Yeah the explicit purpose of the 14th amendment was to correct disparate treatment on race. If you go by the 14th amendment though and the original intent[SUP]1[/SUP] then it's difficult to reconcile it with school desegregation. Nearly nobody (even the radical Republicans) thought that the 14th amendment should desegregate schools as it was nearly unanimously shot down when it came up again with the Civil Rights Acts of the 1870's.[SUP]2[/SUP]
If you just look at the text and not the purpose there is perhaps a better argument that it is a broad amendment, but I would not advocate for this as I stated earlier I'm not a fan of just taking the text as the answer and then proceeding from there.[SUP]3[/SUP]
I agree more with a process argument (representation-reinforcement model) which was proposed by Ely in which the role of the judiciary is to play referee. The goal of the judiciary here isn't to enact policies more in line with one political party or ideology but rather to ensure that nobody is disparately or unfairly impacted by the rules (i.e. laws). This does a decent job of reconciling the decision in Brown while shooting down things which might be considered as overly activist by judges. It's more about process than outcome in this model.
Either way I just find originalism overly simplistic because there are portions of the Constitution which are at tension with one another.[SUP]4[/SUP]
1. Most originalists, Scalia included, would say that they are not searching for "original intent" in constitutional interpretation but "original meaning." "Intent," as applied to collective body, is a misnomer--it's a meaningless concept to ask what a collective body "intended." "Meaning," on the other hand, is an objective determination that can be evaluated by studying the congressional record, contemporary dictionaries, case law, etc. The word "intent" is often thrown around carelessly (present company included), but that's not really what we are after.
2. "Meaning" can be pitched at different levels of generality. One the one had, we could ask "would a contemporary interpretation of the text have led to school desegregation?" That's obviously a specific level of meaning. On the other hand, we could ask the more general question of "would a contemporary interpretation of the text have resulted in a principle of racial equality that should now lead to school desegregation." In this way, Brown can be reconciled with originalism despite the fact there is evidence that the contemporary meaning of the 14th Amendment would not have prohibited segregation.
3. I'm not aware of any originalists who focus exclusively on the text. Textualism is a method of statutory interpretation, but not constitutional. That said, it is probably true that originalists tend to focus on the text more than those who adhere to other methods of interpretation, but that's because the inquiry of originalism is to determine the original meaning of the text.
4. What do you have in mind? And why would looking for the original meaning in the case of constitutional provisions in tension with one another be any worse than any other method of interpretation?
Finally, isn't your point about the difficulty of constitutional amendment really an argument in favor of a conservative constitutional jurisprudence? If the SCOTUS creates a right that we the people think shouldn't exist, there is nothing legislative that can be done about it. We'd have to amend in order to correct the error. If, on the other hand, the SCOTUS doesn't create a right that we the people think should exist, we can always enact a law protecting that right, and with much less burden than amending the constitution. The consequences of error are much less difficult to overcome with a conservative judicial philosophy.
