Originalism and the Desegregation Decisions

Abstract

This article examines whether the original understanding of the Fourteenth Amendment supports the Supreme Court's decision in Brown v. Board of Education. McConnell argues that the historical evidence is more supportive of Brown than originalism's critics have assumed, tracing the legislative history of the Fourteenth Amendment and Reconstruction-era civil rights legislation. The article presents evidence that many supporters of the Fourteenth Amendment understood it to prohibit racial segregation in public institutions, challenging the conventional wisdom that originalism cannot support the desegregation decisions.

Key Findings

• The legislative history of the Fourteenth Amendment provides more support for desegregation than commonly assumed
• Reconstruction-era Congress debated and rejected racially segregated institutions
• Originalist methodology need not lead to results inconsistent with modern civil rights commitments
• The original public meaning of 'equal protection' was broader than Plessy v. Ferguson recognized

Related Statutes

• U.S. Constitution, Fourteenth Amendment
• Civil Rights Act of 1866
• Civil Rights Act of 1875

Related Cases

• Brown v. Board of Education (1954)
• Plessy v. Ferguson (1896)