Originalism and Brown v. Board of Education

170 Pages Posted: 27 Oct 2013

Date Written: August 8, 2013


This article offers an originalist justification for the Supreme Court’s landmark decision almost sixty years ago in Brown v. Board of Education. We examine the thirty-seven State constitutions that were in effect in 1868, when the Fourteenth Amendment was ratified, and we conclude that three-quarters of the States in 1868 recognized access to a public school education as being a fundamental right at that time. Since the Fourteenth Amendment forbids racial discrimination with respect to fundamental rights, i.e. privileges or immunities of national and state citizenship, Brown v. Board of Education was correctly decided using the original public meaning approach of Justices Antonin Scalia and Clarence Thomas. We show that by 1954 fifteen of the Forty-Eight States had added clauses to their State constitutions specifically providing for racial segregation in public schools. A three quarters consensus about access to a desegregated education which existed in 1868 thus had vanished by 1954. We therefore suggest that Brown v. Board of Education finds more support in State constitutional law from 1868 than it does from State constitutional law in 1954. Contrary to the received understanding, Brown v. Board of Education is better justified using an originalist approach to constitutional interpretation than it is using a living constitution, evolutionary approach. The conventional wisdom about Brown v. Board of Education is thus shown to be completely and totally wrong.

Keywords: Public School Education, Constitutional Provisions, Fundamental Rights, Statutes and Case Law, Segregation Laws, State Constitutional Provisions

JEL Classification: K1, K10, K19, K39

Suggested Citation

Calabresi, Steven G. and Perl, Michael, Originalism and Brown v. Board of Education (August 8, 2013). Northwestern Law & Econ Research Paper No. 13-26; Northwestern Public Law Research Paper No. 13-26. Available at SSRN: https://ssrn.com/abstract=2307651 or http://dx.doi.org/10.2139/ssrn.2307651

Steven G. Calabresi (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Michael Perl

Northwestern University - Pritzker School of Law

375 E. Chicago Ave
Chicago, IL 60611
United States

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