be painted by the numbers. You have to wonder why it's only after they leave the court that justices are permitted to say that judging isn't simple. Is it some form of humility that requires sitting judges to downplay their intelligence or skills?
Contrast Souter's honesty to the nonsense you hear at judicial confirmation hearings, up to and including the chief justice's claim at his hearing that "umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules." Last June, at her own hearings, Sonia Sotomayor described her vision of a good judge as someone "who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law to the facts at hand." Easy, right? I mean, my 5-year-old can do that.
So, as we look forward toward Elena Kagan's confirmation hearings, the question isn't whether she will use the opportunity of her hearings to defend living constitutionalism or to debunk originalism. That is probably too freighted a discussion, and one that no progressive can possibly win in this day and age. The question I would ask is why it's so fashionable for nominees to suggest that the hard work of judging is simple; that the Constitution is no more complicated than the instructions for assembling an Ikea end table; and that the reason they are perfectly qualified for the job is that, well, they can read. What does it say about the court as an institution that everyone who goes through the interview process must downplay the difficulty of the job?
It's surely too much to ask that the modern confirmation process explore the complex work of balancing, in Justice Souter's recent words, a reliance on "reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people." The very notion that we could trust anyone to do all that is too frightening to contemplate. But could we at least ask that the nominee, and the senators, decline to insult our collective intelligence with the suggestion that judging is so easy, and the Constitution so crystal clear, that a second-year associate could do it.
It saddens me to think that it took Justice Souter 19 years of heavy constitutional lifting and departure from the court before he could turn to the American people and explain clearly that much as we might want judging to be easy, it never can be. It terrifies me even more to think that we've crafted a confirmation process in which the consistent message is that judging is so simple that any old bozo can do it. If we continue to believe that this is so, we will be on the road to confirming any old bozo that stumbles along.

 

[shagdrum]

Souter hardly have a record of intellectual consistency in constitutional interpretation. Is there a point you are trying to make with this?

 

[04SCTLS]

Souter hardly have a record of intellectual consistency in constitutional interpretation. Is there a point you are trying to make with this?

The constitution is purposely not clear so it can be interpreted contemporarily for the events of our times by judges who are living people.

 

[shagdrum]

The constitution is purposely not clear so it can be interpreted contemporarily for the events of our times by judges who are living people.

That doesn't seem to be what Souter is saying (though the article seems to be affirming something along those lines). What Souter seems to be saying that the Constitution is not so clear, in some areas, as to be easily interpreted. However, there is a lot of editorializing in that story by the author with quotes from Souter that are, at best, questionable in their support of the conclusions the author is drawing. The understanding of Originalism being used in that piece is a straw man. Weather that was the understanding Souter was conveying or simply the author's representation is unclear.

What standard do you think should be used in interpreting the Constitution?

Also, were do you get the idea that the Constitution is purposely not so clear as to be interpreted "contemporarily"? There are many who want to create that impression; obfuscate the clear meaning of the Constitution to allow them to inject their own social/political values into the Constitution. Slate often promotes that perspective.

 

[shagdrum]

It seems like the straw man of originalism in the first article may have in fact come from Souter himself.

David Souter, Jim Crow, and the Living Constitution
Damon W. Root

Former Supreme Court Justice David Souter gave a big commencement speech last week at Harvard University where he criticized originalism—the school of thought that says the Constitution should be read according to its original public meaning—for having “only a tenuous connection to reality.” According to liberal pundit E.J. Dionne, Souter’s speech proves that liberal champions of the “Living Constitution” now “have fighting words of their own.”

Fighting words, maybe. But accurate words? Not exactly.

Souter argued that originalism has nothing useful to say about the racial segregation imposed by the South’s Jim Crow regime, and claimed that it was only thanks to living constitutionalism that the Supreme Court eventually nullified the vile doctrine of “separate but equal.” Here’s the relevant portion of his commencement speech:

[Brown v. Board of Education] ended the era of separate-but-equal, whose paradigm was the decision in 1896 of the case called Plessy v. Ferguson, where the Supreme Court had held it was no violation of the equal protection guarantee to require black people to ride in a separate railroad car that was physically equal to the car for whites. One argument offered in Plessy was that the separate black car was a badge of inferiority, to which the court majority responded that if black people viewed it that way, the implication was merely a product of their own minds. Sixty years later, Brown held that a segregated school required for black children was inherently unequal.

