FAILED QUEST The Unsuccessful Effort to Reconcile Brown with Originalist Theory Open Access

As Pamela S. Karlan has observed, commentators typically characterize the decision in Brown v. Board of Education¹ as the “crown jewel” of American constitutional jurisprudence and often contend that “[a] constitutional theory that cannot produce the result reached in Brown is a constitutional theory without traction.”² Most originalists apparently agree with this assessment. Thus, the list of judges and scholars who in recent years have made a point of insisting that the result in Brown can be derived from the original meaning of Section 1 of the Fourteenth Amendment reads like a veritable who’s who of the leading lights of the originalist community.³ In taking this position, these originalists are not simply arguing that, at the time that the amendment was drafted and ratified, Section 1 would have been understood to require state governments to provide equal funding for all schools that were segregated by race, or even that section five would have been viewed as vesting Congress with the authority to outlaw racial segregation by statute. Instead, they are asserting that, if the language of Section 1 was given its original meaning, in 1954 the Fourteenth Amendment would have been held to forbid state governments from creating and operating public schools that are segregated by race, even if the schools to which children of color were assigned received the same funding as those that served white children.

While originalists who take this position have made a variety of different doctrinal and historical arguments, Michael McConnell’s Originalism and the Desegregation Decisions⁴ is the article that is most often cited by those who claim that the ban on the maintenance of segregated schools can be defended in originalist terms. In fact, however, the McConnell article fails to provide a persuasive defense of the view that the Supreme Court’s conclusion in Brown can be derived from the original meaning of the Fourteenth Amendment. Instead, the article illustrates the difficulties that originalists face in seeking to reconcile an allegiance to Brown with a more general commitment to a constitutional jurisprudence that focuses on the original meaning of the text.

McConnell begins by observing correctly that the legislative history of the Fourteenth Amendment itself contains “little discussion of the meaning of the relationship between section one and the issue of segregated schools.”⁵ Against this backdrop, he notes that in the period between the ratification of the Fourteenth Amendment and the passage of the Civil Rights Act of 1875, Congress was repeatedly forced to confront the question of whether such segregation should be banned.⁶ McConnell asserts that the discussions that took place during the deliberations that ultimately led to the passage of the Civil Rights Act of 1875 provide the “best available evidence” of the relationship between the original meaning of Section 1 and the constitutionality of segregated public schools.⁷ These discussions provide the basis for his assertion that Brown can be defended in originalist terms.

In his defense of this claim, McConnell relies heavily on the arguments that were made by Republican Senator Charles Sumner of Massachusetts, who spearheaded the effort to have Congress adopt a statute outlawing racial segregation in public schools in the early 1870s.⁸ Sumner’s argument in turn is based on an analogy between public schools on one hand and inns and common carriers on the other.⁹ Thus, after a detailed discussion of the common-law rules that guaranteed equal access to inns and common carriers, Sumner asserted that public schools “fall[] naturally into the same category.”¹⁰ He contended that a “common” school was “an inn where children rest on the road to knowledge” and “a public conveyance where children are passengers” that “holds itself out to the public with its name and its harmony with the other institutions.”¹¹ Indeed, Sumner claimed that public schools “have a higher character” than either public inns or common conveyances because “the object is the education of the young and it is sustained by taxation to which all contribute.”¹²

However, even during the early 1870s, others had a far narrower conception of the scope of the authority granted to Congress by the Fourteenth Amendment. Sumner was opposed not only by congressional Democrats, who uniformly insisted that Congress did not have the power to outlaw racial segregation in the public schools,¹³ but also by Republicans such as Senator Lyman Trumbull of Illinois. In 1872, Trumbull, who had chaired the committees that had drafted both the Thirteenth Amendment and the Civil Rights Act of 1866,¹⁴ appeared to concede that the segregation of common carriers would violate the rights of Black people.¹⁵ But at the same time, he insisted that segregation of public schools stood on a different footing, arguing that because “schools do not exist naturally [but] are artificial,” the right to attend such schools was not a civil right but was instead “a privilege created by legislation.”¹⁶

