Originalism’s Segregation Problem

Citizens United has filed an amicus brief in the DOMA case arguing that Bolling v. Sharpe was wrong, and hence the federal government is free to violate the equal protection of the laws (up to and including racial segregation.) [via]

The thing is that, in a sense, they’re right that from an originalist perspective reverse incorporation is clearly wrong. (A point that Scalia and Thomas are always careful to skate over without argument in affirmative action cases.) The problem is that this just shows that originalism is a bad method of constitutional interpretation, not that we should allow the federal government to have segregated schools. And there’s a deeper originalist problem with segregation, of course: not only Bolling but Brown are wrong from an originalist perspective. There’s more textual basis for Brown than for Bolling, but even so you can only make an originalist defense of Brown if you define constitutional principles at such a high level of abstraction that everybody’s an originalist. And the decision about where to stop on originalism’s ladder always ends up being pure politics, so that for Scalia the specific original meaning is ignored when it comes to both segregation and affirmative action but suddenly becomes relevant again when it comes to gender.

So my position on originalism is that since even the people who claim to like it won’t really apply it, those of us who find it normatively unattractive even in theory certainly shouldn’t be expected to.

89 comments on this post.
  1. Winchester:

    In 1965, LBJ introduced Affirmative Action as the “next and more profound stage of the battle for civil rights”.
    The new goal was “not just equality as a right and a theory, but equality as a fact and as a result.”

    Of course, he lied; he did not say that manufacturing equality required manufacturing inequality… Equal opportunity in the free market was traded for an equal result in a PLANNED RACIAL ECONOMY.

  2. Joe:

    Scalia said this regarding determining the meaning of the 4A:

    “we look first to the historical practices the Framers sought to preserve; if those provide inadequate guidance, we apply traditional standards of reasonableness.” [Arizona v. Gant]

    As you imply, this is wicked vague & allows for a lot of selectivity while assuring everyone how “dead” the Constitution is & how unlike those mean liberals, he isn’t making shit up.

    I also like the interests of the amici, since why would the “Gun Owners Foundation” or the “Western Center of Journalism,” to name two groups cited, care? Well, they are interested in the correct interpretations of the Constitution and federal statutes and oppose judicial usurpation.

    Anyway, Bolling didn’t invent the idea that “due process of law” has an equal protection component and cites a 19th Century case on the subject. It also noted that the two protections are not equal — there is assumed to be some ground restricted by the EPC not covered by due process alone. It is in effect assumed now that the federal component of equal protection is basically the same as the state, but that isn’t mandated by Bolling — segregation by race is an easier case. Also, the slaveowner 5A was no longer with us after the 13A and the Citizenship Clause of the 14A.

    This doesn’t erase that originalism is applied loosely to such a degree it is really living constitutionalism. Still, the case is sometimes taken too far by critics.

  3. oldster:

    You remember Schopenhauer’s complaint about how theologians argue that every effect must have a cause, but somehow let the principle lapse once they have arrived at their god?

    “The causal law therefore is not so accommodating as to let itself be used like a hired cab, which we dismiss when we have reached our destination….”

    These “Originalists” treat originalism like a hired cab. It gets them where they want to go, and then they dismiss it.

    (Though Publius’ ladder-image may be even better, as showing the detailed workings of the shell-game.)

  4. RSP:

    Yeah segregation and affirmative action will always be the death of originalism because a theory can’t reject Brown and be legitimate in modern eyes and their politics don’t allow support for affirmative action. The Second Amendment complicates their lives too but you can get around it by picking and choosing the evidence that counts.

    Of course there’s always McConnell’s idiotic attempt to get around this by relying on the Radical Republicans last stand in 1875 as showing what they really intended in 1866 even though that “intent” flatly contradicted both actions and statements of the earlier Congress.

  5. Joe:

    Yes, Graber or someone dealt with that attempt nicely. Some also pick and choose to show that Loving is nothing special either.