For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision. Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional. But if Plessy was not wrong, how is it that Brown came out so differently?
​

Here’s the problem with Souter’s claims: The Plessy decision is wrong under an originalist reading of the Constitution. Originalism includes the original public meaning of the 14th Amendment, which commands: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Among those privileges or immunities is the right to economic liberty. Remember that the origins of the 14th Amendment lie in the anti-slavery politics of the Radical Republicans who drafted it and spearheaded its ratification. Their philosophy centered on a radically libertarian form of self-ownership, one that included both the right to armed self-defense and the right to liberty of contract. That philosophy was enshrined in the Constitution when the 14th Amendment was ratified in 1868.

In Plessy, the Supreme Court upheld a Louisiana law that forbid railroad companies from selling first-class tickets to black customers. That law was a blatant violation of economic liberty under the 14th Amendment and should have been struck down as such. That the Supreme Court failed to do so isn’t an indictment of originalism, it’s an indictment of the justices who failed to take the Constitution at its word.​

 

[shagdrum]

Doing a bit more research, it seems that this whole narrative of Souter's speech being an attack on Originalism may simply be hyperbole and spin on the part of WaPo liberal E.J. Dionne. That narrative has been picked up by liberal sources like HuffPo and Slate.

In looking through the actual text of the address, Souter doesn't seem to be talking about originalism (at least not accurately). The term "originalism" or other terms along those lines like "originalist", "textualist" or "constructionist" are not in the speech either. In fact chastising originalism would go against some of his prior opinions/dissents where he did employ an originalist perspective.

Weather Souter is setting up a straw man or not talking about Originalism at all is unclear. Regardless, it seems that the left is looking to make the speech about originalism.

 

[foxpaws]

In Plessy, the Supreme Court upheld a Louisiana law that forbid railroad companies from selling first-class tickets to black customers. That law was a blatant violation of economic liberty under the 14th Amendment and should have been struck down as such. That the Supreme Court failed to do so isn’t an indictment of originalism, it’s an indictment of the justices who failed to take the Constitution at its word.

Actually I thought Plessy just upheld different cars or areas for blacks. Railroad companies could sell first class tickets to blacks, or really any tickets to blacks, they just had to have a separate 'black only' car, or area of the car. It was the beginning of 'separate but equal'.

The 14th states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ​

So with Plessy the court didn't see that a separate, but equal railroad car, was going against the 14th. The black man in the Plessy case was able to enjoy the same type of railroad transportation as the whites, just in a different car. It took many years of societal study, and building up of evidence, before that case could be looked at again. Plessy happened pretty early in the era of Jim Crow laws... sometimes it just takes 'time and experience' before we know that something doesn't work.

On the surface, separate but equal looks to be fair. In fact, at Georgia Tech, this was taken to the extreme of black and whites got to sit in the same classroom, at the same time, with the same teacher, with the only difference being that the blacks had to sit in their own 'designated' area. Even this was found to have an effect on the quality of education of blacks. The real integration of blacks into the classroom is where you finally get 'equal' opportunity.

It took almost 60 years for various cases to be fostered by mostly black attorneys before Brown vs Board of Education, and Thurgood Marshall could finally bring a case to the Supreme Court that would overturn Plessy's 'separate but equal'.

Often cases are overturned after time because things are discovered. The court could only go by what seemed to be viable - why wouldn't having equal railroad cars for black and whites satisfy the 14th amendment? What was needed was evidence that this continued to foster a second class citizenship, that yes, equal but separate did deprive black's liberties.

However, I do like this part of the article...

He wants Americans to consider—in advance of yet another tedious confirmation hearing—the possibility that judging is really, really hard and only special people should get to do it.

I think that is a great argument - I don't want just 'anyone' sitting on the bench, I think it is really, really hard, and that there really are only a very few people in this country who should sit on the bench, and Souter is one of those few. Heck, I think Scalia is one of those few as well. I often don't agree with his decisions, but I can't argue that the man is amazingly smart when it comes to law and justice.

And I do think it interesting that Souter is speaking like this. Justices have a habit of fading away when they are off the bench, often because they are so old... But with Souter 'only' being 71, his view points regarding the bench might be pretty insightful the next few years.