Congress never enacted a ban on racial segregation in public schools during the Reconstruction era. Nonetheless, McConnell argues that originalists should embrace Sumner’s interpretation of the Fourteenth Amendment rather than Trumbull’s competing vision of the import of Section 1 because most Republicans in Congress (including most of those who had also been members of the Thirty-Ninth Congress, which approved what would become the Fourteenth Amendment) apparently supported Sumner’s effort in the early 1870s and thereby either implicitly or explicitly embraced Sumner’s characterization of the original meaning of Section 1.¹⁷ However, the focus on the number of representatives who supported Sumner on this issue reflects a misconception about the nature of the inquiry that must be made for originalist purposes.

In identifying the rule of law to be applied, originalists do not (or at least should not) ask whether a particular person or group of people would have interpreted the text in a certain manner soon after the text was drafted and ratified. Instead, in this context, the relevant question is whether a neutral observer would have concluded that the original meaning of the language of Section 1 of the Fourteenth Amendment rendered maintenance of segregated schools unconstitutional at the time the amendment was drafted and ratified. Viewed from this perspective, the arguments about the scope of Section 1 that were made during the discussions that culminated in the passage of the Civil Rights Act of 1875 are in fact of only limited significance for originalist purposes.

The emphasis on the analysis of Charles Sumner provides a particularly dramatic example of the problems associated with the reliance on such arguments. As McConnell notes, as early as 1849, Sumner had unsuccessfully sought to persuade the Massachusetts Supreme Court to require the desegregation of the public schools in that state.¹⁸ Moreover, during the debate over the Civil Rights Bill, he had “insist[ed] upon th[e] interpretation [of the Reconstruction amendments] which shall give them the most generous expansion, so that they shall be truly efficacious for human rights”¹⁹ and asserted that “every word in the Constitution [must] be interpreted so that Liberty and Equality shall not fail.”²⁰

Given this perspective, one would certainly not describe Sumner as a neutral observer even in 1872. Instead, his description of the principles that he characterized as being embodied in the Fourteenth Amendment was that of a committed ideologue who had every reason to describe the original meaning of Section 1 in a manner that would justify the passage of a federal statute that outlawed racial segregation in public schools.

Admittedly, Sumner’s views were more radical than those of many of the Republicans who supported his civil rights initiative in the early 1870s. Nonetheless, one point is clear: all those who argued that the Fourteenth Amendment vested the federal government with the power to ban racial segregation in the public schools also believed that the imposition of such a ban would have been good public policy. Thus, none of those who argued that the Civil Rights Bill was constitutional could be aptly characterized as a “neutral observer” for purposes of an originalist analysis of Section 1, particularly in view of the fact that, as McConnell himself concedes, attitudes toward school desegregation in the North were in a state of flux during the Reconstruction era and appear to have changed significantly in the years immediately following the passage and ratification of the Fourteenth Amendment.²¹ As a result, the significance of the opinions expressed by Republican senators during the debate over the Civil Rights Act is limited at best.

Instead, the effort to ascertain the original meaning of the Fourteenth Amendment as it relates to the issue of segregated schools should focus specifically on the evidence that can be derived from the situation as it existed in the years between 1866 and 1868—the period during which the Fourteenth Amendment was being considered by Congress and the ratifying state legislatures. The problem, of course, is that, as McConnell noted, the issue was hardly mentioned during either the process of drafting the Fourteenth Amendment or the ratification debates that followed.²² Nonetheless, even in the absence of other evidence, the political context in which the creation and ratification of the amendment took place would serve to call the originalist case for Brown into question.

The Republicans who were responsible for drafting and ratifying the amendment were no doubt aware of both the significance that courts of law were likely to give particular language in the light of existing legal authorities and the meaning that the public at large was likely to ascribe to the same language. Absent a compelling need, they would have been unlikely to choose language that had the potential to either create major political problems for the Republican party in the period immediately following the Civil War or prevent Republicans from making policy determinations that they might have deemed appropriate during the same period.

