There was quite a dust up on the liberal interwebs yesterday when it was wrongly reported that Supreme Court Justice Antonin Scalia had declared he would have dissented in the landmark ‘Brown vs Board of Education’ case. As you may know the ‘Brown vs Board of Education’ decision was unanimous and it ended government sanctioned ’separate but equal’.

In truth, Scalia stated that he would have dissented from the majority in ‘Plessy v Ferguson’. ‘Plessy v Ferguson’ opened the way for Jim Crow and the institutionalization and reinforcement of racist laws and structures. Justice Scalia, a proud and vocal originalist said in the interview, “beginning with the text, it’s a text that prohibited racial discrimination.”

Not exactly. Now I am not any kind of Constitutional scholar, but I keep my pocket copy of The United States Constitution close by and have read our Constitution, in its entirety, several times. Nowhere do I see any text prohibiting racial discrimination prior to the passage of the Thirteenth, Fourteenth and Fifteenth amendments. In fact, in this magnificent document, I see the opposite.

Article I – Section IX : Prohibiting any laws or amendments ending slavery for 20 years (1808)
Article IV – Section II : The Fugitive Slave Act federalized the return of escaped slaves to their masters.

And then there’s the infamous “3/5 compromise” wherein black slaves were counted as “3/5 of a person” for purposes of calculating congressional representation. This decision outraged some anti-slavery Northerners, one of whom was then Governor of Pennsylvania, Robert Hunter Morris. Here is an excerpt recounting Morris’ ‘Curse of Heaven’ speech:

“He never would concur in upholding domestic slavery. It was a nefarious institution. It was the curse of heaven on the States where it prevailed. . . . Upon what principle is it that the slaves shall be computed in representation? Are they men? Then make them Citizens and let them vote. Are they property? Why is no other property included? . . .The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and S.C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their deearest connections and damns them to the most cruel bondages, shall have more votes in a Govt. instituted for the protection of the rights of mankind, than the Citizen of Pa. or N. Jersey who views with a laudable horror, so nefarious a practice.” Gouverneur Morris went on to contrast the prosperity and human dignity of free states and territories with “the misery and poverty” of slave states. Source

So, back to originalism. I simply do not understand it. We haven’t even explored the fact that our nation’s founders were intellectually elite and wealthy. Or the fact that women were nowhere to be found in our founding documents.

Many yell, demanding “their country back!” I for one want my country forward.

What say YOU?

MORE: Watch the entire fascinating Constitution conversation between Justices Stephen Breyer and Antonin Scalia. Scalia’s “Hitler built a great automobile” comment notwithstanding.