The Conservative Movement’s Favorite Legal Theory Is Rooted in Racism

At least five justices on the Supreme Court identify as originalists, meaning they believe judges must interpret the Constitution as it was understood when ratified. Originalism is ascendant everywhere: on SCOTUS, on the lower courts stacked with Donald Trump nominees, in law schools and Congress and state legislatures. The Republican Party endorses originalism in its platform every four years. GOP politicians wield the doctrine to justify their own policies to attack those favored by Democrats. Progressive lawyers may fight and Democrats may gripe about it, but originalism is clearly here to stay.

All of which raises an important question: Where, exactly, did originalism come from? Its proponents frequently assert that it is a reaction to freewheeling liberal judicial activists imposing their own views on the Constitution through an approach often called “living constitutionalism.” In a groundbreaking article published in American Political Science Review, however, University of Chicago Ph.D. candidate Calvin TerBeek argues that modern originalism arose out of the backlash to Brown v. Board of Education, the landmark 1954 Supreme Court decision prohibiting public school segregation. TerBeek’s research—which spanned 14 archival collections, thousands of newspapers and magazines, and interviews with key players—all points in one direction: Originalism has fundamentally racist roots.

On Tuesday, I spoke with TerBeek about the link between opposition to desegregation and a theory that dominates the current Supreme Court. Our conversation has been edited and condensed for clarity.

Mark Joseph Stern: How did conservatives develop originalism as a weapon to combat Brown?

Calvin TerBeek: After Brown came down, conservatives developed a handful of different arguments against it. The first was, let’s revive interposition and nullification, which would let states ignore Brown. It was not simply Southern conservatives making this argument—elite intellectual conservatives were, too. But after Little Rock and James Meredith at Ole Miss, these conservatives start to realize they were not going to revive interposition and nullification because they’re obviously rooted in antebellum Southern slavery.

This is where Barry Goldwater’s 1960 book The Conscience of a Conservative comes in. Goldwater alights on this “original intent” idea that had been floating around saying that the 14th Amendment’s framers had no intent of creating integrated schools. He said, this is simply a constitutional principle—it’d be great if schools were desegregated, but unfortunately the Supreme Court can’t do that, because it’s not the original intent of the 14th Amendment’s framers. From then on in the 1960s, you really start to see the conservative movement, particularly intellectuals, the folks in the law schools, start to build this up into an academic theory.

You mentioned that the theory had been floating around for a while before it migrated to law schools. Where did it crop up first?

It was one of the main charges against Brown from the jump. But initially, the conservatives making these arguments were not elite legal academics. They were mostly media impresarios who opposed desegregation, like Dan Smoot, Clarence Manion, folks on National Review’s masthead, and politicians like Goldwater. You do have some less elite academics, as well as some state court judges and lower federal court judges, making these intent-based arguments. They would say, well the original intent of the framers was only to secure a few basic rights for Black people; they certainly never meant to have desegregated schools.

As it became taboo to make more racially explicit arguments, these conservatives moved toward treating this as a matter of first constitutional principles of interpretation. They’d say: Whether or not segregation is moral or immoral has nothing to do with the inquiry. We must simply look to what the 14th Amendment’s framers thought, and that’s simply what the law is. And so, what Chief Justice Earl Warren did in Brown is not only wrong, but illegitimate as law. By moving the terrain of the argument to what they called first constitutional principles, it was no longer immediately apparent that this theory is racialized. Brown’s critics could…

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