I don't agree with those that argue original intent in terms of the Fourteenth Amendment. I don't even think most Originalists argue for original intent. I don't consider original intent when looking at the Constitution. I view textualism as paramount.
The Equal Protection Clause is both broad and powerful in its protection of rights and liberties. The Founders could never have conceived of what happened during the Civil War and what transpired after. With that said, the Fifteenth Amendment does consider race in the text. I strongly object to those that say the Fourteenth only apples to race. If it did, it would say so.
That's partly why I view Obergefell v. Hodges as one of the most important cases with respect to the Fourteenth Amendment. There are those that argue that it leads to something else. I do not agree.
It's taken me a number of days to think of a reply to this, and this is going to be a long post.
There is not exactly a whole, wide world of difference between Textualism and Originalism in terms of interpreting everything that is in the Constitution. With the vast majority of issues and cases being dealt with, Originalists and Textualists are very likely going to have
identical interpretations of the Constitution. That will be the case, most of the time, because it is certainly not the case that Originalists think and/or argue that
most provisions of the Constitution were intended to mean something significantly different than what they say. To Originalists, the text of the Constitution itself is frequently the main source of the intended meaning of the document, because with so very many provisions of the Constitution, there is little to no historical evidence that the intended meaning was any different than the text itself.
And it seems to me that Textualists and Originalists have a lot in common in terms of
why they advocate for these philosophies. They both want to limit the discretion of judges, to emphasize that judges must be careful to not become superlegislators, and that judges must avoid, as much as possible, legislating from the bench.
I think the biggest differences between Originalists and Textualists are mainly going to be in how the two groups interpret the Ninth Amendment and the clause which we have been discussing in this thread: the Equal Protection Clause.
For the last few days, I've been thinking of some questions I want to ask anyone who purports to be, strictly, a Textualist. I have thought of seven issues in which I think I know how a Textualist would interpret certain provisions of the Constitution, and I want to see whether you, or anyone other Atlas poster, agrees with my interpretion of Textualism. Again, these will be long, but I invite anyone's response to these seven issues: how many of these seven paragraphs do you agree with?
1) The first word of the First Amendment is "Congress," which of course means the national legislature, the federal government's legislature. "Congress shall make no law" is the beginning of a rule about what the federal government is not allowed to do. The last amendment in the Bill of Rights, the Tenth Amendment, says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," which means that the federal government has limited, enumerated powers and cannot act beyond those powers. The First and the Tenth Amendments are like bookends, with all of the rest of the Bill of Rights in between them. So the entire Bill of Rights is only binding on the federal government;
Barron v. Baltimore was, therefore, correctly decided. During the early-to-mid 19th Century, the federal government was only interested in enforcing the Bill of Rights on itself, and did not care to interfere with the actions of state or local governments that may have been violating the freedom of speech or of the press, or that may have, like in the
Barron case, not provided compensation to anyone when the state or local governments had confiscated -- or ruined -- personal property. If people had complaints about what their state or local governments were doing to them, such as imposing cruel and unusual punishments, their only recourse was in the state courts, not the federal courts. State courts could certainly address whether state and local governments are violating rights protected by Bills of Rights in each state's respective state constitution, but the federal courts would not do so. So per the text and structure of the entire Bill of Rights in the United States Constitution, it is a correct interpretation of the Constitution that the Bill of Rights is only binding on the federal government. (The Fourteenth Amendment may reverse
Barron v. Baltimore, but whether that's correct or not is going to be addressed later.)
2) In the Bill of Rights, there is no provision at all that says "a wall of seperation between church and state." Regarding religion, the First Amendment only says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Textually, there is no reason to read the Establishment of Religion Clause any broader than that it is simply a rule that the federal government shall not adopt an official religion. In
Everson v. Board of Education, the Supreme Court went much further than that simple and limited rule. The Court stated in
Everson that the Establishment Clause prohibits Congress from "pass[ing] laws which aid one religion, aid all religions, or prefer one religion over another. ... No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. [The federal government cannot], openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against the establishment of religion by law was intended to erect 'a wall of seperation between church and state.' " But Thomas Jefferson's and James Madison's interpretation of the Establishment of Religion Clause is much broader than what the text of the First Amendment actually says, which is merely that there shall be no adoption of an official religion.
3) After the Free Exercise of Religion Clause, the next freedom that the First Amendment protects is the freedom of speech. "Speech" merely means pressing air through one's vocal chords and flapping one's gums. That's all. Of course, deaf people communicate with their hands -- sign language -- but in general, using your hands to perform actions is not at all the same thing as giving a speech. The Court has given "First Amendment protection" to various kinds of conduct that the Court decides is "expressive conduct," and that includes the action of burning the American flag, burning a cross, and wearing a black armband to school for the purpose of expressing opposition to a certain war. But these notions all go beyond what the First Amendment says, which is only that speech has to be protected. There is a famous, old saying that "Actions speak louder than words," but the First Amendment does not address all actions that have an expressive purpose; the Free Speech Clause just addresses speech -- pressing air through your vocal chords and flapping your gums (and in the case of deaf people, using sign language). People do not have, per the First Amendment, the right to burn flags, or to burn crosses, or to wear black armbands, or engage in any other conduct that judges might theorize as "expressive conduct."
