Reed v. Reed et seq.

[Geoffrey Howe]

There is a long line of Supreme Court cases about discrimination on the basis of sex in the 1970s. The foundational one is Reed v. Reed (7-0).

Does anyone here think they were wrongly decided? Looking back at this board, there seemed to be two posters, emsworth and A18, who adhered to a very rigid Hugo Black-like interpretation; they probably opposed them, but is there anyone still active who thinks them wrongly decided?

It might be worth looking through Rehnquist's dissents - he dissents in virtually all of them. But are there any grounds on which they can be thought of as erroneous other than 'the 14th Amendment was designed to protect black people'?

It seems to me that they were quite sound, but I'd be interested to hear.

[Geoffrey Howe]

I'm one of the people here who adheres to a narrow, "original intent" based interpretation of the Equal Protection Clause, and so I disagree with Reed v. Reed.

The only kind of discrimination that we know the Equal Protection Clause was intended to prohibit is racial discrimination. veryone has at least one race in their ancestry, and so everyone is protected by the principle of racial equality. It is appropriate to treat the Clause as if it prohibits discrimination based on "national origin" too, because as Rehnquist used to say, national origin is the "first cousin" of race.

We know that women didn't even have an equal right to vote at the time of the adoption of the 14th Amendment. And from the SCOTUS's own case law, the Court had never been interested in using the Equal Protection Clause to strike down laws that discriminated on the basis of sex for 100 years after the adoption of the 14th Amendment.

And by the time the Court did address Reed v. Reed, public opinion was already moving in favor of "women's lib." Reed v. Reed was handed down in 1971, the same year that the ERA was passed by the U.S. House of Representatives. During the course of the 1970s, the Court was rendering decisions that made adoption of the ERA unnecessary. The Court was going with popular opinion rather than against it. If the Court had merely deferred to each government accused of discriminating against women in those cases during the 1970s, the laws being challenged would have probably been eventually repealed by legislatures anyway.

I accept an originalist would have to take that position, but why did they write 'any person...equal protection of the laws' - a general principle - rather than something like 'on the basis of race' or 'any black person...equal protection?
It seems to me inevitable that it has to apply to classes beyond race.

Interestingly, Stevens said he thought the best interpretation of the Equal Protection Clause is that government has to behave impartially - i.e. 'good government', hence his view on justiciability of electoral districts.

[Geoffrey Howe]

I'm one of the people here who adheres to a narrow, "original intent" based interpretation of the Equal Protection Clause, and so I disagree with Reed v. Reed.

The only kind of discrimination that we know the Equal Protection Clause was intended to prohibit is racial discrimination. veryone has at least one race in their ancestry, and so everyone is protected by the principle of racial equality. It is appropriate to treat the Clause as if it prohibits discrimination based on "national origin" too, because as Rehnquist used to say, national origin is the "first cousin" of race.

We know that women didn't even have an equal right to vote at the time of the adoption of the 14th Amendment. And from the SCOTUS's own case law, the Court had never been interested in using the Equal Protection Clause to strike down laws that discriminated on the basis of sex for 100 years after the adoption of the 14th Amendment.

And by the time the Court did address Reed v. Reed, public opinion was already moving in favor of "women's lib." Reed v. Reed was handed down in 1971, the same year that the ERA was passed by the U.S. House of Representatives. During the course of the 1970s, the Court was rendering decisions that made adoption of the ERA unnecessary. The Court was going with popular opinion rather than against it. If the Court had merely deferred to each government accused of discriminating against women in those cases during the 1970s, the laws being challenged would have probably been eventually repealed by legislatures anyway.

I accept an originalist would have to take that position, but why did they write 'any person...equal protection of the laws' - a general principle - rather than something like 'on the basis of race' or 'any black person...equal protection?
It seems to me inevitable that it has to apply to classes beyond race.

Interestingly, Stevens said he thought the best interpretation of the Equal Protection Clause is that government has to behave impartially - i.e. 'good government', hence his view on justiciability of electoral districts.

No, it isn't "inevitable" that the Equal Protection Clause "has to" be applied to classifications other than race. Choosing to treat other classifications as if they are just as constitutionally unacceptable as racial classifications is just a subjective choice, and judges ought not to be making choices as subjective as that. What kind of guidelines would be used to determine which kinds of classifications in state laws are just as unacceptable as racial classifications? Would it be acceptable to virtually all of the men who participated in adopting the 14th Amendment that the federal judges, especially the Supreme Court, would be the one institution, in all levels of government, that would determine which classifications are just as unacceptable as racial classifications? Remember that when the 14th Amendment was adopted, the most recent major decision by the Supreme Court had been Dred Scott v. Sandford, which was a decision that was hated by virtually all of the Republicans at the time. After Dred Scott, why on Earth would the men who proposed and ratified the 14th want to delegate to the Supreme Court the power to determine which kinds of classifications should be treated like race?

I don't know why the congressional committee that drafted the words of the 14th Amendment did not mention race when they came up with their final draft version of the proposal. I have read scholarly research that explicitly said the first few draft versions of the 14th were going to use the word "race" in the Equal Protection Clause, but the last time the committee considered a proposal, the one they finally ended up with did not use the word "race." No one knows why the word "race" was ommitted at the last moment. But the fact that they did omit the word "race" is not an open invitation for federal judges to do whatever they want with the Equal Protection Clause. It should not be that.

