Original Intent--As Perceived by Michael McConnell
![handle is hein.journals/illlr91 and id is 262 raw text is: Copyright 1996 by Northwestern University, School of Law Printed in U.S.A.
Northwestern University Law Review Vol. 91, No. 1
THE ORIGINAL INTENT-AS PERCEIVED
BY MICHAEL MCCONNELL
Raoul Berger*
[W]e must correct the judgment of posterity by that of the time1
Justice Oliver Wendell Holmes
Michael McConnell boldly asserts that the scholarly consensus
that Brown v. Board of Education was inconsistent with the original
understanding of the Fourteenth Amendment is wrong.'2 Since he
cannot locate that understanding in the history of the Amendment, he
seeks it as revealed in the debates over the 1875 act.'3 For centuries
original intention has meant the understanding of the draftsmen,
not that of subsequent readers. McConnell jettisons that history in
favor of a new-born creature of his exuberant fancy. First, I shall
brush in some history of original intention, next, demonstrate that
the Amendment left segregated schools untouched, and then examine
McConnell's proof, though not on his gargantuan-193 page-scale.
I. ORIGINAL INTENTION
A. English Foundations
John Selden, the preeminent seventeenth century scholar, said,
A [Person's] writing has but one true sense; which is that which the
author meant when he writ it.''4 Earlier John Locke had written,
[w]hen a [person] speaks to another, it is ... [to] make known [the
* Charles Warren Senior Fellow in Legal History, Harvard University. J.D., Northwestern
University, School of Law, 1935.
1 OLIVER WENDELL HOLMES, 1 HOLMES-PoLuOCK LET'rERS 183 (1946).
2 Michael W. McConnell, Originalism and the Desegregation Decision, 81 VA. L. REv. 947,
952-53 (1995). He lists: Raoul Berger, Ronald Dworkin, Richard Kluger, Earl Maltz, Bernard
Schwartz, Laurence Tribe, Thomas Grey, Donald Lively, Richard Posner, David Richards-not
to mention Bickel, Avins, Klarman, Bork, Thshnet, and countless others. Id. at 952. For
others, see Raoul Berger, Lawrence Church on the Scope of Judicial Review and Original
Intention, 70 N.C. L. REv. 113, 114 (1991).
3 McConnell, supra note 2, at 1120. The deliberations over the 1875 Act provide the best
evidence of what the Fourteenth Amendment was understood to mean on the question of segre-
gation. Id. at 1105. But McConnell acknowledges that the fact that in 1871 and 1875 a majority
of Congress considered such school segregation unconstitutional does not conclusively prove
that this was the predominant understanding of those who drafted and ratified the Amendment
in the period between 1866 to 1868. Id. And he attempts to account for three most troubling,
potential pitfalls in [his] analysis. Id.
4 TABLE TALK: BErNG THE DIscouRSEs OF JOHN SELDEN, ESo. 10 (1696).](ViewImageLocal?handle=hein.journals/illlr91&div=10&collection=&method=preview&ext=.png&size=3)
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Original Intent--As Perceived by Michael McConnell
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