  6. Scott Lemieux:

    The Klarman article linked in the post just utterly destroys McConnell. As RSP says, pretending that the views of some radical Republicans in 1875 represented those of most framers (let alone ratifiers!) in 1868 is…not going to be convincing.

  7. Hogan:

    Does that mean the federal government can own slaves too? Cool.

  8. Scott Lemieux:

    Well, no, the 13th Amendment pretty much applies to everyone public or private, so sorry — you’ll have to go to the “we’ll just pretend that clause of the Constitution doesn’t exist” branch of conservative jurisprudence.

  9. Hogan:

    Or the “wait, we stopped using the Articles of Confederation? When did that happen?” school.

  10. oldster:

    After the 16th Amendment, we are *all* slaves of the federal government, man.

    Ow–sorry, that sounds too much like the real thing, when I intended parody.

  11. UberMitch:

    It bears repeating that Scalia himself has given up the game in describing himself as “faint-hearted originalist,” which has to mean precisely the same as Lemieux’s critique above, right? Originalist except for when he doesn’t want to be for outcome-driven reasons.

  12. Michael Confoy:

    Madison’s definition of what the original intent was changed through out his political career. He did seem to be strongest on what was argued in the Federalist papers. Never the less, Madison’s political career clearly demonstrates that what was allowable under the constitution had to change based on the reality on the ground of the times.

  13. Murc:

    There was equal opportunity in the free market prior to 1965? Do tell.

  14. Murc:

    There’s more textual basis for Brown than for Bolling, but even so you can only make an originalist defense of Brown if you define constitutional principles at such a high level of abstraction that everybody’s an originalist

    Could you expand on this, Scott?

    My laymans understanding of Brown is that it rests on the following chain of logic:

    1) Separate but equal establishments for the races are entirely Constitutional.

    2) However, it is actually impossible to set up separate establishments that are in any way equal.

    3) Therefore, because of the guarantee of equal protection under the law, the government is not permitted to separate out people on the basis of race.

    Have I got that wrong?

    That chain of logic doesn’t seem to conflict with a lot of strains of originalist thought.

    3) Therefore, facilities

  15. Murc:

    Extra half-a-line at the end, you can ignore that.

  16. James E. Powell:

    I remember back in law school we read a bit from William O Douglas, from his autobiography I think, that justices aren’t judges, that they decide what outcome they want, then find decisions and rationales from prior decisions that support that outcome. The professor pointed to it as proof that Douglas was an apostate, a heretic, and most of the students agreed. But it’s pretty clear that’s exactly what justices do.

    If you’re a trial judge or even a appellate judge, you have to consider that whatever you decide can be overruled, but when you are one of the nine, all you need to do is convince four other people to agree. Not just the court’s prior decisions, but your very own prior decisions, can be ignored. See, e.g., Bush v. Gore.

  17. dilbert dogbert:

    Long Story Short: With this Subprime Court it is Calvinball all the way down. Anything else is a waste of time and effort.

  18. Craigo:

    The 16th Amendment was never ratified, according to a variety of legal arguments fashioned by people who are currently serving prison sentences for tax evasion.

  19. Hogan:

    Yes, but they were tried under martial law, as proven with geometric logic by the fact that there was gold fringe on the flag in the courtrooms.

  20. efgoldman:

    Extra half-a-line at the end, you can ignore that.

    No, I can’t. Sorry, your thesis is not accepted.
    [I need to get out more.]

  21. efgoldman:

    Yup. And its going to take decades to undo. One of the least remarked but most effective things that Ronaldus Magnus and the Bushes did was appoint young judges and justices, assuring decades of misfeasance in the federal courts.

  22. DrDick:

    Speaking as someone who was born in the early 50s and grew up in Oklahoma under Jim Crow and segregation, let me just say that this is the most foul, choleric, and malodorous pig shit I have ever encountered and you are vile and morally depraved beyond belief.

