Can an Originalist Defend Brown v. Board? Yes, and Here Is the Case

A strange thing happens whenever someone defends originalism in public. Within minutes, a hand goes up in the back and a voice says, in the tone of a prosecutor springing a trap: "But what about Brown?" The questioner sits back, satisfied. The assumption is that the defender will now squirm, because everyone knows that the most celebrated decision of the twentieth century cannot be reached by reading the Constitution the way the Founders' generation read it.

The trap is baited with a falsehood. The Fourteenth Amendment's words and the history that produced them support Brown v. Board of Education. A method that could not reach that result would have a serious problem, and I would say so. It can reach it, and this post shows how.

The question, stated fairly

Brown (1954) held that racial segregation in public schools violates the Equal Protection Clause of the Fourteenth Amendment. The challenge to originalism has two parts.

1. The Congress that proposed the Fourteenth Amendment in 1866 had already set up separate schools for Black children in the District of Columbia. If the people who adopted the text lived with school segregation, how can the text's original meaning forbid it?
2. Chief Justice Warren's opinion for a unanimous Court said the history of the Amendment was inconclusive on schools and did not rest on the Amendment's original meaning. If the Court did not think originalism delivered Brown, why should anyone?

Both questions deserve answers, not dodges. Let me take the text, then the history, then the opinion itself.

The text

Section 1 of the Fourteenth Amendment reads, in the relevant part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Start with the words. "Equal protection of the laws" is not "equal facilities." It is a command that a state extend the protection of its laws equally to every person within its jurisdiction. The phrase had a specific context. The Amendment was drafted to constitutionalize the principle of the Civil Rights Act of 1866, which declared that all persons born in the United States (and not subject to a foreign power) were citizens and guaranteed them "the full and equal benefit of all laws and proceedings for the security of person and property" as white citizens enjoyed. A common account, which I find persuasive, is that the Amendment's drafters wanted to put that principle beyond the reach of any future Congress that might repeal the statute.

Now read what the text rules out. A state law that classifies children by race and assigns them to different schools on that basis is a law that treats citizens differently because of a characteristic that the Amendment's drafters had in mind as the central target. The question for the originalist is whether the 1868 public meaning of "equal protection" tolerated a legal regime in which the state, by law, sorted its citizens into castes. A reasonable reader of the Amendment's text in 1868, knowing the Black Codes that preceded it and the statute it was meant to secure, would be hard pressed to say it did.

Note what this argument does not need. It does not need to show that every member of the 39th Congress personally expected school desegregation. It needs to show what the words meant to the public that adopted them, and the best reading of those words is a ban on state-imposed racial caste.

The history: what Congress said and did

The strongest objection rests on facts, so let me state them honestly. Congress, in laws passed in 1862 and 1864 among others, set up separate schools for Black children in the District of Columbia. That fact is real, and any honest argument has to face them.

Here is the other half of the record, which the objection leaves out.

The 1875 debate over schools

The decisive evidence comes from the 1870s. Senator Charles Sumner of Massachusetts, the great antislavery leader, had pushed for years for a federal civil rights law that would bar segregation in public accommodations and in schools. He died in 1874. In 1875, Congress finally passed the Civil Rights Act of 1875, which required equal treatment in public accommodations and public transportation. The school provision, however, was dropped from the final bill.

That fact is usually cited against Brown. But look at what the debates showed. Supporters of school integration argued that segregation was inconsistent with the Fourteenth Amendment, and opponents argued about what the Amendment required. In other words, the issue was live and contested and the people who thought the Amendment forbade segregation made that case in the open. The record is not a settled consensus that the Amendment permitted segregated schools. It is a division in which a serious body of the Amendment's own supporters, in the years right after ratification, understood its principle to forbid it. The omission from the 1875 bill reflected political limits at the time, as with so many measures that were passed in a weaker form than their supporters wanted, and not a constitutional judgment that segregation was lawful.

The tradition that the Amendment forbade caste

Beyond the schools question, the broader history is clear. In Strauder v. West Virginia (1880), the Court held that a state law excluding Black men from jury service violated the Equal Protection Clause, and described the Amendment's purpose in terms of securing equal rights for the newly freed race. The Amendment's evident purpose, as the generation that adopted it understood it, was to abolish a system in which the law assigned people to inferior legal status by race. School segregation by statute is that system applied to children.

What McConnell showed

The leading scholarly account is Michael McConnell's article "Originalism and the Desegregation Decisions," published in the Virginia Law Review in 1995. McConnell, then a law professor, read the Reconstruction record closely, including the congressional debates on the 1875 civil rights bill and the school provision. His conclusion was that the evidence, taken as a whole, supports the view that the Amendment's ratifiers understood it to prohibit state-mandated school segregation, or at the least that the better reading of the original meaning favors Brown. He did not claim that the record was without contrary evidence, and nobody should. He argued that a careful originalist, weighing everything, reaches the same place the Court did.

That is exactly how originalist argument is supposed to proceed. It is not a slogan. It is a claim about evidence that others can examine, test and dispute.

Harlan saw it first

Twenty-eight years after the Amendment's ratification, in the case that should have settled the question, the Court got it wrong, and one Justice said so. In Plessy v. Ferguson (1896), the Court upheld Louisiana's law requiring "equal but separate" railroad cars. Justice John Marshall Harlan, a Kentuckian and a former slaveholder, dissented alone.

His words are the clearest statement of the argument that Brown eventually vindicated. "Our Constitution is color-blind," Harlan wrote, "and neither knows nor tolerates classes among citizens." Earlier in the same dissent he had written that the Constitution "does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights."

