View of Constitution

[IndustrialJustice]

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.

[IndustrialJustice]

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.

[IndustrialJustice]

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.

Bizarre response on many levels. You first to need to figure out what sort of originalist you are, because Bork's theory of original intent is dead. And for good reason: it's obviously problematic to center your search almost solely on what the (exclusively white male) writers of any given text in the early decades of America's history thought about anything.

Nothing you're saying really serves as a rebuttal. McConnell at least grapples with what happened in the 1860s and 1870s and offers the Civil Rights of 1875 as proof that the Congress of 1868 could not have thought school segregation was constitutional. But, again, original intent theory is dead, almost unanimously replaced by original public meaning.

[IndustrialJustice]

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.

To my knowledge, Hugo Black's jurisprudence basically has a constituency of zero on the courts, in the Federalist Society, or any other possible incubator of originalism, but I guess I respect this old-school approach.

But yeah, Hugo Black was not a historian. In fact, ideologically-driven lawyers generally make poor historians by design..

[IndustrialJustice]

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.

In your view, then, would it be constitutional with regards to the Thirteenth Amendment for a state to pass a law stating that married women are not allowed to enter legal contracts, work for pay, etc. without the permission of their husband, and also that their husbands have complete control of their earnings?

Because the Congress that passed the 13th, 14th, and 15th Amendments would tell you that those amendments would not ban such a law.

That’s actually not true. Look up the married women’s property acts. Things were changing by this point, and in fact the abolitionist and women’s rights movements worked hand in hand.

The MWPI had not passed in all states by this point, and indeed it took some several more decades.


Also, there's this quote (which actually is literally on the Wikipedia page for the MWPIs:

You must be logged in to read this quote.

Wouldn’t much of the property owning aspect by covered by the 14th Amendment, anyway? Was there any commentary on that at the time. I agree the 13th Amendment doesn’t seem to apply here.

Under an originalist point of view, it's clear that women are not protected from discrimination under the Fourteenth Amendment. Scalia said this explicitly.