  23. catclub:

    I have the feeling that “Originalism’s Ladder” has a lot more in common with Chutes and Ladders than with Maimonides Ladder.

  24. John:

    I thought that their argument was that it only applies to “citizens of the United States,” and “citizens of the United States” are only black people, because that’s what the 14th Amendment says. Or something.

  25. MAJeff:

    Someone is missing the fact that Jim Crow, and such things as racial covenants and racially exclusive Levittowns, were themselves a planned racial economy.

    Surprise, surprise; the new misogynist heterosexual supremacist is also a white supremacist.

  26. Hogan:

    Because white people are sovereign citizens of the sovereign states. Or something. (I believe that every one of these arguments ends with “or something.”)

  27. Winchester:

    Racism is evil, and the way to fight it is not with racial socialism.

    There is such thing as evil, and the way to fight it is not to worship “diversity” and to elevate and celebrate it at all costs.

  28. Bill Murray:

    when the heck have their ever been free markets?

  29. MAJeff:

    Poor Whitey. It’s hard out there for a cracker.

  30. efgoldman:

    In the minds of the WSJ editorial board, all the unicorns wear three-piece suits and get driven around in town cars.

  31. efgoldman:

    Serve it some pancakes.

  32. Scott Lemieux:

    Separate but equal establishments for the races are entirely Constitutional.

    Nah, not really. Looking at Brown in isolation, you could argue that they weren’t overruling Plessy but just saying it didn’t apply to a particular context where it didn’t work. But of course we know that to the extent that Warren’s opinion implied that it was disingenuous; Plessy was being overruled, as the series of one line opinions saying that in light of Brown other forms of segregation were unconstitutional makes clear. Also, the Court in Brown specifically declined to rule on the original meaning of the 14th Amendment, because they knew it couldn’t justify the outcome.

    In addition, again saying that “well, we have to change how we apply the principle in light of new information” is only “originalist” in the sense that Willam Brennan could be an originalist.

  33. Mike Schilling:

    That is the key. (But where the hell are the strawberries?)

  34. Sebastian H:

    You say that like you disagree with CalvinBall. What is your non originalist non textualist non CalvinBall method of jurisprudence? The whole reason harder textualism came to the fore was to resist the any five votes=Constitutional amendment problem.

  35. wengler:

    I really hope for your sake that you are a parody troll.

  36. T. Paine:

    You may have missed it, but there isn’t a non-Calvinball theory of jurisprudence. And since you obviously didn’t read Scott’s post, “harder textualism” (or whatever you want to call it), is also a form of Calvinball (as evidenced by Heller and Citizens United.

    My theory of jurisprudence (crudely stated) is anything that protects the people from arbitrary and/or discriminatory use of power, or protects people from the vicissitudes of life.
    What’s yours, other than “fuck the powerless”?

  37. James E. Powell:

    I always had the impression that what drove the “harder textualism” was the belief that the 19th Century was totally awesome.

  38. Dilan Esper:

    That’s slightly true about Bolling (though the more principled view is that due process was not understood to bar discrimination), but how about Adarand, which all the supposed originalists endorsed?

  39. DrDick:

    There is such thing as evil

    There is indeed, and you are its living embodiment.

  40. DrDick:

    Only if they are made with pure white flour and white sugar and served with white Karo syrup and whipped cream. Wouldn’t want any diversity.

  41. MAJeff:

    And egg whites. Only the whites of the eggs are acceptable.

  42. Hogan:

    If God had wanted the whites and yolks mixed together, He would have made all eggs pre-scrambled.

  43. Incontinentia Buttocks:

    Apartheid is the price of freedom!

  44. Incontinentia Buttocks:

    the “we’ll just pretend that clause of the Constitution doesn’t exist” branch of conservative jurisprudence.

    FTFY. Unfortunately it’s not just conservatives who selectively ignore, e.g., the 4th Amendment.