 

[shagdrum]

Foxy, what is your point with the Plessy case? Does in counter anything pointed out in any of my posts, because if so, I must have missed it.

The Plessy ruling went decidedly against the Originalist approach. While the case is often used in this manner against originalism, those using it almost always conveniently forget about John Marshall Harlan dissent in the case.

In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. "Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. . .The arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds​

Harlan's dissent shows how Plessy was not at all consistent with the Constitution and belies the narrative Souter is drawing (and foxy is simply echoing). In fact, in many ways this is more a reflection of a "living constitution" approach because it shows justices reading their personal perception of society's sensibilities on this into their rulings over the clear meaning of the Constitution on this subject.

 

[foxpaws]

Foxy, what is your point with the Plessy case? Does in counter anything pointed out in any of my posts, because if so, I must have missed it.

The Plessy ruling went decidedly against the Originalist approach. While the case is often used in this manner against originalism, those using it almost always conveniently forget about John Marshall Harlan dissent in the case.

In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. "Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. . .The arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds​

Harlan's dissent shows how Plessy was not at all consistent with the Constitution and belies the narrative Souter is drawing (and foxy is simply echoing). In fact, in many ways this is more a reflection of a "living constitution" approach because it shows justices reading their personal perception of society's sensibilities on this into their rulings over the clear meaning of the Constitution on this subject.

No shag - Harlan's dissent assumed a badge of servitude if the races were separate. There was no proof at the time that there would be a 'class system' created by 'separate but equal'. And Harlan was the only dissenting voice on the court - it went 7 to 1. However, I will say that Harlan certainly changed his mind quickly - he was a former slave owner. I guess people can change their minds-180 degrees in fact...

But, mostly I wanted people to know that Plessy wasn't about...

In Plessy, the Supreme Court upheld a Louisiana law that forbid railroad companies from selling first-class tickets to black customers. That law was a blatant violation of economic liberty under the 14th Amendment and should have been struck down as such. That the Supreme Court failed to do so isn’t an indictment of originalism, it’s an indictment of the justices who failed to take the Constitution at its word.

It wasn't that 'cut and dry' like the little article you posted by Damon W. Root indicates that it is. There is a huge difference between denying access entirely to a first class car on the train, and allowing access to a first class car that is segregated. Root is framing Plessy incorrectly. It wasn't 'blatant' as he is claiming. It appeared to be in line with holding up rights for blacks. They still got to ride 'first class', they didn't pay more, they arrived at the same time as whites. It all appeared equal.

In the opinion, Brown wrote, "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

Today we see that as an 'of course it creates a badge of inferiority', but at the time it was hard to see how that could be the case. Two railroad cars, exactly the same, with same pricing structures, etc, shouldn't create a class system, just a separation of races.

Once again, it took time before blacks could prove that separate but equal was wrong. There are many court cases shag that over time have been struck down because we discover something 'new'. It isn't that the previous case was 'wrong' it was just handed down with less than all the information that would be available at a latter time.

At the time of Plessy, separate but equal seemed to be a viable, fair and equatable answer. As I said, on the surface it does appear to be, it took time to prove that it wasn't.

Since Plessy couldn't prove that separate but equal would foster a second class citizenship on blacks, the court had to go with what appeared to be correct - the lack of evidence hurt Plessy. As evidence built, it then created the correct atmosphere to go after Plessy with Brown vs Board of Education. The black community finally had evidence that supported their assertion that separate but equal did foster inequality. But once again, without evidence, separate but equal looks pretty 'fair', especially in 1896. The court was just getting to 'know' the 14th... and getting to know 'separate but equal'. It does take time shag for things to shake out sometimes, even in the court.

But, we finally have it right - no separation, no discrimination. But, you would allow that railroad to do the same thing again, well, actually shag, not only would you allow separate cars for the races, you would defend their right to place a 'white only' sign on the entire train...

Odd that you are even in this argument.

 

[shagdrum]

Again, Foxy, nothing in your little diatribe counters the main point behind my posts; the Plessy decision was not a reflection of an Originalist approach to constitutional interpretation, as is being inferred from Souter's speech. In fact, it was quite the opposite; a reflection on the "living constitution" approach. Simply repeating Souter's narrative doesn't chance that fact.