Harlan read the Amendment's text, and the Reconstruction amendments' purpose, as forbidding exactly the kind of classification that school segregation involved. He was not an inventor of new principles. He was reading the Amendment the way its ratifiers had framed it, and he did so in the teeth of a majority that preferred the comfortable fiction that "separate" could be "equal." For his full story, see Justice Harlan's Lone Dissent in Plessy and the Colorblind Constitution.

The point for the originalist is simple. When a Justice who held no brief for the modern "living" approach read the text in 1896, he reached the result that Brown reached in 1954. That is how you know the result does not depend on a modern moral awakening. It depends on the text.

Warren's opinion and what it did not say

The second objection concerns the opinion. Chief Justice Warren, writing for a unanimous Court on May 17, 1954, acknowledged that the history of the Amendment's adoption was, as to schools, "inconclusive." He wrote that the Court could not "turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written," and that public education had to be considered "in the light of its full development and its present place in American life." He concluded that "in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."

A critic reads that and says: the Court itself abandoned the original meaning. An honest reader should concede three things.

1. Warren's opinion was not written in originalist terms. It leaned on the importance of public education in American life.
2. The Court in 1954 had a reason to avoid a fight over the history. It had heard reargument and found the evidence of the Amendment's adoption, at best, inconclusive. A unanimous decision on a politically explosive question had value, and Warren worked to get it.
3. The opinion's reasoning does not show that the result is beyond originalist reach. A court's chosen path to a result is not the only available path. The question for the method is whether the result can be reached by the method, and McConnell's work says it can.

There is also a companion decision that many people forget. On the same day, in Bolling v. Sharpe (1954), the Court struck down segregated schools in the District of Columbia. The Fourteenth Amendment binds states and not the federal government, so the Court rested that decision on the Fifth Amendment's Due Process Clause. That ruling is harder to defend on originalist grounds, and honest defenders of the method say so. The text of the Fifth Amendment says nothing about equal protection. Defenders of the result argue that the Fifth Amendment's guarantee against arbitrary deprivation of liberty reaches a federal system of racial caste, and some scholars have proposed other routes through Congress's powers in the District. The difficulty of Bolling is a reminder that no method gets every case without friction, which is not an argument against the method.

The strongest objection and the answer

Let me state the strongest version of the opposition in a paragraph, then answer it.

The originalist says the Amendment's meaning is fixed by what the ratifiers understood. But the ratifiers lived in a country with segregated schools and did not think the Amendment changed that. If you take their understanding seriously, you must conclude that Brown was wrong. If you do not, you have abandoned the method.

The answer has three points.

1. Original meaning is not the same as original expected applications. This is the central distinction. The meaning of a constitutional provision is the principle it states. The expected applications are what people at the time assumed it would cover. When a principle is written in general terms, such as "equal protection of the laws," later generations may discover that the principle applies in ways the drafters did not foresee or even resisted. The text binds, not the guess. A person in 1868 who said "this will not end school segregation" was making a prediction or expressing a hope. The Amendment's words said something broader, and the words are the law.
2. The same reasoning governs ordinary law. If a contract says "the seller will deliver goods of merchantable quality," and a dispute arises over a product neither party imagined, no court asks whether the parties expected that product. It asks what the words required. The same logic applies to constitutional principles.
3. The reasoning has a moral and constitutional pedigree. It is how the Court itself has treated the Fourteenth Amendment from Strauder forward, and how Harlan treated it in 1896. The originalist who applies the Amendment's stated principle to segregated schools is applying the Constitution as the Reconstruction generation wrote it, which was in broader terms than some of them lived up to.

For those who want the full treatment of this distinction and the other recurring objections to the method, see Five Serious Objections to Originalism and the Answers That Hold Up and Hard Questions for Originalists, Answered From the Text and the Record.

Why it matters to the people who ask

There is a reason the Brown question keeps coming up, and it is not only a debating trick. Brown is the moral center of modern American law. A theory that could not account for it would deserve to be discarded, and critics are right to press the point. The response should therefore be a real one, drawn from the text and the record.

It also matters because of what Brown eventually stood for. The Constitution that Harlan described, that "neither knows nor tolerates classes among citizens," is a conservative principle in the deepest sense: the equal dignity of the individual before the law, regardless of race. That principle has a Founding-era root in the Declaration's statement that all men are created equal, and it reaches its textual fulfillment in the Fourteenth Amendment. Conservatives do not need to apologize for Brown. They should claim it. The case was decided by a Court that spoke with one voice, and it can be defended, on the text, by a method that takes the text seriously.

The Court has since returned to the color-blind principle. In Students for Fair Admissions v. Harvard (2023), the Court's opinion and concurrences invoked the Equal Protection Clause's guarantee against racial classification, and that story is a chapter of its own.

The case in brief

1. The Fourteenth Amendment forbids a state to "deny to any person within its jurisdiction the equal protection of the laws," and a statute that sorts children into schools by race fails that command on its face.
2. The history is not a consensus in favor of segregation: the 1870s debates over school integration show a serious body of ratifiers' allies arguing that segregation violated the Amendment, and McConnell's 1995 article concluded that the original meaning favors Brown.
3. Harlan's Plessy dissent read the text the same way in 1896, long before the modern Court, which shows the result does not depend on a modern moral awakening.
4. Warren's opinion avoided originalist reasoning, but a court's chosen route to a result does not show the result is unreachable by the method.
5. The difference between the original meaning of a principle and the original expected applications answers the objection that the ratifiers tolerated segregation.

What you can do: read Section 1 of the Fourteenth Amendment and Harlan's dissent in Plessy side by side, and then read the first page of Brown.