  45. DrDick:

    That and a revanchist Catholic theocracy.

  46. Josh G.:

    It’s always seemed to me that there is a deeper problem with “original intent” as a method of jurisprudence: Whose intent counts? After all, laws and constitutions are virtually never designed by one person alone, and even if they were, they have to be voted on by others, who may well interpret them differently. When you’re interpreting the Constitution, do you go with Hamilton’s “original intent”, or Jefferson’s? Both men played vital roles in the formation of the Republic, but they disagreed on just about everything. And when it comes to the 14th Amendment, whose views on segregation get to count? Thaddeus Stevens would have unquestionably said that the 14th Amendment should prohibit segregation in all forms, while many other members of the House’s Joint Committee on Reconstruction would have disagreed. John Bingham, who was probably more responsible for the wording of the 14th Amendment than anyone else, doesn’t seem to have expressed any specific views on segregation at all. So if you’re an “original intent” type, who do you go with?

  47. Breadbaker:

    They were also denied their First Amendment right to doodle with three metal shots during their trials.

  48. marc sobel:

    I always assumed that originalism is like biblical fundamentalism, you interpret it to support the policies you want and condemn the policies you dislike.

    And just as intellectually consistent.

  49. Breadbaker:

    It’s worse than that. None of the Framers (Jefferson was not a Framer, he was in France) left all their thoughts carefully down on paper with nice little dates saying what they thought during the constitutional convention. The state conventions left an uneven record, too. And of course, if Madison thought A and New York’s ratifiers thought Not A, does that give the constitution a different meaning in New York than in Virginia?

    But what happens if tomorrow we find a scrap of paper that might have been Madison’s that elucidates some part of the constitution (say, the appointments clause)? And it gets authenticated by someone. And the day after tomorrow it gets shown to be a fake? What do we do with it?

    What they left us was a written constitution to be interpreted by common law judges (as the First Congress pretty clearly assumed they would all be, even though the phrase doesn’t appear in the original document). That’s what we have and the “original intent” of the Framers did not assume Madison’s notes and did not assume the Federalist. Which, to my mind, puts paid to the notion of originalism as somehow rooted in some bad historian’s understanding of what a group of white males from 12 colonies thought in the summer of 1787 and nothing more.

  50. Major Kong:

    It is rather odd that the founders’ original intent always, always, always seems to have been whatever supports Scalia’s conservative viewpoint on any particular subject.

  51. Michael Bersin:

    Justice Antonin Scalia on Brown (March 4, 2008):

    Question: As an originalist how do you handle a case like Brown versus Board of Education 1954 where arguably the original understanding of the equal protection clause did not prohibit segregation in public schools?

    Justice Scalia: That is a very good question and it’s often asked. We, we originalists, uh, refer to this as, uh,”waving the, the bloody red shirt” of Brown versus Board of Education. Uh, there are two answers. Number one, and less important, I think I would have been with the majority in Brown because I think I would have been with, uh, Justice Harlan in Plessy. Plessy versus Ferguson, which was a case, uh, in the 19th century which held that the state of Louisiana could require blacks to ride in a separate railroad car….and the court said that was okay and Harlan dissented…I think I would have been with Harlan in Plessy so I think I would have been with the majority in, in Brown.

    But that, that’s the less important answer. Look, I will stipulate…that you can do some good things with, uh, uh ignoring the Constitution. With the living Constitution letting the court, the judges make it up. I’ll stipulate. I mean kings can do stuff that democratic , uh, legislatures can’t achieve. So what? Does that prove that kings are better? A stopped clock is right twice a day. [laughter] I’ll grant you, that, that, that some things can be achieved but that isn’t the basis for judging it. Whether now and then it produces a result you like. You have to look at the whole system and say, “Is this the way a democratic society should govern itself?”

    And the answer is, “No.”

  52. rm:

    In 1975, my parents told me that it was going to be “the best Christmas ever.” Santa had told them he was bringing me “everything I asked for and more.”