It is really telling that you will lower yourself to actually defending the unconstitutional legal fiction of "separate but equal" in your attempt to muddy the waters here. You really have no shame, do you.

 

[shagdrum]

It occurred to me that your whole approach here is to simply pick up on some minor point (in relation to the focus of this thread) and, however necessary, delegitimize the point as a means of delegitimizing the entire source and, by implication, the entire argument. The fact that the point you are raising doesn't counter the entire argument or even main point raised.

In fact, that focus on simply delegitimizing and ostricizing seems to be your only approach to debate here. Are you incapable of simply arguing the merits of your own position instead of simply focusing on dishonest and deceptive attempts to delegitimize, destabilize and ostracize opposing points of view? Or is postmodenist posturing the only approach to debate that you know?

 

[foxpaws]

Again, Foxy, nothing in your little diatribe counters the main point behind my posts; the Plessy decision was not a reflection of an Originalist approach to constitutional interpretation, as is being inferred from Souter's speech. In fact, it was quite the opposite; a reflection on the "living constitution" approach. Simply repeating Souter's narrative doesn't chance that fact.

It is really telling that you will lower yourself to actually defending the unconstitutional legal fiction of "separate but equal" in your attempt to muddy the waters here. You really have no shame, do you.

Well gosh shag -

I was trying to show people how Plessy was a sign of its time... and the fact that 'evidence' (wow what a concept shag-that a case might have been held on 'evidence') didn't show that Plessy was being treated as a 'second class citizen'. There wasn't enough evidence at that point in the old 'separate but equal' argument that would indicate that placing blacks in their own, equal railroad car is stepping on their rights.

The argument for separate but equal seemed sound. It took time for the black legal community to gather evidence to prove otherwise.

Evidence shag - something you harp on all the time. There wasn't any evidence that this created a class system. To blacks it seemed obvious after a short amount of time that it did, but if you were sitting in that all white car it might have taken some time for you to realize that it was enforcing caste.

Louisiana's state law requiring segregation was only 2 years old at the time Plessy tested it. There was no way there was enough evidence to show that segregation across the south would lead to stepping on the liberties of blacks.

And shag-however, you would argue that the train should be allowed to segregate or deny blacks-correct?

So, you actually don't believe what Harlan stated - in spite of your quoting him...
is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution
Note I deliberately left out... while they are on a public highway, because that is where the difference lies - the railroad approached it all wrong. Instead of saying the 'state made me do it' they should of just went with - we have the right of freedom of association, and all would be OK...

So, if the railroad decides to do it on its own, create cars just for minorities, it isn't a 'badge of servitude' huh shag - it is just fine under personal property rights for them to inflict that badge of servitude.

I was the one that stated we finally got it right - that segregation and discrimination everywhere is wrong. I am not defending Plessy, I was just explaining the case shag-and stating why the court arrived at its decision. Things were quite different in 1896, and as I said separate but equal was in its infancy, no one knew that it would be so wrong... there wasn't any real evidence at that time that would cause the court to strike down Plessy. It was wrong - but at the time, it appeared 'right'. Mostly evidenced by the overwhelming majority it had in the court, and that all the courts upheld it on the way to the supreme court. There wasn't any lack of 'originalism' in the decision, it was a lack of evidence.

I very much understand 'Originalist ' and using Plessy is a poor example in this case, because of the time frame, and the lack of evidence. The court had no way of knowing that separate but equal was anything but. The evidence wasn't in. In fact, in light of the previous 120 years, of which 90 were with slavery allowed under the constitution, this probably was fairly sound within that courts understanding. So, why don't you pick a better case shag - this one is pretty weak.... Know your enemy, pick your weapons accordingly. Poor choice shag. Find something that doesn't hinge on an amendment... Use something that deals with the bill of rights, something that is 'original', that is, if you are going to argue the case for 'originalism'.

Talk about wanting it both ways shag - either you are for discrimination or you aren't. I have always come down on the side of 'not' across the board. In your world however, servitude is a dish best served by the private sector.

 

[shagdrum]

Weather or not it, in any way, created a class system or could have been seen at the time as creating a class system is irrelevant to the focus of this thread. That is a discussion for another thread and only serves to redirect this thread. There are plenty of places other can go to read up on this and see the ruling (and the dissent) in full context (and considering the fact that you are distorting the context and focus of the case to fit your narrative, it would be wise to double check the facts of the case). If you want to discuss this, start another thread instead of hijacking this one.

