Way Inside Baseball Constitutional Law Essay

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Ed Whelan's got a great piece on originalism and Brown v. Board of Education:

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? "[I]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.

I've always loved how liberal judges ignore time-honored precedents, introduce whatever psychobabble fad showed up on "Oprah" this week, crank out ludicrously-reasoned opinions to justify their tinfoil-hat notions, then chide conservatives for not respecting the "precedent" they've set.

Chalk it up as Reason 998 why Frist had better nuke the Democrats and get rational people back on the federal bench.