Originalism and the desegregation decisions - response to Professor McConnell.

• Author: Maltz, Earl M.
• Position: Response to Michael W. McConnell, Virginia Law Review, vol. 81, p. 947, 1995

In Originalism and the Desegregation Decisions(1) Professor Michael W. McConnell makes a bold effort to justify Brown v. Board of Education(2) in terms of originalist theory. Unlike commentators who have previously dealt with this issue, Professor McConnell does not focus his primary attention on the period from 1866 to 1896--the time in which the Fourteenth Amendment itself was drafted and ratified. Rather, he argues that the treatment of Sen. Charles Sumner's Civil Rights Bill in the 1870s suggests that at that time Republicans generally believed that the Fourteenth Amendment outlawed segregated schools. He further maintains that Republican attitudes in the 1870s should be considered authoritative evidence of the original understanding.

The article bears many of the characteristics that have made Professor McConnell one of our leading constitutional scholars. Meticulously researched and carefully argued, the article adds greatly to our understanding of the doctrinal arguments that surrounded the desegregation issue in the 1870s, as well as the political dynamic that resulted in the elimination of the school-related provisions from the Civil Rights Act of 1875.(3) Unfortunately, however, Professor McConnell fails in his attempt to demonstrate that the decision in Brown is consistent with the original understanding.

Refutation of Professor McConnell's argument is a two step process. The first step is to explain why congressional treatment of the school desegregation issue in the 1870s does not demonstrate that the original understanding was that the Fourteenth Amendment outlawed school desegregation. The second step is to show that other historical evidence indicates that the framers did not believe that they were forbidding states from maintaining segregated schools.

1. CONGRESSIONAL TREATMENT OF SUMNER'S CIVIL RIGHTS BILL DOES NOT NECESSARILY SUPPORT THE VIEW THAT BROWN WAS RIGHTLY DECIDED

   The use of the congressional treatment of Sumner's Civil Rights Bill to support Brown in originalist terms faces two separate problems. The first problem is doctrinal: while Brown dealt with the impact of the Fourteenth Amendment per se on school segregation, the issue in the debate on the Civil Rights Act was whether Congress had the power to require public schools to be desegregated. The second problem is temporal: the Civil Rights Act was not considered and adopted until several years after the Fourteenth Amendment was ratified, and political conditions had changed substantially in the interim.

   THE DOCTRINAL PROBLEM

   The constitutional issue that was debated in the 1870s was whether Congress had the power to order school desegregation under Section 5 of the Fourteenth Amendment. This question is analytically distinct from that of whether Section 1 by its terms requires desegregation (although the two issues obviously are related). Moreover, there is substantial reason to believe that at least some Republicans understood this distinction and knew that they were dealing only with the Section 5 issue.

   As Professor McConnell notes, Republican Rep. William Lawrence of Ohio enunciated the basic constitutional theory underlying the provisions of the Civil Rights Bill that dealt with schools. Lawrence argued that "[w]hen the States by law create and protect, and by taxation on the property of all support, benevolent institutions designed to care for those who need their benefits, the dictates of humanity require that equal provision should be made for all."(4) This theory--also cited by Republican Senators Oliver H. P. T. Morton and John Sherman as the justification for including public education in the Civil Rights Bills(5)--draws its support from antebellum legal authorities defining the scope of the right to protection of the laws. In relevant part, these authorities did not rely on either a particular distaste for racial classifications or an assessment of the importance of particular government benefits. Rather, they were based on the view that where a class of people was taxed to support a given benefit and then denied access to that benefit, that class was, in essence, subject to an uncompensated taking and, as such, denied the right to protection from government.(6)

   This doctrine played an important role in the 1860 Senate debate over the funding of education in the District of Columbia. As initially proposed, the bill before the Senate provided simply that the city authorities could impose a general property tax to benefit the public schools in the District and that the federal...