Brown v. Board: A Constitutional Debate
Are you a Con Law fanatic? If so, you would have been in for a treat the other day! Blog contributor Lauren Weldon and a few friends attended a Federalist Society debate titled, “Can Originalists Defend Brown v. Board of Education?” She offers up a meaty entry for you future constitutional law scholars right here:
“The debate featured Judge Michael McConnell (10th Circuit) defending the originalist position against Professor Michael Klarman, who argued that the originalist position was spurious (Professor Michael Seidman served as moderator).
“If you’re interested in knowing the quick and dirty answer as to the winner of the debate, my friends all found Professor Klarman’s non-originalist, non-textualist arguments as the most persuasive (but we might be biased). Regardless of one’s position, though, the debate provided a great opportunity to learn more about the history of and the legislation immediately after the 14th Amendment.
“Judge McConnell spoke first and argued that legislative attempts to pass civil rights legislation immediately after the 14th Amendment suggested that the Republicans who voted in favor of the 14th Amendment would have supported school desegregation.
“Professor Klarman then responded with several arguments, one of the most persuasive of which was that the United States Congress controlled the D.C. school system and chose not to desegregate the system. In addition, Professor Klarman noted that nothing in the legislative history of the debates and conversations at the time of the 14th Amendment suggested that the Republicans believed that the 14th Amendment would bar school segregation.
“Professor Klarman concluded by noting that the Brown Court did not rely upon these originalist positions or upon any textualist interpretation of the 14th Amendment to justify their decision. The fact that none of the justices turned to originalism or textualist interpretation was further proof that these arguments lacked a sound basis. According to Professor Klarman, the Brown decision was rooted in deep moral commitments on the part of the justices to oppose unequal treatment.
“Overall, the debate was quite interesting, particularly as a chance to learn more about the history of the 14th Amendment. At dinner after the debate, my friend also commented that the debate was a chance to think about how reliance upon one consistent method of judicial interpretation could lead to unfortunate social consequences.”
