A Valiant Attempt to Make Originalism a Liberal Judicial Philosophy
On the morning of July 14, 1967, Thurgood Marshall began his second day of Supreme Court confirmation hearings by preparing to confront questions posed by Senator Sam J. Ervin Jr. of North Carolina. This prospect seems unlikely to have been a pleasant one. After thirteen years in Washington, Ervin’s foremost achievement remained his role in drafting the document that had formally been styled a Declaration of Constitutional Principles, but that almost instantly became known as the Southern Manifesto. That document, which drew support from the overwhelming majority of Southern congressmen and senators, denounced the Supreme Court’s decision in Brown v. Board of Education as an abuse of judicial authority. “This unwarranted exercise of power by the Court, contrary to the Constitution, is creating chaos and confusion in the States principally affected,” the politicians complained. “It is destroying the amicable relations between the white and Negro races that have been created through ninety years of patient effort by the good people of both races. It has planted hatred and suspicion where there has been heretofore friendship and understanding.”
As the attorney who led the winning legal team in Brown, Marshall shouldered no small amount of the burden for this precipitous decline in race relations. It must have come as little surprise, then, that Ervin’s questioning demonstrated marked hostility toward Marshall’s nomination. But by 1967 Brown was sufficiently well on its way toward canonization that Ervin avoided directly asking Marshall about segregation in public schools, and instead concentrated his attention on the Warren Court’s decisions protecting criminal defendants.
But lurking not very far beneath the surface of Ervin’s questioning of Marshall was the Southern Manifesto’s primary objection to Brown: that the decision defied constitutional originalism. “The original Constitution does not mention education,” the Southern Manifesto noted. “Neither does the Fourteenth Amendment nor any other amendment. The debates preceding the submission of the Fourteenth Amendment clearly show that there was no intent that it should affect the system of education maintained by the States.” One need not listen especially hard to hear echoes of this notion in a question that Ervin pitched to Marshall at the hearings: “Is not the role of the Supreme Court simply to ascertain and give effect to the intent of the framers of this Constitution and the people who ratified the Constitution?” Although Ervin’s query was freighted with jurisprudential implications, Marshall’s response deftly sidestepped the danger. “Yes, Senator,” Marshall replied, “with the understanding that the Constitution was meant to be a living document.”