The latter point is especially important because Section 1 of the amendment was neither drafted nor ratified in isolation. Instead, at the time it was passed by Congress, Section 1 was simply one part of a multifaceted proposal that was created for the purpose of describing the terms on which the Republican party would allow the ex-Confederate states to regain their status as fully participating members of the Union.²³ Moreover, this proposal was designed in a manner that was intended to both unite mainstream Republicans and appeal to centrist voters in the midterm elections of 1866.²⁴ Thus, during the discussions that culminated in the passage and ratification of the Fourteenth Amendment, Republicans repeatedly and consistently emphasized what they characterized as the limited scope of Section 1, which, they claimed, embodied only values that were largely uncontroversial, at least among white Northerners.²⁵

Republicans could not have made this claim if McConnell’s conception of the original public meaning of Section 1 was correct. As Michael J. Klarman has observed, “[i]n the immediate postbellum period, racially integrated schools were the norm only in parts of New England and the upper Midwest.”²⁶ By contrast, in crucial swing states such as Indiana, New York, Ohio, and Pennsylvania, segregation continued to be the norm until the late nineteenth century.²⁷ Indeed, even as late as 1871, some mainstream Republican senators expressly stated that they believed that, at least in the short and intermediate term, Black students might well fare better in segregated schools.²⁸

Moreover, several of the northern state legislatures that voted to ratify the Fourteenth Amendment also apparently believed that the amendment in no way limited the right of the states to operate public schools that were segregated by race. The actions taken by the state legislature of Nevada are particularly striking in this regard. On January 27, 1867, the Nevada legislature voted to ratify the Fourteenth Amendment.²⁹ However, less than two months later, the same legislature passed a statute that barred people of color from attending the public schools in the state but also provided that the authorities could use public funds to establish separate schools to serve the excluded groups.³⁰ The latter decision would be incomprehensible if the members of the Nevada legislature believed that maintenance of segregated schools was barred by the amendment they had approved less than two months earlier.

In short, even in the absence of any other evidence from the relevant time period, one would have to decide whether it is even plausible to think that the Republicans who crafted Section 1 decided to choose language that at that time would have been generally understood to outlaw a practice that was widespread in the North and reflected the views that were held by many of the same people whose support would be crucial in the midterm elections. But in addition, the treatment of race-related issues by Congress itself provides even more-conclusive evidence of the original understanding of the relationship between Section 1 and the issue of racial segregation in public schools. In particular, the manner in which Congress chose to provide education for free Black children in the District of Columbia clearly shows that, in the mid-1860s, congressional Republicans did not ascribe to the view that maintenance of segregated schools should be prohibited by law.

Congressional discussions of the question of whether free Blacks should have access to public schools in the District of Columbia began in April 1860. The debate began after Democratic Senator Albert G. Brown of Mississippi brought forth a proposal that would have empowered the government of the District of Columbia to impose a property tax for the purpose of providing resources for the public schools in the city generally and that provided that if such a tax was imposed, the federal government would provide matching funds of up to $25,000 per year.³¹ A number of Republicans asserted that, as written, the bill treated free Blacks unfairly because property owned by Black people would be subject to taxation without any assurance that Black children would have access to the public schools.³² Seeking to avoid this problem, Brown proposed an amendment that would have exempted the property held by free Blacks from the school taxes envisioned by the bill.³³

By contrast, contending that both poverty and crime could be reduced by giving members of the Black community access to educational opportunities,³⁴ Republicans argued that Black children should be allowed to attend the schools that would be financed by the taxes. But at the same time, Republican Senators Daniel Clark of New Hampshire and James Harlan of Iowa made it clear that they and their Republican colleagues were not seeking to require white children to attend the same schools as their Black counterparts.³⁵ Noting that “there is an objection to the association of white children and [Black] children in the same schools,” Harlan predicted that white students would refuse to attend schools that also served Black people.³⁶ Thus, asserting that “[w]hether this prejudice is well or ill-founded is not a question for us to determine,”³⁷ Harlan moved to add language that would have required the District of Columbia to provide separate schools for free Black children.³⁸

