To the Editor:
Re “From 19th-Century View, Desegregation Is a Test,” by Adam Liptak (Sidebar column, Nov. 10):
The question originalists like Justice Antonin Scalia should be asking is not whether the framers of the 14th Amendment believed themselves to be doing away with segregated schools, but rather whether the framers intended their language to be flexibly interpreted over time based on emerging understandings and sensibilities.
Questions about whether specific scenarios occurred to 18th- and 19th-century drafters inherently skew toward rigidly narrow interpretations of the Constitution.
It’s the meta-question—what was the original understanding about the document’s adaptability from one generation to the next?—that we should home in on.
Alani Golanski
New York, Nov. 10, 2009
The writer is a lawyer.
Note from KBJ: Be careful what you wish for. It may turn out that the framers did not envision a "living Constitution," or that only some of them did, or that only certain constitutional provisions, such as the Eighth Amendment's prohibition of "cruel and unusual punishments," were intended to be "flexibly interpreted." I doubt that any framer intended for the Constitution to be interpreted in accordance with whatever sentiments happen to prevail either in society generally or among judges specifically. If this were the intention, why would the Constitution not simply read, "Do what you think best"?
Note 2 from KBJ: The following three propositions are inconsistent:
1. If originalism is true, then Brown v. Board of Education (1954) was wrongly decided.
2. Originalism is true.
3. Brown v. Board of Education (1954) was not wrongly decided.
Everyone must reject at least one of these propositions. Critics of Justice Scalia reject 2. They think Justice Scalia must reject 3, but he can avoid contradiction by rejecting 1. It's also possible to reject 3, which will, of course, make progressives gasp. But the Constitution can be amended. If racially segregated education is wrong, then the American people can amend the Constitution to prohibit it. The Court in Brown short-circuited the amendment process. In law as in life, the end does not justify the means. If I were Justice Scalia, I would bite the bullet and reject 3. (Bullet biting consists in sticking with one's theory [even] when it produces painful consequences.)
Keith Burgess-Jackson, J.D., Ph.D. 