    Of course, they lied; they did not say that getting presents from Santa required me telling them what I wanted . . . . A magical land of elves was traded for a provision of presents in a PLANNED NONMAGICAL SHOPPING TRIP.

  53. Manju:

    And there’s a deeper originalist problem with segregation, of course: not only Bolling but Brown are wrong from an originalist perspective

    As evidence, you link to a piece arguing that Brown can’t be defended on the grounds of original intent. Obviously, the framers and ratifiers intended to maintain school segregation.

    But this intent contradicts the underlying ideology upon which the document rests. As one constitutional scholar observed:

    When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.

    As a description of intent, this is obviously a load of crap. So what is it? Its original meaning.

    This school of thought has no problems with Brown.

  54. The Dark Avenger:

    Obviously, the framers and ratifiers intended to maintain school segregation.

    Except that there was no public education as we know it today, so to say that we know the founders intent about an institution that didn’t exist in their day is not at all logical or reasonable.

  55. Scott P.:

    It’s Admiralty Court, not martial law. (yes, I know far too muvh about the sovereign citizen’s movement).

  56. cpinva:

    wow, what a shock! two paragraphs of utter, nonsensicle bullshit, from the court’s leading, “originalist” intellectual.
    and he’s allowed to vote on actual cases.

  57. MAJeff:

    Additionally, given the fact that Jim Crow didn’t exist at the ratification of the constitution, it’s rather ridiculous to suggest they intended to endorse it. Yes, they endorsed a white supremacist form of social organization, but segregation isn’t what they were doing.

  58. cpinva:

    they also argue that only foreign sourced income is subject to US taxes, because of some nutty interpretation of section 800 something of the code. which, on its face, seems nutty, and is, in fact, nutty.

  59. cpinva:

    puhleeze!

    “There is indeed, and you are its living embodiment.”

    you give him far more credit than he deserves. at best, he’s a pimple on satan’s ass, and that’s on a really good day.

  60. Manju:

    It doesn’t matter if there was no public education. Its both logical and reasonable to conclude that a document intended to maintain slavery and racial segregation would also allow for school segregation. After all, if the latter is unconstitutional, then on what grounds could the former not be?

  61. Jon:

    I agreed with how you started and then … good lord, what world do you people live in?

    Most rulings of a trial judge are never appealed. Most of those aren’t even taken up by higher level courts. The only reason they don’t want to be reversed is itself political, i.e. they might not get promoted.

    There are some judges who like judging, some who like making law, but none who don’t, at their core, do what they want to do. It can just be that at the time what they want to do is be or appear “fair.”

    The reason your law prof presents this p.o.v. as heresy is because it takes a very sharp Ockham’s razor and slashes through 90% of legal scholarship, debunks all the clever epicycles that the legal Ptolemies have hung on the jurisprudential orbits while exposing the conceit of both bench and bar and law academia that what we are doing is somehow on a higher level than politics.

    And yet circuit court appointments are filibustered. That there should be evidence enough to show all of this.

    My torts professor had tried to come up with this all encompassing theory of causation for a draft of the Third Restatement of Torts. It invoked philosophy, science, cases from all over the country, throughout time, and even other common law countries. It was elegant. It was mandatory on his final exam, but it was bullshit.

  62. Manju:

    given the fact that Jim Crow didn’t exist at the ratification of the constitution, it’s rather ridiculous to suggest they intended to endorse it.

    Lucky for me, I didn’t mention Jim Crow.

    Yes, they endorsed a white supremacist form of social organization, but segregation isn’t what they were doing.

    Slavery is a form of segregation. The government regulated it, subsidized it, etc. This government actions were intended to be constitutional.

