Abandoning Originalism Is How We Got “Separate But Equal” In The First Place


Font Size:

One of the most pernicious attacks on constitutional originalism being advanced by opponents to Neil Gorsuch’s confirmation to the Supreme Court is the notion that it would have compelled the Supreme Court to uphold Plessy v. Ferguson, the notorious 1896 precedent sanctioning racial segregation in public facilities under the notion of “separate but equal,” instead of overturning it in Brown v. Board of Education. A brief review of the history shows the opposite to be the case.

The issue of segregation arose in the context of railroads decades before the Plessy Court faced that issue. Just a few years before there was a Fourteenth Amendment, the constitutional provision the Court was called to interpret, Congress passed a statute in 1863 extending a railroad into Washington, D.C., and requiring that “no person shall be excluded from the cars on account of color.” The railroad nonetheless separated otherwise equal train cars by race, and an African-American woman ejected from the white and forced to ride in the “colored” car sued. The Supreme Court unanimously ruled in her favor in 1873, rejecting an early “separate but equal” argument. While the case did not technically arise under the Fourteenth Amendment (ratified 1868), it did reflect the broad understanding of equality that characterized the Civil War-Reconstruction era.

In 1875, Congress passed a new Civil Rights Act that prohibited racial segregation in public accommodations and transportation, but the initial enthusiasm for racial equality was already giving way to growing public opposition to Reconstruction. The Supreme Court struck down the law in the Civil Rights Cases (1883) as exceeding the powers given to Congress under the Fourteenth Amendment—an odd conclusion to reach for a statute that passed with the affirmative votes of nearly all remaining members of the House or Senate who had voted for the Fourteenth Amendment. Thirteen years later, after former Confederate states were emboldened to pass laws requiring segregation in public facilities, the Court upheld them with its Plessy decision.

In both 1883 and 1896, it was not the Court’s majority, but the dissenting justice, John Harlan, whose argument invoked originalism. In his Civil Rights Cases dissent, Harlan expressed his “earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted.” Dissenting in Plessy, he reiterated that laws “must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes liberally, in order to carry out the legislative will. But however construed, the intent of the legislature is to be respected.  .  .  .” (There’s a succinct axiom of originalist interpretation and how it differs from the mistake often made in equating it with knee-jerk strict constructionism.) That Harlan had the original meaning on his side was corroborated by an 1883 New York Times editorial that noted of his dissent, “The tendency during the war period was toward the construction he [Harlan] favors. Since then a reaction has set in….”

The story of the retreat from Reconstruction and the accompanying wane of the national zeal for equality is not widely remembered, but it illustrates a fundamental problem for non-originalists: The belief that the Constitution should change with the times enabled the injustice sanctioned by Plessy in the first place.

Frank Scaturro served as Counsel for the Constitution on the staff of the Senate Judiciary Committee between 2005 and 2009, in which capacity he worked on the nominations of John Roberts and Samuel Alito to the Supreme Court and Neil Gorsuch to the Tenth Circuit. He is the author of, among other titles, The Supreme Court’s Retreat from Reconstruction (Greenwood Press, 2000). Follow him on Twitter.