Ultimately, after a heated debate that focused largely on race-related issues,³⁹ the Senate took no action on the proposal to provide funding for District of Columbia schools in 1860. However, the political context was very different when Congress considered a comprehensive bill dealing with the school system in the District of Columbia in 1862. By that time, the enslaved Black people in the city were on the verge of being emancipated,⁴⁰ and most of those who had opposed the idea of providing education for free Blacks in 1860 had left Congress after the secession of the Southern states.⁴¹ Nonetheless, Republicans continued to be committed to the idea that students should be segregated by race.

This point emerged clearly during the discussion of the education bill. The first printed version of the bill made no mention of race, stating instead that “any resident [of Washington County] shall be privileged to place his or her child … at any one of the schools in [the] county” and that the resources necessary to operate the schools should be derived from taxes that were levied “on all the assessable property in [the] county.”⁴² But before the bill was even considered on the Senate floor, Republican Senator James W. Grimes of Iowa—the chair of the Committee on the District of Columbia who would later become a member of the committee that drafted the Fourteenth Amendment—moved to change the language of the bill in order to provide that “any white resident [of Washington County] shall be privileged to place his or her child … at any one of the schools in [the] county” and that the relevant taxes were to be imposed on the property that was “owned by white people.”⁴³ Grimes explained that the purpose of the changes was “to make the bill conform to the views of the committee” and “to open the schools [only] to white children.”⁴⁴

The changes that Grimes advocated were quickly adopted without debate.⁴⁵ However, subsequent events demonstrated that the purpose of the changes was not to prevent Black children from obtaining access to a publicly funded education but rather to pave the way for the creation of a system of segregated schools in the District of Columbia. Thus, less than a month after the first bill was adopted by the Senate, Grimes introduced a new bill that essentially called for the establishment of a parallel system of taxation of land owned by people of color, with the proceeds from those taxes being used to fund schools that would educate Black children.⁴⁶ After being reported by the Committee on the District of Columbia,⁴⁷ this bill was passed without discussion by both the Senate and the House of Representatives.⁴⁸

During the years that followed, the Republican-dominated Congress continued to act in a manner that both implicitly and explicitly endorsed the idea that public schools should be segregated by race. For example, in 1864, Congress passed a statute that required the local authorities “to provide suitable and convenient houses or rooms for holding schools for Black children, to employ and examine teachers therefor” and to devote an appropriate portion of the available funds to the support of these schools.⁴⁹ The same statute also provided that “any white resident [of the city] shall be privileged to place his or her child … at any one of the schools provided for the education of white children … and any [Black] resident shall have the same right with respect to [schools for Black children].”⁵⁰

Republican support for the dual school system that had been established in the District of Columbia remained strong in 1866. Thus, Republican Senator Henry Wilson of Massachusetts spoke glowingly of what he characterized as the success of the “colored schools” during the first session of the Thirty-Ninth Congress,⁵¹ and at the same time that the Fourteenth Amendment itself was being considered, Congress enacted laws that both donated property for the sole use of the schools that had been established to provide education for the Black children of the District of Columbia and required the city governments to pay to those schools a “proportionate share” of the funds that were made available to the public schools generally in the city.⁵²

