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Tuesday, November 10, 2009

School Segregation, Originalism and the Lost Black Republic in the South

Justices Breyer and Scalia recently spoke at the Rehnquist Center of the University of Arizona on their divergent views of legislative interpretation.  (Video here). Adam Liptak in The New York Times reported that the debate revived a decades-old litmus test of legitimate constitutional theory: Whether it leads to Brown.  Thus, in a wonderful article Michael McConnell, recognizing that the game was on the line, struggled to conclude that the original meaning of the 14th Amendment prohibited segregation even though many ratifying jurisdictions segregated schools before and after ratification.  Some critics of originalism propose that the original public meaning of the 14th Amendment permitted segregation, and therefore that to accept originalism is to accept segregation.  Unless the original meaning has changed recently, that implies that originalists would be forced to tolerate segregation even now.

My co-author Randy Wagner and I propose a different reconciliation of school segregation and the 14th Amendment.  In The Tyranny of the Majority: Jim Crow and the Counter-Majoritarian Difficulty, we note that after the Civil War, African Americans were an absolute majority of the population in Louisiana, Mississippi, and South Carolina, and more than 40% of the population in Alabama, Florida, Georgia, and Virginia.  Thus, the framers and ratifiers of the 14th (and 15th) Amendments resolved segregation politically: If the majority wanted school segregation, they would have it, but, given that political control in the South belonged to African Americans, it would be on terms not only acceptable to, but dictated by, them.  Of course, African Americans were disenfranchised in the South in ways now recognized as unconstitutional.  In 1954, then, the Court was not faced with a conflict between majority rule and minority right,  but with the fact that majority rule, and democracy itself, had come undone in the former Confederacy.    

Posted by Marc Miller on November 10, 2009 at 02:29 PM | Permalink

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