Antonin Scalia in Warrensburg, part 4 (March 7, 2008)
[As an originalist how do you handle a case like Brown versus Board of Education 1954 where arguably the original understanding of the equal protection clause did not prohibit segregation in public schools?]
That is a very good question and it’s often asked. We, we originalists, uh, refer to this as, uh,”waving the, the bloody red shirt” of Brown versus Board of Education. Uh, there are two answers. Number one, and less important, I think I would have been with the majority in Brown because I think I would have been with, uh, Justice Harlan in Plessy. Plessy versus Ferguson, which was a case, uh, in the 19th century which held that the state of Louisiana could require blacks to ride in a separate railroad car….and the court said that was okay and Harlan dissented…I think I would have been with Harlan in Plessy so I think I would have been with the majority in, in Brown.
But that, that’s the less important answer. Look, I will stipulate…that you can do some good things with, uh, uh ignoring the Constitution. With the living Constitution letting the court, the judges make it up. I’ll stipulate. I mean kings can do stuff that democratic , uh, legislatures can’t achieve. So what? Does that prove that kings are better? A stopped clock is right twice a day. [laughter] I’ll grant you, that, that, that some things can be achieved but that isn’t the basis for judging it. Whether now and then it produces a result you like. You have to look at the whole system and say, “Is this the way a democratic society should govern itself?”
And the answer is, “No.”