Balkinization  

Tuesday, October 27, 2009

Justice Scalia comes clean on Brown v. Board of Education?

JB

UPDATE:

As I suspected, Justice Scalia did not say he would have dissented in Brown v. Board of Education in 1954. The newspaper account is incorrect and took his remarks out of context. The author of the article, Howard Fischer of Capitol Media Services, owes Justice Scalia an apology.

And I apologize for quoting this incorrect article in my original post.

Here is the video of the event:

At 23:45 Justice Scalia is clearly misquoted. He says that he stands with Justice Harlan, who dissented in Plessy v. Ferguson. He argues that the original meaning of the Fourteenth Amendment prohibits racial discrimination.

Here is the original posting, based on the inaccurate newspaper account:

* * * * *

Although Justice Antonin Scalia and I are both originalists, the two of us have quite different theories of original meaning. Scalia has generally looked to how the public would have applied the words of the Constitution at the time of their enactment, whereas I argue that fidelity to original meaning does not require fidelity to original expected application.

Under Scalia's version of original meaning orignalism, many modern civil rights decisions would come out the other way. In this recent report, Scalia is quoted as saying that he thinks Brown v. Board of Education was wrongly decided in 1954. (Hat tip to Christopher Rickerd for altering me to this article).

Prominent people's remarks are taken out of context in public settings, so perhaps Scalia was misquoted and will correct the error. But if this is what he actually said, at least he has the courage of his convictions:

Using his "originalist'' philosophy, Scalia said he likely would have dissented from the historic 1954 Brown v. Board of Education decision that declared school segregation illegal and struck down the system of "separate but equal'' public schools. He said that decision, which overturned earlier precedent, was designed to provide an approach the majority liked better.

"I will stipulate that it will,'' Scalia said. But he said that doesn't make it right. "Kings can do some stuff, some good stuff, that a democratic society could never do,'' he continued.

"Hitler developed a wonderful automobile,'' Scalia said. "What does that prove?''
In a 2005 interview with Margret Talbot in the New Yorker, Scalia stated that he would have voted with the majority in 1954. What, if anything, produced his change of mind?

If the current report is accurate, it's worth asking whether Scalia would now rethink the decision in Bolling v. Sharpe-- holding that race discrimination violates the Due Process Clause of the Fifth Amendment (an amendment ratified in 1791, when slavery was prevalent). Bolling, to put it mildly, has far less justification than Brown according to Scalia's version of original meaning. It is hard to see how Scalia could think it correctly decided. And if Scalia would have dissented in both Brown and Bolling, what explains his very strongly held view that race-based affirmative action by both the states and the federal government is unconstitutional, since that position seems to rest on the authority of Brown and Bolling? Indeed, what explains his joining the recent decision in Parents Involved, in which the plurality insisted that voluntary integration plans produced by democratically elected bodies violated Brown v. Board of Education?

If you adopt my version of originalism, the method of text and principle, Brown and Bolling are not difficult cases at all. The question then is how to apply the principle against class legislation to race-based affirmative action or voluntary integration programs. And there are other version of originalism (for example, Michael McConnell's) that argue that Brown is correct as a matter of original meaning (although not Bolling). But Scalia does not even get this far in the analysis if we use his version of original meaning originalism.

What are Scalia's current views on these and other subjects? Perhaps his remarks were just taken out of context. I hope we'll learn more soon.


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