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.