Also, stop attempting to put words in my mouth and mischaracterize me as your larger text and the suppositions you draw from it clearly aims to do.

Are you trying to redirect this thread as some sort of attempt to ostracize me? Apparently postmodernist posturing is all you know.

 

[foxpaws]

Nope shag - I am showing you the errors of your ways - not only did you chose the wrong case - you really chose the wrong case. How silly of you to chose a case that deals directly with our 'bigot' thread without thinking of the consequences.

Shag - if you are really going into law you need to watch out for the sink holes, because you are sinking quickly here.

So, do you or don't you think that creating separate cars on a private railroad system created 'servitude'? That is what is key in our bigot thread shag. That private property segregation/discrimination can create a caste system. Here you are arguing it does, on the other thread you are arguing it doesn't.

I have remained consistent - it does. I am hook line and sinker for Title II. Have never varied, have never changed.

Which one shag?

Odd that the 'postmodernist' is the one that is consistent, and the one that constantly labels will now have to shimmy his way out of this... Perhaps you are really the one we need to label shag -

Sorry '04 I have wandered more than a bit - but I just couldn't resist with the opening that shag gave me...

 

[shagdrum]

Nope shag - I am showing you the errors of your ways - not only did you chose the wrong case - you really chose the wrong case. How silly of you to chose a case that deals directly with our 'bigot' thread without thinking of the consequences.

I didn't pick anything. Souter did.

It is clear that you are attempting to hijack this thread so you can "show me the error of my ways" by spinning the Plessy case.

If you want this discussion, start another thread. Please show the civility to stop hijacking this thread.

 

[shagdrum]

Back to the topic at hand, here is an article from 2005 that touches on Souter's argument.

Brown and Originalism
There's more than one way to get it right
By M. Edward Whelan III
Posted: Wednesday, May 11, 2005

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. 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.

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? "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, 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.

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.

If Talbot found it "hard to see an originalist justification" for ending state-sponsored segregation, it's because she wasn't looking in the right places. As early as 1880 — a mere twelve years after ratification of the Fourteenth Amendment — the Supreme Court in Strauder v. West Virginia read the Fourteenth Amendment as "declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color."

Even in its notorious 1896 ruling in Plessy v. Ferguson, the majority stated that the "object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law." But then, in the sort of freewheeling non-originalist excursion that advocates of the phony "living Constitution" have come to celebrate, the majority looked to the mystery of the universe to assert that "in the nature of things" the Fourteenth Amendment "could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality." By contrast, Justice Harlan's celebrated dissent quoted Strauder and declared that the purpose of the Fourteenth Amendment was to "remove[] the race line from our governmental systems."

Further, as McConnell's law-review article shows, in the years immediately following ratification of the Fourteenth Amendment, as Congress acted to enact legislation enforcing the requirements of the Fourteenth Amendment, a substantial majority of both houses of Congress repeatedly voted to abolish segregation in the public schools. Although filibuster tactics and other procedural obstacles prevented ultimate passage of legislation abolishing segregated schools, McConnell demonstrates that these votes provide powerful evidence that the original understanding of the Fourteenth Amendment was that segregated public schools were unconstitutional.

Under an alternative originalist approach, as Judge Bork and others have argued, even if the ratifiers of the Fourteenth Amendment assumed that segregated public schools were consistent with equality, objective comparisons of facilities and resources had, by the time of Brown, long since disproved this assumption. Under this approach, an originalist opinion in Brown would therefore have concluded that the Fourteenth Amendment's clear purpose of establishing racial equality under the law required an end to segregated schooling.

The legitimacy of originalism as the only proper method (or class of methods) of constitutional interpretation inheres in the very nature of the Constitution as law and does not depend on the results that originalism yields. Originalists will have disputes among themselves. But those who seek to discredit originalism by hiding behind Brown — the same people, by and large, who absurdly contend that the text of the Fourteenth Amendment stating that no state shall "deprive any person of life, liberty, or property, without due process of law" somehow should be twisted to guarantee rights to abortion and same-sex marriage — should hardly be presumed sound arbiters of how originalism should apply. ​