In this essay, I will use Brown v. Board of Education, Topeka, KA (1954) as a case study to examine the common law approach to constitutional interpretation. I will analyze a parallel drawn from a string of cases that relate to cases from Plessy to Brown to illustrate that the common law approach is the best approach to yield the most constitutional and successful Supreme Court decisions. I will then define Dworkinian moralism and argue that its limitations—notably its denunciation as too “extreme” and its lack of public support, especially by judges—plagues it from being the best interpretive approach. Likewise, I will finally define the concept of originalism and argue that its major limitation—its inconsideration of changing times that mold the U.S. Constitution—makes it the weakest method of interpretation.
“The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.”
– Justice David Souter, Harvard University’s 359th Commencement Address
In 1954, Brown v. Board of Education, a case brought before the United States Supreme Court, questioned the validity of the “separate but equal” precedent introduced by Plessy v. Ferguson (1896) maintaining that “minors of the Negro race [sought] the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis.” The case was about Brown’s daughter who was unable to attend a school that was much closer for her to walk to because it was for whites only and she was black and therefore was required to attend a segregated school much farther away. Brown challenged the Court by arguing that his daughter’s equal protection rights were being impinged upon as a result of racial segregation. After much deliberation and reargument, the Court issued a unanimous decision holding that “in the field of public education the doctrine of ‘separate but equal’ has no place [because] separate educational facilities are inherently unequal” thereby putting an end to the precedent established by Plessy.
In The Living Constitution, author David Strauss writes that the Brown decision seemed lawless to some. He claims that people were skeptical about whether or not the Court possessed the right and legal basis to overrule a Supreme Court precedent and declare segregation unconstitutional, and whether or not their decision could be justified in “principle legal terms.” Strauss even extends his claims by saying that “Brown should just be viewed as a lawless but morally necessary decision.” Nonetheless, he asserts that “Brown’s status as a decision of unquestioned validity… is central to understanding American constitutional law” thereby arguing that the decision can indeed be justified by the concept of common law.
In deciding this case, I argue that the common law approach is the best method of interpretation to arrive at the most successful and constitutional holding. To illustrate this, Strauss asserts that a string of cases regarding privity of contract until its termination illuminate cases from Plessy to Brown regarding racial segregation until its termination. Such cases include Thomas v. Winchester (1852), MacPherson v. Buick Motor Co. (1916), and cases in between which dealt with the relationship between manufacturers and consumers regarding negligence and injury, respectively. Thomas established the privity of contract requirement which was the common law rule generally accepted by society that held that manufacturers would not be liable to those with whom they had no contract. Several cases proceeding that proved that the privity of contract requirement was weak and needed reform and it was eventually overridden in MacPherson more than sixty years later.
Strauss notes that this repudiation of the privity of contract requirement parallels desegregation. Like Thomas’s establishment of the privity of contract requirement, Plessy established a generally accepted “separate but equal” precedent that saw much backlash in proceeding cases. Consequently, like MacPherson’s repeal of the aforementioned doctrine, Brown repealed Plessy’s precedent and instilled a new one. Strauss notes that over the course of history, precedent that requires change will see change. In this specific case, he states that “the privity regime was no longer workable… [and] inherently dangerous.” In other words, he claims that over time, it is evident that certain precedent loses its value and, with changing custom, requires revolutionary alteration, if not termination. Notably, the “separate but equal” doctrine had become no longer workable and inherently dangerous to racial minorities and the overall progress of the nation. Furthermore, the concept of common law, where law is derived from precedent and changing custom, I argue, is the best method of constitutional interpretation. Common law uses doctrines already established by a judiciary and the public reactions to it over a period of changing custom to determine its faith. In the case of Brown, the old precedent established by Plessy was challenged during changing times and, once deemed unworkable and dangerous, overruled. Justice Souter, in a commencement speech made at Harvard University, stated that “the language of the Constitution’s guarantee of equal protection of the laws did not change between 1896 and 1954,” but what did change was the time period and public opinion towards segregation in most parts of the country. This illustrates that common law is the best method of interpretation because it focuses on creating law that is not merely drawn from the text nor the morale of the document and the judges, respectively, but is drawn from what the people need and desire over the course of a changing era.