4) Now let's return to the Fourteenth Amendment. There is a legal doctrine known as "Incorporation Doctrine" that holds that some or all principles in the Bill of Rights are "incorporated" into the Fourteenth Amendment and thus are enforced against the state and local governments, not just the federal government. This is completely appropriate and accurate, because the Fourteenth Amendment says, "No State shall make or enfoce any law which shall abridge the Privileges or Immunities of citizens of the United States." As Justice Hugo Black once wrote, in 1968, "What more precious 'privilege' of American citizenship could there be than that privilege to claim the protections of our great Bill of Rights?" The Supreme Court, however, has never "incorporated" all of the principles in the Bill of Rights into the Fourteenth Amendment. In 1884, the Court refused to force state governmens to use a system of Grand Jury indictment before prosecuting people for serious crimes;
Hurtado v. California, which was a murder case, was the case in which the Court said so. Later, in the 1937 case of
Palko v. Connecticut, the Supreme Court explicitly said that not all rights in the Bill of Rights are incorporated into the Fourteenth Amendment. Some rights are incorporated, but not all rights. The rights which were incorporated were deemed to be "fundamental" rights; rights which were "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed." This has been called "selective incorporation," and this interpretation is still the prevailing law even now. But this is wrong: under the text of the Bill of Rights and the Fourteenth Amendment, no rights are any more "fundamental" than any other rights. All rights in the Bill of Rights should be treated equally, and they all should be incorporated into the Fourteenth Amendment (as Justice Black always said).
Hurtado v. California should be overturned, and state courts should only be allowed to prosecute people "for a capital or otherwise infamous crime" after a Grand Jury has decided to indict each accused person. Likewise, state courts should be required to only conduct trials in and select jurors from the vicinity where the crime occurred per the Vicinage Clause of the Sixth Amendment (which, so far, has never been incorporated into the Fourteenth Amendment).
5) Also, regarding "Incorporation Doctrine," the Ninth Amendment says, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," and it is completely appropriate for federal courts to incorporate this into the Fourteenth Amendment as well. Although it will be difficult for courts to determine what are "rights ... retained by the people," it is nonetheless appropriate to do so, and forbid the states from violating unenumerated rights as well as enumerated rights. So cases such as
Griswold v. Connecticut, Roe v. Wade, and
Lawrence v. Texas were all correctly decided. And per the Ninth, people DO have a right to burn flags, to burn crosses, and to wear black armbands. It's the Ninth that protects these and other activities, not the First.
6) Yes, the text of the Equal Protection Clause is very, very broad. That text appears to prohibit any and all kinds of discrimination by state and local governments. You argue it should not be limited to just racial discrimination because the text does not say that. So I will say that if you approach the Equal Protection Clause literally, it prohibits literally all kinds of discrimination. All kinds. Absolutely everyone must be treated equally all the time, in all circumstances. Let me give you one example of how absurd this idea can be. State and local governments have decided to pass minimum wage laws, requiring all employers to provide for their employee's minimum economic needs. But employers are people too, and they have minimum economic needs too. Their minimum economic needs are that their employees should work diligently enough that they actually earn their wages. But no state or local governments have ever created any minimum productivity laws, imposing the rule on workers that they must provide for their employer's minimum economic needs. An attorney for state and local governments might argue that they have never tried to create minimum productivity laws because employers already have, obviously, the ability to simply terminate the employment of any worker who is not working diligently enough, whatever that may mean to the employer. But the court should reply to the state that employees also have the obvious ability to terminate their employment with their employers if they feel they are not being paid enough. Employers and employees must be treated equally. If a state or local government believes that employee's minimum economic needs must be protected by law, then said government also has to treat employers the same way. Creating a minimum wage law but not a minimum productivity law means that employers are literally being denied equal protection of the laws.
7) The Equal Protection Clause is explicitly directed against state governments, and only state governments. No clause has ever been adopted to require the federal government to treat everyone equally with its laws. It so happens that, during WWII, the Supreme Court decided to interpret the Due Process Clause of the Fifth Amendment that it requires that everyone must be treated equally. This idea is known as "reverse incorporation;" just like the Fourteenth Amendment incorporates the Bill of Rights, a provision within the Bill of Rights incorporates a clause unique to the Fourteenth Amendment. But this is utterly implausible. "Due process of law" and "equal protection of the laws" do not mean the same thing. As John Hart Ely wrote in 1980, incorporating the EPC into the Due Process Clause of the Fifth "is gibberish both syntactically and historically." ("Syntactically" means that a Textualist cannot agree with this interpretation, and "historically" means that an Originalist cannot agree with it either.) "Reverse incorporation" first appeared in constitutional law, as I said, during WWII, in particular, with the cases of
Hirabayashi v. United States, and the infamous
Korematsu v. United States. The Court decided, in those cases, that there is a rule, in the Constitution, that the federal government cannot treat people differently according to their national origin, but the rule was not absolute. The rule merely required the courts to apply a strict scrutiny standard when confronted with the federal government treating people unequally, and in those two cases, the Court decided that the federal government had a compelling reason to treat Japanese-Americans worse than all other Americans. It wasn't until
Bolling v. Sharpe, in 1954, that the Court decided both that the Due Process Clause of the Fifth requires the federal government to treat all races equally and that the federal government did not have a compelling reason to segregate the races in the public schools of the District of Columbia. Many years after that, in
Frontiero v. Richardson, the Court ruled that the Due Process Clause of the Fifth prohibits the federal government from affording lesser benefits to female members of the U.S. military than to males. And in recent years, the Court ruled, in
Windsor v. United States, that the Due Process Clause of the Fifth prohibits the federal government from treating married gay couples worse than married straight couples, striking down part of the federal Defense of Marriage Act. None of these conclusions, or any others that claim to infer equal protection of the laws from the Due Process Clause of the Fifth, are correct. There is not and never has been any rule that the federal government has to treat everyone equally. (So the federal government's minimum wage law is safe; it's just the state governments that can't discriminate against employers.)