Justice John Paul Stevens had his own unique way of interpreting the Equal Protection Clause which was very different than had ever been articulated by any other member of the Supreme Court. Stevens was a "lone wolf" in how he behaved as a Supreme Court Justice. Perhaps you would like to have all current and future Justices adopt the interpretation of the EP Clause that Stevens did, but if that's what you want, how do you go about making sure they do?

Well I'm not proposing cloning judges from the estate of Justice Stevens. But it still seems to me that the Equal Protection Clause expresses a broader principle, which should, of course, be interpreted cautiously, in a Harlan (II) type way. I struggle with this rigid interpretation of the Constitution à la Hugo Black (whether you want to call that textualism/originalism/interpretivism). John Harlan, it seems to me, wasn't a renegade activist judge even though he didn't follow your preferred method of interpretation. Now perhaps it's an American/British distinction, and interpretivism is more faithful to the idea of a written constitution.

[Geoffrey Howe]

I'm one of the people here who adheres to a narrow, "original intent" based interpretation of the Equal Protection Clause, and so I disagree with Reed v. Reed.

The only kind of discrimination that we know the Equal Protection Clause was intended to prohibit is racial discrimination. veryone has at least one race in their ancestry, and so everyone is protected by the principle of racial equality. It is appropriate to treat the Clause as if it prohibits discrimination based on "national origin" too, because as Rehnquist used to say, national origin is the "first cousin" of race.

We know that women didn't even have an equal right to vote at the time of the adoption of the 14th Amendment. And from the SCOTUS's own case law, the Court had never been interested in using the Equal Protection Clause to strike down laws that discriminated on the basis of sex for 100 years after the adoption of the 14th Amendment.

And by the time the Court did address Reed v. Reed, public opinion was already moving in favor of "women's lib." Reed v. Reed was handed down in 1971, the same year that the ERA was passed by the U.S. House of Representatives. During the course of the 1970s, the Court was rendering decisions that made adoption of the ERA unnecessary. The Court was going with popular opinion rather than against it. If the Court had merely deferred to each government accused of discriminating against women in those cases during the 1970s, the laws being challenged would have probably been eventually repealed by legislatures anyway.

I accept an originalist would have to take that position, but why did they write 'any person...equal protection of the laws' - a general principle - rather than something like 'on the basis of race' or 'any black person...equal protection?
It seems to me inevitable that it has to apply to classes beyond race.

Interestingly, Stevens said he thought the best interpretation of the Equal Protection Clause is that government has to behave impartially - i.e. 'good government', hence his view on justiciability of electoral districts.

No, it isn't "inevitable" that the Equal Protection Clause "has to" be applied to classifications other than race. Choosing to treat other classifications as if they are just as constitutionally unacceptable as racial classifications is just a subjective choice, and judges ought not to be making choices as subjective as that. What kind of guidelines would be used to determine which kinds of classifications in state laws are just as unacceptable as racial classifications? Would it be acceptable to virtually all of the men who participated in adopting the 14th Amendment that the federal judges, especially the Supreme Court, would be the one institution, in all levels of government, that would determine which classifications are just as unacceptable as racial classifications? Remember that when the 14th Amendment was adopted, the most recent major decision by the Supreme Court had been Dred Scott v. Sandford, which was a decision that was hated by virtually all of the Republicans at the time. After Dred Scott, why on Earth would the men who proposed and ratified the 14th want to delegate to the Supreme Court the power to determine which kinds of classifications should be treated like race?

I don't know why the congressional committee that drafted the words of the 14th Amendment did not mention race when they came up with their final draft version of the proposal. I have read scholarly research that explicitly said the first few draft versions of the 14th were going to use the word "race" in the Equal Protection Clause, but the last time the committee considered a proposal, the one they finally ended up with did not use the word "race." No one knows why the word "race" was ommitted at the last moment. But the fact that they did omit the word "race" is not an open invitation for federal judges to do whatever they want with the Equal Protection Clause. It should not be that.

Justice John Paul Stevens had his own unique way of interpreting the Equal Protection Clause which was very different than had ever been articulated by any other member of the Supreme Court. Stevens was a "lone wolf" in how he behaved as a Supreme Court Justice. Perhaps you would like to have all current and future Justices adopt the interpretation of the EP Clause that Stevens did, but if that's what you want, how do you go about making sure they do?

On a slightly unrelated note, since you seem to be very knowledgeable (far more than I) on these matters and interested in constitutional law, you may enjoy this book and series of lectures by a former UK Supreme Court Justice. He's also an academic historian and an all round civilised fellow:

https://podcasts.apple.com/gb/podcast/1-5-laws-expanding-empire/id318705261?i=1000439025138 (I don't think the BBC website works properly in the US)

https://www.amazon.co.uk/Law-Time-Crisis-Jonathan-Sumption/dp/1788167112/ref=sr_1_1?crid=1OYAQE0XUSOUE&dchild=1&keywords=law+in+a+time+of+crisis&qid=1617358267&s=books&sprefix=law+in+a+time+of+cri%2Caps%2C166&sr=1-1

(He strikes me as a Harlanite).

[Geoffrey Howe]

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.

I think you should consider original intent, but the difference between an originalist and non-orginalist is that that for the former it is sole thing to take into account.