Brown, Loving, Lawrence & Originalism:

Edward Whelan has an article defending Brown v. Board of Education on originalist grounds. The dilemma of "Original Intent" originalists is that often their theory yields results in which they don't wish to defend. For instance, a pretty strong case can be made that the drafters of the 14th Amendment did not intend to do away with segregated schools. After all, as Margaret Talbot put it, the "same Congress that passed the Fourteenth Amendment segregated Washington schools." (Technically, Whelan notes, "the 37th Congress created segregated public schools for black children in D.C. in 1862, but it was a later, different Congress -- the 39th -- that in 1866 proposed the Fourteenth Amendment, which was ratified in 1868.")

Whelan cites Michael McConnell's work (which I greatly respect) making the originalist case for Brown (his 1995 Virginia Law Review article "Originalism and the Desegregation Decisions"). I'll concede that one could make a case for or against Brown on "Original Intent" grounds (although I'm pretty skeptical that the ratifiers of the 14th Amendment believed that they were outlawing segregration, which would be required in order to vindicate Brown on Original Intent grounds). But there is no way that one can make the same case for Loving v. Virginia.

Not only were the framers of the 14th Amendment not aware that they were outlawing state bans on interracial marriage, but the Amendment was ratified upon the specific reliance by framers to the states that they were NOT outlawing such bans. For instance, the Illinois Republican Senator Lyman Trumbull -- the drafter and manager of the 14th Amendment -- stated: "If the negro is denied the right to marry a white person, [and] the white person is equally denied the right to marry the negro[,] I see no discrimination against either." (See this article). And this is the exact same argument that Virginia's lawyer made in Loving.

I wish there were a transcript of this speech that Hadley Arkes gives, dealing with this very issue. Now Arkes is a social conservative and lays all of these facts down and then actually defends Loving (the outcome, not the reasoning in the case). What does Arkes argue? Basically, even if on the specific question of interracial marriage Loving wasn't consistent with original intent, it was certainly consistent with the more overriding general principle of that Amendment, which was to guarantee equality between the races. In fact, the result in Loving is more consistent with what that Amendment sought to accomplish -- racial equality -- than Trumbull's/the framers' specific point of view on miscegenation. For instance, as Whelan notes:

As early as 1880 -- a mere twelve years after ratification of the Fourteenth Amendment -- the Supreme Court in Strauder v. West Virginia read the Fourteenth Amendment as "declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color."

Now that general principle, as applied to the specific issue of interracial marriage bans certainly would justify striking down such bans. Arkes concedes that we posit general principles one day (for instance, racial equality) -- may apply them inconsistently when they are first initiated (for instance, anti-miscegenation laws aren't discriminatory) -- and then years later realize that staying true to the original general overriding principle may require coming down in a way not anticipated by the principle's initiators in specific circumstances (i.e., even though the Framers thought that the 14th Amendment preserved the legality of interracial marriage bans, staying true to the general principle of racial equality requires striking down such bans).

Arkes has a great quote about this at exactly 45 minutes into the lecture.

"None of us can realistically claim to know all of the implications that spring from our own principles...the life of moral judgment is the life in which we are constantly discovering implications of our principles that have previously gone unforeseen. If Trumbull and his colleagues had been clear about their own principles, they might have recognized that the same principles that enjoined us not to draw adverse moral inferences about people on the basis of race [lead us to conclude that miscegenation bans impermissibly discriminate on the basis of race]."

In other words, make that logical leap consistent with original principles.

I fully agree with Arkes. But the problem for such social conservatives is that this reasoning isn't limited to Race and Loving. It has applications in many, many other constitutional areas and can be used to justify Lawrence v. Texas and one day may be used to justify gay marriage.

For instance, Randy Barnett makes this point, on liberty which I think parallels Arkes's on racial equality.

The outcome of that analysis depends almost entirely, however, on how specifically you define the right being asserted. The more specifically you define the liberty at issue -- for example, a "constitutional right of homosexuals to engage in acts of sodomy" -- the more difficult a burden this is to meet and the more easily the rights claim can be ridiculed. Although "liberty" as a general matter is obviously deeply rooted in our history and traditions, the specific liberty to use contraceptives is not. Nor are many other liberties, especially if unknown at the founding. Even liberties that existed at the founding, like the liberty of self-medication, have not to date been deemed "fundamental" by the Court.