  63. The Dark Avenger:

    There was hardly any segregation as the South practiced it in most of the northern colonies:

    But what the Founding Fathers called corruption, depravity, viciousness, and vice, many of us would call freedom. During the War of Independence, deference to authority was shattered, a new urban culture offered previously forbidden pleasures, and sexuality was loosened from its Puritan restraints. Nonmarital sex, including adultery and relations between whites and blacks, was rampant and unpunished. Divorces were frequent and easily obtained. Prostitutes plied their trade free of legal or moral proscriptions. Black slaves, Irish indentured servants, Native Americans, and free whites of all classes danced together in the streets. Pirates who frequented the port cities brought with them a way of life that embraced wild dances, nightlong parties, racial integration, and homosexuality. European visitors frequently commented on the “astonishing libertinism” of early American cities. Renegades held the upper hand in Philadelphia, Boston, New York, and Charleston, and made them into the first centers of the American pleasure culture. Rarely have Americans had more fun. And never have America’s leaders been less pleased by it.

    Lower-class taverns were the first racially integrated public spaces in America. Black, white, and brown Americans came together through mutual desire centuries before the federal government brought them together by force. Although the law in all the colonies barred blacks from public houses, the law was often ignored by tavern keepers, white patrons, and by free blacks and even slaves. Early court records tell of drinking establishments across the colonies that disregarded the color line. Typical was a Burlington, New Jersey, grand jury’s charge in 1707 that a laborer named William Cale kept a “common house of drinking . . . and there received harbored and supported diverse vagabond and other idle and suspected persons of evil conversation as well as diverse servants and Negroes of the inhabitants of the town.” Occasional attacks by law enforcers did little to stem the inflow of various colors into American taverns. Again, the less “respectable” a public house was, the more likely it was to facilitate the mixing of races. “is was most notable inside the dark drinking houses of New York City. Here, as throughout American history, the lowest “scum” were interracial pioneers. “All colonies prosecuted those who kept disorderly houses, but the infraction included a range of activities from selling liquor without a license to operating a brothel,” writes Salinger. “New York’s version of the practice was unique; it was synonymous with multiracialness.” The freedom in such places at times spilled into the streets and terrified the guardians of social order.

    John Hughson was an illiterate, thieving piece of trash and one of the unknown heroes of American liberty. Hughson’s tavern, near the site of what became the World Trade Center, was filthy, ramshackle, and nightly filled with the bottom of human life in colonial New York City. Like almost all such places, it was a place where freedom and desire brought together “whorish” women, “brutish” immigrants, and shiftless, sensual slaves.

    Neighbors complained about the lowlifes the tavern brought to their street, as well as the noise from raucous singing, shouting, cursing, jesting, drumming, fiddling, and dancing. According to court records, Hughson’s tavern was one of many businesses that gave free and enslaved blacks a place “to resort, and be entertained privately (in defiance of the law) at all hours.” According to one judge, the greatest crime committed by these slingers of drink and purveyors of commercial sex “was not only of making Negro slaves their equals, but even their superiors, by waiting upon, keeping with, and entertaining them with meat, drink, and lodging.” On holidays and Sundays, Hughson served feasts where the rabble acted like kings. “They sat all round the table, and had a goose, a quarter of mutton, a fowl, and two loaves of bread,” said a witness. “Hughson took a flask of rum out of a case and set it on the table, and two bowls of punch were made; some drink drams; a cloth was laid.”

  64. DrDick:

    And this is a refutation of Scott’s point exactly how? His whole point is that “originalism” is pure conservative bullshit.

  65. Rattus Norvegicus:

    Shorter Scalia: “Orginalism is bankrupt”.

  66. Vance Maverick:

    Vile, but not (I think) nonsensical. He’s saying that the majority in Brown reached the right decision for the wrong reasons. Whatever philosophy of justice you have, it will make room for conclusions of this form.

  67. Manju:

    His whole point is that “originalism” is pure conservative bullshit.

    The failure to distinguish between “original intent” and “original meaning” leads him to believe that Originalism, properly applied, would have to reject Brown v Board, as Citizens United stance reveals.