The decision to establish and maintain public schools that were separated by race is particularly striking when juxtaposed with the Republican reaction to segregation by local streetcars during the same period. The discussions of racial discrimination by the streetcars in the District of Columbia began on February 27, 1863, when Charles Sumner raised the issue during the consideration of a measure that was designed to extend the charter of the Washington and Alexandria Railroad.⁵³ Noting that a member of the House of Representatives had reported an incident in which “an aged [Black] person had been excluded from cars and dropped in the snow and mud,” Sumner moved to amend the charter to provide that “no person shall be excluded from the cars on account of color.”⁵⁴ Republican Senator Timothy O. Howe of Wisconsin asserted that the amendment did nothing more than restate existing law.⁵⁵ Nonetheless, after an extremely brief debate, Sumner’s proposal passed on a vote of nineteen to seventeen.⁵⁶

The following year, another incident provided the impetus for a renewed focus on the treatment of Black people on the streetcars serving the District of Columbia. In February 1864, Major A.T. Augusta, a Black surgeon in the Union army, attempted to board a car on a street railroad in the city.⁵⁷ Augusta was informed that he was not allowed to ride inside the car, but instead would have to ride with the driver in front of the car.⁵⁸ When Augusta refused to follow these instructions, he was ejected from the car.⁵⁹

Against this backdrop, emphasizing the fact that the person who had been ejected from the streetcar had been an army officer, on February 10, Sumner submitted a resolution that called for the Committee on the District of Columbia to consider “the expediency of providing by law against the exclusion of [Black] persons from the equal enjoyment of all railroad privileges” in the city.⁶⁰ Objecting to the motion, Democratic Senator Thomas T. Hendricks of Indiana observed that “[i]t seems to be a matter of great outrage that the [Black people] of the District of Columbia are not allowed to take their seats in the same cars as the white men and women who travel on the railroads of this city” and declared, “If I were to express any opinion on the subject, I should say the outrage would be the other way.”⁶¹ However, the Republican members of the Senate did not share this sentiment, and Sumner’s resolution was passed on a straight party-line vote.⁶²

Two weeks later, in an effort to address the issues that had given rise to the resolution, Republican Senator Waitman Willey of West Virginia submitted a brief report on behalf of the committee.⁶³ The report stated simply that, in the opinion of the committee members, in the absence of specific authorization to discriminate on the basis of race in the charter of the railroad company, “[Black] people are entitled to enjoy all of the privileges [associated with riding on the railroad] which any persons have, and to all of the remedies for any denial or breach of such privileges which belong to any other persons,” and for that reason declined to recommend any further legislation dealing with the issue.⁶⁴ After receiving assurances from Willey that the members of the committee believed that Blacks had the same legal right as whites to ride on the railroads,⁶⁵ Sumner declared that he was, “for the present, satisfied.”⁶⁶

Despite this declaration, it soon became clear that Sumner was determined to continue his efforts to explicitly establish the right of Black people to have equal access to the local transportation system in the District of Columbia. In March 1864, while the Senate was considering a bill designed to incorporate the Metropolitan Railroad Company, Sumner once again introduced an amendment that would have prohibited the railroad from excluding Black people “from any car.”⁶⁷ Sumner asserted that his amendment was simply designed to bring the bill “into harmony” with the bill incorporating the Washington and Alexandria railroad.⁶⁸ Three months later, Sumner sought to have a similar provision added to the charter of the Washington and Georgetown Railroad—the same company whose practices had been investigated by the committee in February.⁶⁹

Unlike the measure that had been adopted the previous year, these proposals provoked intense discussions. Democratic Senator Willard Saulsbury of Delaware opened the debate in March by defending the practice of segregating passengers by race and asserting that the Sumner amendment was simply part of a broader campaign that was designed to produce “social and political equality among the races.”⁷⁰ By contrast, Democratic Senator Reverdy Johnson of Maryland repeated the claim that the amendment was superfluous, arguing that, in the absence of some explicit authorization by Congress, the railroads had no right to exclude free Blacks from any car that was open to white people in any event.⁷¹ Lyman Trumbull took a similar position, declaring, “I am willing to go for any measure that will accomplish good” while at the same time asserting that “the right of [Black people] to ride in the cars upon the city railroad[s] is not affected in the least by the [Sumner proposal].”⁷² However, Sumner remained unmoved. While conceding that Johnson’s description of existing legal principles was correct in the abstract, Sumner observed that the rights of Black travelers had been called into question by the treatment of Major A.T. Augusta.⁷³ Ultimately, despite opposition from Trumbull and some of his like-minded Republican colleagues, Sumner prevailed by the narrowest of margins in both cases.⁷⁴

