Brown and the Limits of Originalism


Judge McConnell speaks at the Federalist Society panel.

Can the Court’s ruling in Brown v. Board of Education be defended with an original understanding of the Constitution? Last Tuesday, students filled Pound 107 to hear Professor Michael Klarman and Judge Michael McConnell debate the question while enjoying pizza provided by the Federalist Society.

Georgetown Professor Michael Seidman, currently teaching Constitutional Theory for the Winter Term, introduced the panelists by noting how remarkable it was that 50 years later the question of Brown’s consistency with originalism is still up for heated debate in academic circles. In fact, this was not even the first time that Judge McConnell and Professor Klarman had engaged each other on the issue. Ten years ago, both professors published dueling pieces in the Virginia Law Review, which each continued to defend.

Judge McConnell, currently teaching the Winter course Creation of the Constitution, defended Brown’s consistency with an originalist’s interpretation of the Constitution. The Tenth Circuit Court of Appeals Judge, who also teaches at the University of Utah’s S.J. Quinney College of Law, began the discussion by asking what the Brown Court would have found if it could set the clock back to the year the Fourteenth Amendment was adopted. In his opinion, one need only look to the Republican-controlled Congress and the legislative history of the 1875 Civil Rights Act to find support for the proposition that a large majority in 1866 believed that school segregation was unconstitutional under the Fourteenth Amendment.

University of Virginia Professor Michael Klarman argued against an originalist understanding of Brown. Professor Klarman, currently co-teaching Constitutional Theory with Seidman, is well known to Harvard students for his popular Constitutional Law and Constitutional History courses last year. The professor began by acknowledging that “originalists can defend Brown in theory; in practice, however, their defense is not quite persuasive.”

Perhaps most interestingly, Klarman noted that opponents of the Fourteenth Amendment argued that it would bar school segregation to try to prevent its adoption. Many supporters, on the other hand, disagreed, and many Congresses continued to segregate the District of Columbia school system up until the 1950s. Even the Brown Court, which had every incentive to provide originalist support for their opinion, failed to do so, perhaps because they did not believe there was any. Klarman ended by describing the paradox that Brown presents to originalists: They are sure that it was rightly decided, but are not prepared to license justices to write their moral opinions into the Constitution.

Kevin Hinkley, a 2L, found the debate “fascinating,” adding that “it was an honor to see two of the nation’s foremost constitutional scholars present their contrasting views on this important question.”