    But that only applies to one of the two schools. Original Meaning could compel one in the other direction, as Theodore Olson’s stance reveals.

  68. sharculese:

    So what is it? Its original meaning.

    If your disagreement is based upon pretending you don’t think Scott knows the difference between original meaning and original intent, you probably just shouldn’t bother.

  69. The Dark Avenger:

    The same Ted Olson, who is now challenging DOMA?

    That’s the great thing about conservatives like Manju, their best efforts at “scholarship” are always good for a few laughs.

  70. Manju:

    The same Ted Olson, who is now challenging DOMA

    I don’t know what you’re trying to say and I’m not sure you do either. Here’s a quick summary of issue;

    Scott says Originalism = Segregation Constitutional (as evidenced by CU’s position)

    I say Original Intent = Segregation Constitutional

    But Original Meaning = Segregation Unconstitutional (as evidenced by Ted Olson’s position).

    You, in contrast, have (one again) inadvertently veered into neo-confederate territory…since you appear to be arguing that the framers did not even intend there to be racial segregation.

    So you somehow managed to let even Original Intent off the hook.

  71. Scott Lemieux:

    The failure to distinguish between “original intent” and “original meaning” leads him to believe that Originalism, properly applied, would have to reject Brown v Board, as Citizens United stance reveals.

    I understand this (essentially meaningless) distinction perfectly well. In its original public meaning the 14th Amendment was not generally understood as prohibiting segregation.

  72. Dave:

    Surely the basic problem is that no sane country anywhere else in the world treats its constitutional document as simultaneously Holy Writ and a political football? It’s a fucking stupid way to run a country, and you’ve stuck yourselves with it, so suck it up.

  73. heckblazer:

    Public schools and compulsory education were well established in New England by 1868.

  74. David Kaib:

    Madison’s understanding of the Constitution shifted (which is an important point), but ‘original intent’ was invented long after he was dead. The use of text, history, etc. is not originalism – which claims that these things are the ONLY source of meaning, and that application is set in stone not just meaning. Originalism is a modern idea, and is one that had developing in a ‘living’ fashion – oddly enough.

  75. The Dark Avenger:

    Thanks for responding to Manju’s attempt to make segregation somehow a part of American history supported by the Constitution from the very beginning.

  76. DrDick:

    you probably just shouldn’t bother.

    Frankly, that is generally true of everything.

  77. Joe:

    It is not a matter of “barring discrimination” — it is that there is some limit. I don’t think Republicans of the 1870s would accept blatant racial discrimination of all sorts (social discrimination was treated differently) on account of race in the federal territories. By then, “arbitrary legislation” had an equal protection component.

    The cite to Adarand underlines my point as to degrees. Scalia and Thomas cite open-ended principles there to broadly reject AA. Reliance on originalism then becomes rather weak even if some over at Volokh Conspiracy will try to debate you on the point.

  78. Michael:

    I’ve always thought that Loving was the biggest problem for originalism. I mean, there is absolutely no question about the permissibility of anti-miscegenation laws back when the 14th Amen was ratified. But the idea that such laws are Constitutional today is totally repugnant

  79. NonyNony:

    Actually, I think it was more the 20th century being really scary than it was that the 19th century was awesome.

    If it were about the awesomeness of the 19th century, there would be more handlebar moustaches and big sideburns on the court.

  80. Manju:

    As a matter of fact and intent, segregation was indeed “a part of American history supported by the Constitution from the very beginning.”

    I would normally assign you to the LGM’s Dixiecrat Division. But you’ve managed to to transcend even their leader, Dr Dick…who can’t figure out that a Senator who votes against the 1970 VRA is indeed a segregationist.

    You’re more John Calhoun than Robert Byrd. Congratulations for being the founding member of LGM’s Confederate Contingent.

  81. DrDick:

    That’s all right, Manju. We just assign you to the special ed class in the loony bin.

