Eric Segall on Originalism and Brown
Michael Ramsey

There are strong reasons why judges have never consistently used originalism to decide hard cases. For one thing, if the original meaning of the framers of either the original Constitution or the Reconstruction amendments were taken seriously by today’s judges, we would live in a much different and much worse society. Segregated schools under the law and official governmental discrimination against women, gays, and lesbians would be permissible.

 

And more on Brown:

 

Criticism of Brown today would make any federal court nominee toxic and unconfirmable, so originalists have had to come up with remarkably contorted arguments to escape this obvious conclusion. Some, like Stanford’s Michael McConnell, have made unpersuasive arguments that the people living in 1868, when the Fourteenth Amendment was passed, and shortly thereafter, would have thought segregated schools to be illegal. (McConnell, strangely, places special emphasis on the debates leading up to the Civil Rights Act of 1875, highlighting anti-segregationist arguments — and downplaying the widespread segregation of schools in 1868.)

 

Professor Segall's implication, then, is that Plessy v. Ferguson (allowing segregation in railroad cars) was rightly decided at time, at least as a matter of original meaning.  This is not my area of expertise, but I think it as plausible (indeed, more so) that the nonoriginalist majority in Plessy got it wrong and that the original meaning of the Fourteenth Amendment was better captured by the Court in Strauder v. West Virginia (decided in 1880, only 12 years after ratification) and applied by Justice Harlan in dissent in Plessy.  Harlan wrote:

 

[The Fourteenth Amendment] declared, in legal effect, this court has further said,

"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."  [Quoting Strauder]

We also said:

"The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race — the right to exemption from unfriendly legislation against them distinctively as colored — exemption from legal discriminations, implying inferiority in civil society, Lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race." [again quoting Strauder]

…

It as said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.

Why is this not a fair reading of the Amendment's original meaning?  It is consistent with the textual meaning; it adopts the reading given by the Court in the immediate post-ratification period; and it surely describes accurately the practical motivation and effect of the state law.  And in any event, Harlan was much closer to the enactment than we are.  

I am not sure which step of Justice Harlan's dissent Professor Segall thinks is incorrect.  Was the Strauder Court wrong to say that the language of the Fourteenth Amendment meant "that the law in the States shall be the same for the black as for the white"?  Was the law in Plessy "the same for the black as for the white"?  Was Justice Harlan's wrong in concluding that the law was passed as a means of oppression of one race?

Professor Segall rests principally on the proposition that segregation was widely practiced and accepted in the post-ratification era.  Assuming that to be correct, it is not decisive.  The inquiry, to an original meaning originalist, is the meaning of the text.  Post-ratification practice is evidence of original meaning, but it is not conclusive evidence.  It may well have been that post-ratification governments were politically unable to live up to the promises of the Amendment (a point Harlan made in his dissent).  After all, prior to Strauder, West Virginia (and other states) only allowed Whites to serve on juries, but Strauder rightly found that practice unconstitutional under the Amendment's text and purpose.

I'm not aware of any leading originalist judge or scholar who thinks Plessy was rightly decided (though perhaps there are some; Professor Segall does not cite any).  So maybe he (and other nonoriginalists purporting to reach originalist conclusions on the matter) just aren't doing it right.

RELATED:  In USA Today, Glenn Reynolds: A 'living Constitution' on the right? The left should be glad that Gorsuch is an originalist and not a conservative activist.

UPDATE:  Apologies for spelling Professor Segall's name incorrectly in the initial post.