The originalist case for Brown v. Board of Education

Article Abstract:

Originalist interpretation of the Fourteenth Amendment and accompanying historical evidence supports the conclusion in Brown v. Board of Education, contrary to the criticisms levied by nonoriginalists. The record at the time of the Fourteenth Amendment's passage is sparse on the issue of school desegregation, but debate ten years later regarding a bill introduced by Charles Sumner indicates otherwise. After much debate that assumed that segregation was contrary to equality, the bill failed to gain a two-thirds majority by a few votes. This evidence indicates that separate-but-equal was perceived as contrary to the Fourteenth Amendment in the 19th century.

Usage, Equality before the law, Equal protection, Political aspects, School integration, Legislative histories

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"Originalist" values and constitutional interpretation

Article Abstract:

The definition of originalist constitutional interpretation that best serves the values of legitimacy and certainty is that the Constitution should be interpreted as the set of rules that the Framers intended to create. A strict textual approach is flawed because of the ambiguity of dictionary meanings and because it does not acknowledge that the text is a political one. The original understanding approach is called into question when the interpretation appears inconsistent with intent. The original values approach does not provide the certainty needed for consistent application.

Judicial review

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The political function of originalist ambiguity

Article Abstract:

One problem with originalism in constitutional interpretation is that, in its more robust form, it fails to integrate precedent that may have obtained the respect and usage that establishes a rule as part of the rule of law. Hard-line originalism also fails to be descriptive of existing practice, in which judges and justices do take into account changes in cultural norms as well as precedent. More moderate forms of originalism that are willing to integrate precedent into decision-making are uninteresting because they do not differ fundamentally from nonoriginalist approaches.

Judicial process

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