  82. The Dark Avenger:

    Manju, that would surprise one of my Confederate ancestors, who deserted the Texas Rifles two weeks after there was an arrears of pay. I date that as the first sign of liberal intelligence in my family, YMMV.

    Again, with the trucking out of “ROBERT BYRD WAS A RACIST, OMG!”, Manju.

    Thanks for pointing out that he was obviously more of an influence on those Republican grandees of racial tolerance like Ronald Reagan or Lee Atwater than history records:

    Because of his opposition to desegregation, Byrd was a member of the wing of the Democratic Party that opposed desegregation and civil rights imposed by the federal government. However, despite his early career in the KKK, Byrd was linked to such senators as John C. Stennis, J. William Fulbright and George Smathers, who based their segregationist positions on their view of states’ rights in contrast to senators like James Eastland, who held a reputation as a committed racist.[citation needed]………………………….

    Race

    Late in his life, Byrd explicitly renounced his earlier views favoring racial segregation.[49][50] Byrd said that he regretted filibustering and voting against the Civil Rights Act of 1964[51] and would change it if he had the opportunity. He said joining the KKK was “the greatest mistake I ever made.”[49] Byrd also said that his views changed dramatically after his teenage grandson was killed in a 1982 traffic accident, which put him in a deep emotional valley. “The death of my grandson caused me to stop and think,” said Byrd, adding he came to realize that black people love their children as much as he does his.[52]

    It’s a shame that the NYT didn’t have you to write an objective obituary for Sen. Byrd, Manju:

    He went on to vote for civil rights legislation in 1957 and 1960, but when the more sweeping Civil Rights Act was before Congress in 1964, he filibustered for an entire night against it, saying the measure was an infringement on states’ rights. He backed civil rights legislation consistently only after becoming a party leader in the Senate.

  83. Hogan:

    Slavery is a form of segregation.

    What does that even mean?

  84. Malaclypse:

    It means Manju missed the chapter on false syllogisms.

    Segregation is a racially-based wrong.
    Slavery is a racially-based wrong.
    Therefor slavery is segregation.

  85. Dilan Esper:

    The originalist issue with the Fifth Amendment depends on whether people understood irrational discrimination to be unconstitutional in 1791, not the 1870′s.

  86. Sebastian H:

    If you really believe that it is all calvinball all the way down, why should we bother with a Supreme Court at all?

  87. Sebastian H:

    Again that sounds like a criticism of every member of the Supreme Court not just originalists. How many times did you see O’connor write: we now create this ninety five part balancing test which reaches conclusions I wouldn’t like?

    Ad you certainly won’t read such words from Ginsberg. The only one who ever seems to find that the Constitution doesn’t shockingly agree with them in ever particular of their personal politics is Roberts.

    If you want to argue that original ism doesn’t provide good restraint, fine. But don’t pretend that liberal jurisprudence is so somehow any less personal politics driven.

    The thing that keeps drawing me back to more formal structures is I just don’t see the point of a Supreme Court being able to strike down congressional laws if it really is just calvinball. Why would we have a constitutional amendment structure if you could do it all through five justices?

  88. Sebastian H:

    Basically this times 100.

  89. Manju:

    What does that even mean?

    It means this. From Scott’s link:

    If “original understanding” is taken to mean the Framers specific intentions with regard to the practice of school segregation, the overwhelming consensus among legal academics has been that Brown cannot be defended on originalist grounds”.

    http://www.jstor.org/discover/10.2307/1073643?uid=3739832&uid=2&uid=4&uid=3739256&sid=21101645278221

    As you can plainly see, the authority to whom Scott refers believes, like I do, that the Framers intended school segregation to be constitutional…even though the institution did not exist.

    We know this because of their views on another higher form of segregation…slavery. There is no logical way to declare school segregation unconstitutional while simultaneously holding the opposite view for the governmental actions that maintained slavery.

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