Kagan's Curious Knowledge of History

Interesting little vignette from yesterday's hearings. Ms. Kagan tells us that there are two ways to change the Constitution: amendments and SCOTUS decisions.

KAGAN: "The 14th Amendment was an enormous break after the Civil War, and — and created a different Constitution for America. So partly the changes come in that way.

But — but partly, they — they come outside the formal amendment process, as well. And what you said about Plessy and — and Brown is absolutely right. That if you look at the specific intent of the drafters of the 14th Amendment, they thought that the 14th Amendment was perfectly consistent with segregated schools.

I mean, you just have to — you can’t really argue otherwise as an historical matter.

But in Brown, the court said otherwise. And, you know, step by step by step, decision by decision, in large part because of what Justice Marshall did, you know, we got to a place where the court said it’s inconsistent with the principle of equal protection of the laws that the drafters of the 14th Amendment laid down; is inconsistent with that principle to have segregated schools.

So — so that’s the way in which change can happen, as well.

You will note that Ms. Kagan (curiously) forgot all about Plessy in that last graf-and-a-half.

SEN. CORNYN:

You cited Brown v. Board of Education as an example of a court decision that changed the Constitution, stating that the framers of the 14th Amendment believed it allowed segregation in its schools.

I believe — and I think a number of prominent legal scholars agree — that Brown did not change the Constitution. Rather, I believe Brown affirmed and restored the original meaning of the 14th Amendment by overturning the repugnant and constitutional separate but equal regime sanctioned by Plessy v. Ferguson.

And so I support Brown on originalist grounds. I would just refer to you, Senator Charles Sumner, a leading framer of the 14th Amendment, who said it’s easy to see that the separate school founded on an odious discrimination, and sometimes offered as an equivalent for the common school, is an ill-disguised violation of the principle of equality.

And between 1870 and 1875, both houses of the United States Congress voted repeatedly by significant margins, majorities, in favor of legislation premised on the theory that segregation of the public schools is unconstitutional.

So, in light of this history, I believe that Brown did not change the Constitution, but rather realigned the interpretation of the 14th Amendment with the intentions of the framers of the 14th Amendment.

There is a good reason that Ms. Kagan "forgot" about Plessy in her meandering.

SCOTUS' decision in Plessy was wrong, as Sen. Cornyn makes clear. It was not only odious on its face; it was clearly in violation of the 'original intent' of the 14th Amendment.

The implication is clear: had SCOTUS stuck to the original intent, Brown would not have been necessary.