On Brown v. Board of Education and Discretionary Originalism

In 1954, the United States Supreme Court issued its seminal decision in Brown v. Board of Education. Interpreting and applying the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, a unanimous Court held “that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” In so holding, the Court determined that it could “not turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.” The Court chose, instead, to “consider public education in the light of its full development and its present place in American life throughout the Nation.” Is Brown consistent with—can the Court’s separate-but-equal-isunconstitutional holding be justified by—originalism? This Article examines originalists’ affirmative answers to this question. Originalism seeks to determine the fixed meaning of constitutional text at the time of its adoption and emphasizes constraining interpreters’ discretion and ability to introduce and act upon their personal predilections, preferences, values, and beliefs when engaged in constitutional interpretation. This Article’s focus is on how the “Is Brown originalist?” query addresses the claim that originalist analyses of that issue performed the posited constraint and discretion-limiting functions. As argued herein, originalism is in fact a discretion-laden methodology, providing readers of constitutional text with the freedom and flexibility to make discretionary and outcome-influential choices as they interpret and apply the document. Discretionary originalism, as employed by those seeking to demonstrate that Brown was rightly decided as an original matter, calls into question the methodology’s capacity to meaningfully constrain, in a principled and consistent manner, originalists engaged in the enterprise of interpreting the Fourteenth Amendment