Exactly. Let's substitute: The outcome of that analysis depends almost entirely, however, on how specifically you define the right being asserted. The more specifically you define the equality right at issue -- for example, a "constitutional right to marry a person of a different race" -- the more difficult a burden this is to meet and the more easily the rights claim can be ridiculed. Although "racial equality" as a general matter is obviously deeply rooted in the history and original intent of the 14th Amendment, the specific right to marry a person of a different race is not.

In this earlier post, I argued after Barnett that the Declaration of Independence and the 9th and 14th Amendments unquestionably guarantee some general substantive norm of liberty. That's the basis for the originalist grounds for Lawrence. The Original Intent retort is that those who believed in a substantive "right" to liberty couldn't possibly have believed in a specific right to commit sodomy. The reply to that would be the general principle of a substantive norm of liberty -- a presumption of liberty, as Randy Barnett puts it -- logically points in that direction.

Replying that a specific right to "sodomy" isn't found in the text of the Constitution isn't sufficient, because neither is a specific right to "interracial marriage" found in the text. Simply invoking the principle of "racial equality," which was unquestionably the general intent of the 14th Amendment won't do it either, because we can just as easily invoke the principle of "liberty" which was also unquestionably part of the general intent of the drafters of the Declaration, the Bill of Rights, and the 14th Amendment.

One of the final parallels between Loving and Lawrence was the practical time in which both cases were decided. Clearly in 1868 and significantly thereafter, the nation wasn't ready for a national striking down of miscegenation bans. As the Nation article notes, quoting Harvard Law Professor, Randall Kennedy's book on the subject:

"After Ohio repealed its antimiscegenation laws in 1887, no other state followed its lead until Oregon finally did so in 1951--sixty-four years later. In the sixteen years after that, however, more than a dozen states repealed their statutes: Montana (1953), North Dakota (1955), Colorado and South Dakota (1957), California, Nevada, and Idaho (1959), Arizona (1962), Utah and Nebraska (1963), Indiana and Wyoming (1965), and Maryland (1967)." In 1940, thirty-one of the forty-eight states banned interracial marriage. As recently as 1960, Sammy Davis Jr. postponed his wedding to the Swedish actress May Britt until after the election, in order not to hurt the Democrats--and was rewarded with exclusion from John F. Kennedy's inaugural festivities.

But by 1967, when the Supreme Court struck down bans on interracial marriage in Loving v. Virginia, only sixteen states still had such laws.

Similarly, sodomy laws were once as widespread as anti-miscegenation laws. But when Lawrence v. Texas was decided, only 13 states had them left. This is important because, for instance, after claiming that Brown was consistent with Original Intent, Whelan calls the notion that the 14th Amendment guarantees a right to same-sex marriage "absurd." One wonders whether Whelan would defend Loving on originalist grounds, because, using the same process described above, of logical leaps consistent with general principles of liberty and equality (which were certainly at the heart of the 14th Amendment), the reasoning that gave us interracial marriage could indeed one day give us same-sex marriage, when the time is right (or when the time is not right). And Professor Kennedy agrees:

"It is my own belief that the struggle to secure the right to marry regardless of the genders of the parties involved will be won in the not so distant future," in part as a result of "previous struggles over race relations."

I think this is consistent with what Professor Arkes stated in justifying Loving:

None of us can realistically claim to know all of the implications that spring from our own principles...the life of moral judgment is the life in which we are constantly discovering implications of our principles that have previously gone unforeseen.

I know of course a retort that many, including Arkes would put forth is, "if Loving leads to gay marriage, then gay marriage must also logically lead us to...." fill in the blank. And indeed, the expansion of liberty and equality probably won't end with homosexuals. However, Loving & Lawrence both were decided at very prudent times: after a strong majority of the states had already settled the issue. So too would be the right time for the Supreme Court to guarantee same-sex marriage if they ever do settle the issue.