View of Constitution

[MarkD]

I'm an originalist.

Here was a debate about originalism vs. evolving Constitution in 1966 that occurred between two Supreme Court Justices - one writing the majority opinion and one writing a dissent. The case was Harper v. Virginia Board of Elections. First I'll quote from the majority opinion:

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Then one of the dissenting opinions:

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The "original meaning" of the Constitution is what should control the judges' decisions about what it means, not the changing "notions" of the Justices' themselves.

[MarkD]

Both strands of jurisprudence are ultimately unsatisfactory. I think Jedediah Purdy of Duke Law (soon to be Columbia) recently expressed this beautifully. Obviously living constitutionalism produces less reactionary and equitable results for the vast majority of the American citizenry, as originalism is nothing more than a nonsensical vessel for reactionary legal sentiment, but judicial "updating" is similarly undemocratic.

Living constitutionalism does at least allow Brown v. Board of Education, whereas it's clearly unconstitutional under both original intent (Scalia and Bork's original attempt at mainstreaming the concept, which was laughed out of the academy) and original public meaning, despite Michael McConnell's laughable attempts to argue otherwise.

Justice Hugo Black -- the senior Associate Justice at the time of Brown -- also believed that the conclusion in Brown was consistent with the original intent of the Equal Protection Clause of the 14th Amendment. As he said in his dissenting opinion in Harper v. Virginia Board of Elections, ...

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[MarkD]

So we're back to being "original intent" originalists now that it's convenient, I see. Nevermind the fact that Scalia and all of the major Federalist Society players left this theory in the dust many years ago.

I think Michael Klarman rebutted these arguments pretty definitively in his 1995 Virignia Law Review piece; the legislative history of the Fourteenth Amendment itself makes this obvious. Opponents of the Amendment literally argued that it would desegregate schools, which many supporters denied on the record. The DC school system remained segregated until the 1950s.

And in no way was the "original public meaning" of the Amendment (the theory you're supposed to be articulating) understood in the 1860s to mean school segregation was unconstitutional.

This is no minor nitpicking, either. Your constitutional theory must sanction Brown to gain legitimacy; hence why originalists have so desperately tried to accept it despite its obvious fealty to living constitutionalism.

The 14th Amendment does not say that segregation is okay, it says that everyone must be treated equally. The Equal Protection Clause has always been interpreted to mean a requirement of racial equality. For example, in Strauder v. West Virginia, Justices who were familiar with why the 14th Amendment was adopted, referred to the Equal Protection Clause this way: "What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?"

To paraphrase the way Bork explained in his book The Tempting of America, litigation that attacked segregation for several years before Brown successfully proved to the Supreme Court that segregated public facilities were consistently treating blacks worse than whites. "Separate but equal" was proving to be false in legal records and precedents. Continuing to litigate segregated facilities was not going to make those facilities equal. The Court was faced with having to either continue to litigate endlessly to try to make countless facilities become equal for the races, or else "separate but equal" would have to be abandoned. When that is seen as the only two possible options, it is clear that the Court had to put an end to segregation, because equality is what is the Constitution, not a guarantee of equality.

Ask yourself what would the proposers and ratifiers of the Fourteenth Amendment would do if they had seen the many precedents which proved that segregated public facilities were not, in fact, equal.

[MarkD]

My "sort of originalism" is the same as what Prof. John Hart Ely described as "Interpretivism" (clause-bound interprevetism) in his classic book "Democracy and Distrust." Interpretivism holds that judges should interpret the words of the Constitution "with whatever interpretive help the legislative history can provide." Hugo Black was the quintessential interpretivist, Ely said.

"Justice Black and the interpretivist school have an inference, one that seems to find acceptance with friend and foe alike. Of course, they would answer, the majority can tyrannize the minority, and that is precisely the reason that in the Bill of Rights and elsewhere the Constitution designates certain rights for protection. Of course side constraints on majority rule are necessary, but as the framers wisely decided, it is saner and safer to set them down in advance of particular controversies than to develop them as we go along, in the context of the particular political problem and its accompanying passion and paranoia. It is also, the argument continues, more democratic, since the side constraints the interpretivist would enforce have been imposed by the people themselves. The noninterpretivist would have politically unaccountable judges select and define the values to be placed beyond majority control, but the interprevist takes his values from the Constitution, which means, since the Constitution was submitted for and received popular ratification, that they ultimately come from the people. Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves."

Bork was satisfied that "clause-bound interpretivism," in the way Ely was describing what that means, is synonymous with originalism. I also like Ely's version of "clause-bound interpretivism," and I disagree with Ely that it is "impossible" to be an adherent to that philosophy.

[MarkD]

This essay by Judge Learned Hand has had a big influence on me.

http://mtweb.mtsu.edu/cewillis/Hermeneutics/Hand%20How%20Free%20is%20a%20Judge.pdf

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[MarkD]

SteveRogers, it is crucial to bear in mind that there are varying levels of generality one can use when interpreting a clause like the Equal Protection Clause. The highest level of generality that one can infer from that clause -- all kinds of inequality are prohibited -- is impossible to take literally. That Clause has to mean something narrower than it literally says. There are so many kinds of inequality based on age in our laws that we can't begin to count them all. Once one realizes that -- inequality in all situations is impossible to ban -- one begins to make the generalization somewhat narrower.

In my estimation, the correct level of generalization to give the EPC is that it prohibits racial discrimination by state governments. With that level of generalization, numerous precedents such as Brown v. Board of Education and Loving v. Virginia are correctly decided cases. Those of us who consider ourselves originalists are comfortable with saying that the premise of racial equality and that racial classifications are inherently invidious are what the Clause was intended to address, and applying those premises to circumstances not foreseen by the people who adopted the 14th Amendment is completely logical.

But other generalizations, besides racial equality, have also been inferred from the Equal Protection Clause, by the SCOTUS and by scholars in the law schools, and I believe that to be a mistake. It's a mistake because it is unknown whether the proposers and ratifiers of the 14th Amendment intended these other generalizations, these premises, to be part of the rule they were adopting. Voting rights have been inferred from the EPC in numerous cases (including Bush v. Gore), but doing so makes the 15th, 19th, and 24th Amendments unnecessary. Equality between citizen and immigrant is a generalization that has been inferred a few times, but the 14th Amendment begins with a definition of citizenship; why adopt an amendment that, within two sentences, defines citizenship, but prohibits any advantages be given to citizens? The SCOTUS has not been very consistent about that topic.

SteveRogers, I sense you understand that the generalization of sexual orientation equality is not the kind of generalization the proposers and ratifiers of the 14th had in mind. So you have to generalize more broadly than that to fit Obergefell v. Hodges into the 14th Amendment. Like many others, you seem to be willing to generalize that the EPC is an attack on any kind of invidious discrimination -- meaning discrimination rooted in prejudice. As was said by the SCOTUS in 1938, "prejudice against discrete and insular minorities may be a special condition" that the democratic process cannot be trusted to handle correctly.

But I disagree with that theory. The ratifiers of the 14th Amendment were not asked to accuse themselves of being, generally speaking, xenophobic. The words they were asked to ratify, the Equal Protection Clause, are both extremely general and impossible to take literally. They have to mean something narrower than what they say. A responsible interpreter (and I think most Supreme Court Justices have not been responsible with the 14th Amendment) should give that Clause a meaning at a level of generality that they knew was intended.

[MarkD]

How do I make that leap (the EPC applies only to racial discrimination)? With a desire for judicial restraint. Ideologically neutral -- what's good for the conservative goose is also good for the liberal gander -- restraint.