As time progressed, Sumner’s position gained increasing support within the Republican party. By February 1865, a number of the Republican senators who had opposed Sumner in 1864 had apparently changed their views, and a motion that extended the prohibition embodied in the Metropolitan charter to all streetcars in the District of Columbia was passed on a vote of twenty-six to ten.⁷⁵ After some discussion, the House of Representatives acceded to the position of the Senate on this issue.⁷⁶ Thus, by the spring of 1865, the vast majority of mainstream Republicans had taken the position that common carriers should be expressly prohibited from segregating their passengers by race.

In short, the evidence clearly indicates that, in the mid-1860s, the Republicans in Congress had not only made a conscious decision to create and maintain a segregated school system in the District of Columbia but that they also believed that the issues arising from racial segregation by common carriers were fundamentally different from those that might be associated with racial segregation in public schools—a view that was diametrically opposed to that which would later be expressed by Charles Sumner during the discussions of the Civil Rights Act. Of course, as commentators such as McConnell and Stephen Calabresi and Michael Perl have pointed out, since by their terms the strictures of Section 1 do not apply to the actions of the federal government, from a purely formal perspective Congress could have proposed the Fourteenth Amendment without fear of undermining the structure of the school system that had been created in the District of Columbia.⁷⁷ But at the same time, the claim that the decision in Brown can be defended in originalist terms is defensible only if one believes that the Republicans in Congress made a conscious decision to adopt language that was generally understood to prohibit the governments of both the northern and southern states from making the same policy decision that the Republicans themselves had made only two years before and implicitly reaffirmed almost immediately after Congress voted to adopt the Fourteenth Amendment. Such a position would be difficult to defend even if one had no other contemporary evidence of the original meaning of the Fourteenth Amendment. In fact, however, the position taken by McConnell and like-minded commentators is also undermined by comments made by Republican Senator Jacob M. Howard of Michigan during his speech introducing the Fourteenth Amendment to the full Senate on May 23, 1866.⁷⁸

For a number of reasons, any serious effort to understand the original meaning of the Fourteenth Amendment must play close attention to Howard’s description of the import of Section 1. First, Howard was the only member of either the Senate or the House of Representatives who made an effort to provide a detailed analysis of the meaning of Section 1 during the discussions that culminated in the passage the Fourteenth Amendment. Second, Howard was not speaking only in his individual capacity but also acting as the official spokesperson for the Joint Committee on Reconstruction, which had drafted the amendment. Finally, the speech was plainly not designed to convey the subjective intentions of the drafters. Instead, Howard, a trained attorney whose legal abilities were greatly respected,⁷⁹ was describing the manner in which he believed that the relevant language would be interpreted by the courts. While that description did not explicitly refer to the issue of racial segregation in public schools, the principles underlying Howard’s response to the claim that Section 1 would require states to allow Black people to vote are equally relevant to the analysis of the argument that the decision in Brown can be derived from the original meaning of the Fourteenth Amendment.

In 1866, most mainstream Republicans believed that Black people should be enfranchised.⁸⁰ Nonetheless, the Republican members of the Joint Committee on Reconstruction had been deeply divided over the question of how best to address this issue in the Fourteenth Amendment itself. At one point, a majority of the members of the Joint Committee voted to report a proposal that would have provided that, after the year 1876, “no discrimination shall be made … as to the enjoyment by persons of the right of suffrage, because of race, color, or previous condition of servitude.”⁸¹ However, it quickly became clear that such a prohibition would be unpopular with crucial centrist voters.⁸² Faced with this reality, the committee voted to remove the suffrage provision from the amendment that was ultimately reported to the House of Representatives and the Senate for consideration.⁸³ Instead, the proposal that was reported contained only a provision that penalized states that did not allow African Americans to vote by reducing the number of representatives to which those states would be entitled in the House of Representatives.⁸⁴