While Strauss admits that “the Court was of course influenced by its views about the morality of segregation,” I argue that moral reading of the Constitution is a weak method of interpretation. Specifically, Dworkinian moral reading, a concept introduced by philosopher Ronald Dworkin, which proposes that “we all—judges, lawyers, citizens—interpret and apply these abstract clauses on the understanding that they invoke moral principles about political decency and justice” because the U.S. Constitution is written in “very broad and abstract language,” a noteworthy example being the First Amendment. Nevertheless, he claims that it is a very unsupported method of interpretation as judges themselves fail to publicly admit the use of their personal morality in deciding nation-changing decisions because it is “often dismissed as an ‘extreme’ view that no sensible constitutional scholar would entertain.” Dworkin himself argues that moral reading of the Constitution blurs the line between law and morality claiming that this method of interpretation molds law to rely on the moral convictions of the judges in a certain era, not the written law itself. As a result, Dworkin admits that judges attempt to deny the influence of morality in their decisions by pretending that “hard constitutional cases can be decided in a morally neutral way, by just keeping faith with the ‘text’ of the document.” He also states that judges at all levels question whether they even maintain the right to mold the Constitution and bring it “up to date,” so to speak. In all, Dworkinian moralism is a weak method of constitutional interpretation because it is portrayed as extreme and judges themselves fail to publicly endorse it as they often go to the extent of denying its influence in their decision-making.
I propose that the method of interpretation commonly referred to as originalism, which lawyers and scholars applied to Brown, is the weakest form of interpretation and has the strongest limitations. Northwestern University School of Law professor, Steven Calabresi, defines originalism as “the adherence to the original meaning of [the Constitution]” and notes that its mission is to promote the “rule of law, constitutionally limited government, and the separation of power.” In other words, originalists base case decisions on the intentions of those who framed the Constitution more than 200 years ago. Strauss comments on this saying that saying that Brown is unsupported and inconsistent with the original meaning and its decision would have ceased to exist had this method of constitutional interpretation been used.
Strauss does, however, admit that “originalists struggle to come up with explanations of how Brown is consistent with the original understandings.” It is indeed, I argue, very difficult to maintain a sensible explanation as to why we ought to decide cases based on what the Framers of the Constitution intended rather than what society has molded the Constitution to be making it a “living” document. For example, in the case of Brown, interpreting the 14th Amendment as a clause that still promoted segregation since it did not explicitly say that it ought to be forbidden and its Framers owned slaves themselves would not be publicly supported, let alone be a view held by a judicial majority. Instead, today’s interpreters prefer to change the levels of generalities which mold the 14th Amendment to extend to racial equality. Therefore, I argue that originalism is the weakest method of constitutional interpretation because it fails to account for the fact that times have changed and what the Framers envisioned for the nation in the 1700s is not the same vision for the nation today. Especially now, in a time where many consider the document to be “living” and shaped as time goes on, originalism seems to have no place in several Supreme Court decisions.
Furthermore, I maintain the argument that the common law method of interpretation is the best for judges to use in order to yield the most constitutional and successful decisions. It is evident that common law takes into consideration the changing of times and the ever-varying wants and needs of the American people. Dworkinian moralism and originalism both fail to be wholly successful in achieving the same constitutional holdings that the common law approach allows. Dworkin’s moral reading itself is too weak and lacks public and judicial support and sometimes legal basis as a judge’s moral convictions may be “extreme” and not always line up with that of the public’s and therefore does not yield the best decision for the nation. Likewise, originalism fails to account for changing times and therefore bases decisions on what the Framers intended for the nation, which, for the most part, is not justifiable nor workable today. Moreover, the common law approach, especially in Brown v. Board of Education, Topeka, KA (1954), yields the most constitutional and successful decisions over any other method of constitutional interpretation.
Calabresi, Steven G. “A Critical Introduction to the Originalism Debate.” Harvard Journal of Law & Public Policy 31, no 3 (2008): 875-97. Web.
Choper, Jesse H., et al. Constitutional Law. St. Paul, MN: West Publishing Co., 2011.
Dworkin, Ronald. Freedom’s Law: The Moral Reading of the American Constitution. Cambridge, MA: Harvard University Press, 1996. Print.
Souter, David H. “Harvard University’s 359th Commencement Address.” Harvard Law Review 124, no 2 (December 2010): 429-36. Web.
Strauss, David A. The Living Constitution. Oxford: Oxford University Press, 2010. Print.