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[WritOfCertiorari]

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.

[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.

[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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[Sestak]

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

You must be logged in to read this quote.

There is an issue with this, however. Pretty much all Congresses in the past have been strongly religious, to the point that they would have decided these things based first on their religious beliefs and only secondly on the text they had just passed. For instance, the Cowan quote below indicates Congress' belief that there was a "right of a husband to the service of his wife" that supersedes the Constitution. Any reading of "what would the legislature do" would have to include this "invisible right" as well. But this essentially would mean that each constitutional amendment also implicitly enshrines the religious beliefs of the Congress that passed it into the constitution. This, in my mind, is ridiculous.

[SteveRogers]

I think the originalism vs. living document debate presents a false dichotomy, especially when it comes to debating the 14th Amendment. Unlike a statute, a constitution is written as a set of broad principles for a reason. I do believe that the authors of the Constitution intended for the document to stand the test of time precisely by building in flexibility so that it could adapt to future situations the founders could never envision. Likewise, I believe that the authors of the 14th Amendment intentionally left us with a flexible, forward-looking tool.

Yes, the Equal Protection Clause was certainly intended specifically to ensure the rights of newly freed slaves. But a Constitutional Amendment is not a one-off fix. At the time of its ratification, the drafters knew they were adding something that would be a part of the Constitution forever after. If they wanted to draft something narrower, suited only to addressing the evils of racial discrimination in a specific set of circumstances, we know that they knew how to do that because they did precisely that with the 15th Amendment.

Instead, the congress passed, and the states ratified, the Equal Protection Clause which ensured that a state shall not "deny to any person within its jurisdiction the equal protection of the laws." If your focus is on the authors' original intent, then you must believe that those authors intended for their choice of words to matter, and it is inescapably clear that the authors of the 14th Amendment intentionally wrote that clause broadly. Therefore I find it perfectly consistent with the original meaning of that Amendment to read that clause as applying to a range of topics that the drafters never envisioned it applying to. Because they knew when they wrote it that they couldn't envision every form of invidious discrimination that might pop up in the future. Specifically with regards to racial discrimination, the drafters predicted, correctly, that the racists would get creative. The 15th Amendment's ban on race-based voting restrictions gave way to literacy tests, poll taxes, racial gerrymandering, etc. The abolition of slavery gave way to segregated trains, schools, etc. You can't pass a new Amendment every time someone invents a new form of discrimination, so instead the 14th Amendment's Equal Protection clause provided a tool for combating evils that might arise in the future.

So did the drafters of the 14th Amendment intend for that amendment to be the basis for legalizing gay marriage? Of course not. But they also didn't have all the information our society has today about the heinous effects of systematic discrimination against homosexuals. The fact that the authors of the 14th Amendment couldn't foresee a particular tool of oppression or the class of people that would be harmed doesn't mean that the 14th Amendment wasn't intended to apply to that situation. On the contrary, the 14th Amendment is one of the most important parts of our Constitution precisely because its original purpose was to serve as a flexible, forward-thinking tool.

TL;DR: The originalists' opposition to the broad application of the Equal Protection Clause is stupid if one considers that the original meaning of the 14th Amendment was to create a flexible tool to fight injustice. 

[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.

[SteveRogers]

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.

That's certainly true. It's also true of most other parts of the Constitution. The First Amendment says "Congress shall make no law ... abridging the freedom of speech." And yet we know that that can't mean literally no law because obviously you can't shout "fire" in a crowded theater. So the courts, in applying the law as set forth in the First Amendment, must develop manageable tests for applying that law and thus we get the legal doctrines such as the test for "direct incitement of imminent lawless action" and limits on regulations of commercial speech and so on and so forth.

I don't think there's anything absurd about reading the Equal Protection Clause as applying to all forms of unequal treatment even though it obviously wasn't intended to prohibit all disparate treatment. How literally the text of the EPC can be taken logically depends on both the basis for discrimination and the government's interest in said discrimination. The government does, and must, discriminate against different groups of people every day on the basis of categories such as age, criminal history, holding of a license, etc. And so I agree with the courts that those kinds of discrimination are allowed under the EPC so long as they bear a rational relation to a legitimate government interest. At the other end of the spectrum you have discrimination on the basis of race, which most people agree should almost never be allowed under the EPC. And so the courts developed the strict scrutiny test to handle the application of the EPC to this type of discrimination.

Now, it is one thing to disagree about what to do with all the categories of discrimination that fall in between. But you seem to have made the jump to reading the EPC as only applying to racial discrimination. How do you make that leap? Again, if the authors of the 14th Amendment wanted an Amendment that only addressed racial discrimination, they certainly knew how to do so because they did precisely that with the 15th Amendment. So why would they be so coy if that is what they meant when writing the 14th? Why instead choose to go with such broad and imprecise language?

I agree that the 14th Amendment's Equal Protection Clause cannot have been intended to be taken absolutely literally. But I think it is much more in line with the original intent to read that clause as implying some sort of balancing test as opposed to reading it so narrowly as to deprive it of any effect outside of the realm of discrimination on the basis of race. It strikes me as contradictory for the originalists to purport to give such broad deference to the original intent of the drafters of the 14th Amendment while in the same breath declaring that those authors made a mistake and didn't realize what they were doing when they chose such sweeping language.

[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.