Despite this action, the opponents of the proposed constitutional amendment continued to charge that the right to vote was one of the privileges or immunities of national citizens that was guaranteed by Section 1 and that, if adopted, the Fourteenth Amendment would therefore impose a mandate similar to that which had been embodied in the deleted suffrage provision.⁸⁵ While admitting that he personally would have preferred that the suffrage provision had not been deleted,⁸⁶ Howard felt compelled to respond to this charge.

In defending the view that Section 1 would in no way limit the authority of the states to regulate voting rights, Howard did not make any specific reference to the distinction between political rights and civil rights that is frequently discussed by modern commentators. Instead, in an apparent effort to provide greater clarity to give a more precise meaning to the concept of “civil rights,” to which other Republicans often referred, he distinguished sharply between “fundamental rights [that] lie at basis of all society” and those that are derived from “positive local law,”⁸⁷ thereby prefiguring the argument that Lyman Trumbull would make five years later during the debate over Sumner’s Civil Rights Bill. Against this background, Howard insisted that Section 1 did not limit state authority to regulate elections because the right to vote was “merely the creature of law.”⁸⁸

This mode of analysis has profound implications for the claim that Brown can be squared with originalist theory. Like the right to vote, public education exists only because taxpayer-supported schools have been created by state law, and because public education is “merely the creature of law,” under Howard’s theory, any claimed right of access to such education would be outside the purview of Section 1. Thus, Howard’s interpretation of Section 1 was fundamentally inconsistent with the view that the Privileges or Immunities Clause was designed or originally understood to outlaw racial segregation in public schools.

If credited, Howard’s assessment of the scope of Section 1 would be equally devastating to originalist justifications for Brown that focus on the original meaning of either the Due Process Clause or the Equal Protection Clause. However, at least when considered in isolation, the arguments made by Akhil Amar and Kurt Lash stand on a different footing. Both Amar and Lash argue that the position taken by the Court in Brown can be derived from the original meaning of the Citizenship Clause, with Lash relying specifically on the reference to state citizenship.⁸⁹ Since the Citizenship Clause was added to Section 1 after Howard made the speech that described his view of the scope of the Fourteenth Amendment, Howard could not have been referring to the scope of that clause when he spoke on May 30. Nonetheless, from an originalist perspective, the arguments put forth by Amar and Lash are ultimately no more persuasive than those of commentators who rely on the other clauses in Section 1 to justify the constitutional ban on racial segregation in public schools.

Unless a person believes that segregation was outlawed by one of the other clauses in Section 1, an originalist can rely on the Citizenship Clause to support the result in Brown only if he can show that, if given its original meaning, that clause would have fundamentally changed the nature of the rights that are embodied in Section 1. However, on its face, the clause simply appears to describe the class of people who are entitled to claim the “privileges or immunities” of citizens of the United States or (in the case of the State Citizenship Clause), the protections of the Comity Clause rather than purporting to define the set of rights that are associated with membership in that class. Moreover, this interpretation derives strong support from the legislative history of the Citizenship Clause.

Before the Citizenship Clause was adopted, at the beginning of Jacob Howard’s description of the import of Section 1, Howard noted that the Privileges or Immunities Clause by its terms granted rights only to to citizens of the United States.⁹⁰ While observing that “it is not … very easy to define with accuracy what is meant by the expression ‘citizen of the United States,’” Howard also stated that courts had held that the term referred to people who “were born in the United States and subject to [its] laws,” as well as those naturalized after birth, and that state citizenship had been determined by analogous standards.⁹¹ He asserted that the same criteria would be used to identify the class of people who could claim the protections of the Privileges or Immunities Clause.⁹²

However, Republican Senator Benjamin Wade of Ohio contended that the group who could claim the protection of the Privileges or Immunities Clause should be defined more explicitly. Although noting that he himself agreed that all persons born within the United States should be viewed as citizens of the United States, Wade observed that decisions such as Dred Scott⁹³ had “thrown [doubt] over that subject.”⁹⁴ Therefore, in an effort to remove any uncertainty about the scope of the Privileges or Immunities Clause itself, Wade argued that Section 1 should provide that states would be prohibited from abridging the privileges or immunities of “persons born in the United States or naturalized by the laws thereof.”⁹⁵ However, a subcommittee composed of the five Republican senators who were members of the Joint Committee on Reconstruction chose instead to propose the text of what became the Citizenship Clause.⁹⁶

Once again, Jacob Howard served as the official spokesperson of the group that proposed the relevant language. Howard stated that the addition of the Citizenship Clause was designed to address this problem that Wade had identified by “settl[ing] the question of citizenship and remov[ing] all doubt as to what persons are and are not citizens of the United States” and that the clause was “simply declaratory of existing law.”⁹⁷ In addition, after Senator James Doolittle of Wisconsin claimed that the Citizenship Clause had been proposed because Republicans had doubts about the constitutionality of an analogous provision of the Civil Rights Act,⁹⁸ Howard responded by declaring that the clause had been put forward because “we desired to put this question of citizenship and the rights of citizens under the civil rights bill beyond the legislative power [of those] who would [repeal the Civil Rights Act].”⁹⁹

Particularly when taken together, these statements undermine the claims of commentators who argue that, at time that the Fourteenth Amendment was proposed and ratified, the Citizenship Clause was designed to dramatically expand the scope of the rights created by the other parts of Section 1. Instead, Howard’s comments paint the picture of a clause that was understood to describe the characteristics of the group of people who were entitled to invoke the protections of the Privileges or Immunities Clause—nothing more and nothing less.

The comments made by opponents of the Fourteenth Amendment implicitly evince a similar understanding of the significance of the clause. During congressional consideration of the other provisions of the Fourteenth Amendment, those who opposed the amendment frequently criticized what they characterized as the nature and extent of the rights that were embodied in Section 1. For example, Democratic Representatives Andrew Rogers of New Jersey and Benjamin Boyer of Pennsylvania complained that Section 1 would constitutionalize what Rogers described as “that outrageous and miserable civil rights bill,”¹⁰⁰ while Democratic Senator Reverdy Johnson of Maryland described the Privileges or Immunities Clause as “quite objectionable … because I do not understand what will be the effect of that.”¹⁰¹ If the Citizenship Clause had been understood to expand the reach of the amendment in the manner suggested by Amar and Lash, one would expect the Democrats and conservative Republicans who had criticized the scope of Section 1 generally to have raised similar objections to this provision as well. However, despite the fact that the wording of the Citizenship Clause as a whole was discussed in far greater detail than any of the other parts of Section 1, none of those who opposed the wording of the clause suggested that their problem with the clause was that it unduly expanded the nature of the rights of people of color generally. Instead, their complaints focused on the identity of the groups that would be granted citizenship by the clause, most notably certain groups of Native Americans¹⁰² and the children of Chinese immigrants.¹⁰³

The bottom line is that the claim that the decision in Brown can be justified in originalist terms is refuted by the historical evidence. To defend the position by scholars such as McConnell, Amar, and Lash, one would have to argue not only that the drafters and ratifiers of the Fourteenth Amendment endorsed a provision that would have been understood to condemn their own policy judgments, but also that the person who was charged with the task of presenting the Fourteenth Amendment to the Senate completely misstated the import of Section 1. The task of defending either position separately would create significant difficulties for any person who sought to argue that maintenance of segregated schools violated the original meaning of Section 1. To convincingly argue that both contentions are correct is virtually impossible. Thus, the originalist argument for Brown is simply implausible.