Balkinization  

Saturday, May 14, 2005

Bad Originalism

JB

This argument by Edward Whelan tries to show that it is obvious that Brown v. Board of Education is consistent with the original understanding of the Fourteenth Amendment. But what Whelan shows instead is how difficult it is to make that case. More importantly, his essay shows that the desire to reach a particular result usually results in bad originalism, which engages in anachronisms and pays insufficient attention to the historical record. I'm all for serious historical analysis into the original public meaning of the constitutional text, but such inquiries will only take us so far. The fact that Brown cannot easily be reconciled with the original understanding should *not* be regarded as a knock-down argument against the use of originalist arguments generally; rather it simply shows that our practices of constitutional interpretation have, and legitimately have, made use of many other modalities of interpretation besides appeals to the original understanding. Failure to recognize this basic fact about the American constitutional tradition leads to Whelan's strained attempt to show that Brown is "really" an originalist decision. But let's get to his actual arguments.

Whelan first notes that although

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. As the brilliant scholar (and now tenth-circuit judge) Michael McConnell explains in his 1995 Virginia Law Review article "Originalism and the Desegregation Decisions": "At no time after the Fourteenth Amendment did Congress vote in favor of segregated schools in the District [of Columbia] (although Congress appropriated money for the segregated schools that already existed)." In addition, the restrictions of the Fourteenth Amendment apply only to states, not to Congress, so congressional action with respect to D.C. schools provides a shaky foundation for any inference as to the contemporaneous understanding of the Fourteenth Amendment.

But the very fact that Congress appropriated money to segregated schools that already existed following ratification of the Fourteenth Amendment doesn't really suggest that such schools were constitutionally suspect. In fact, it suggests the opposite, that such schools were constitutionally legitimate. Indeed, Congress's financial support for segregated schools in the District of Columbia is not surprising, for as I discuss later in conjunction with Michael McConnell's arguments, the idea of school desegregation was quite unpopular in 1868, and school segregation was widely practiced throughout the country.

Whelan's fallback position is that what Congress did, either in 1862 or in 1868, made no difference because Congress assumed that it wasn't bound by the Fourteenth Amendment (or by the equal protection clause), whose text seems to apply only to the states. This is perfectly reasonable, but given Whelan's originalist premises this suggests that Bolling v. Sharpe-- which holds that the federal government cannot segregate the D.C. public schools, and thus the 1995 Adarand case-- which holds that federal affirmative action programs are subject to strict scrutiny-- are inconsistent with original understanding. This is a result that will discomfit both liberals and conservatives.

Indeed, in my 2001 book What Brown v. Board of Education Should Have Said, Michael McConnell had the courage of his convictions-- he argued that the result in Bolling could not be sustained under the Due Process Clause of the Fifth Amendment(ratified in 1791), and that the Constitution does not forbid the federal government from engaging in race discrimination. (Judge Robert Bork took the same position in his 1991 book The Tempting of America). Instead, McConnell argued that segregating the D.C. schools was beyond the D.C. school board's power because Congress had not specifically authorized the school board to do so. Of course, Congress had not specifically told the school board that it could not do so, and throughout the early 20th century I suspect that most Congressmen and Senators, particularly those from the South, would be very surprised to learn that the D.C. schools didn't have the authority to segregate their pupils by race. Indeed, they expected that it did have such authority, and they expected those schools to be segregated, as in fact they were. McConnell's ultra vires argument is pretty unpersuasive given the actual history of segregation in the District of Columbia; it is his way of reconciling his sincere originalist views with the unpalatability of their consequences.

While I'm on the subject of McConnell's scholarship on Brown, his originalist argument for Brown is that Congress considered but ultimately rejected a ban on segregated public schooling in what ultimately became the Civil Rights Act of 1875, which was designed to enforce the Fourteenth Amendment. (There are many ironies here, including the possibility that if McConnell is right, then the Civil Rights Cases, which held that the 1875 Act was not a valid attempt to enforce the Fourteenth Amendment, is probably wrong. But don't get me started.).

McConnell correctly points out that many of the people who voted for the Fourteenth Amendment also voted for the school desegregation language in the 1875 Act, hence he concludes that this is evidence of what they intended in 1868.

The problem with McConnell's argument is that he must concede, as he does in his 1995 study, that at the time of the ratification of the Fourteenth Amendment, "school desegregation was deeply unpopular among whites, in both North and South, and school segregation was very commonly practiced." Indeed, McConnell contends that the Fourteenth Amendment, along with the Fifteenth, is virtually unique among amendments in the sense that it contradicted contemporary popular opinion rather than being consistent with it. As a result, he argues that the views of the actual ratifiers of the Fourteenth Amendment in the states-- who largely opposed school desegregation-- should be disregarded to the extent that they contradict the views of those framers who voted for school desegregation in subsequent debates over the 1875 Civil Rights Act in Congress. To put it mildly, this is a very controversial view about the Amendment process. Given the importance that originalists usually put on the ratification debates in the states, McConnell's argument, which rejects the views of the actual ratifiers of the Amendment, and which is based on what was, at the end of the day, a piece of legislation that failed in Congress, is not particularly persuasive.

Whelan's next argument is that the 1880 case of Strauder v. West Virginia demonstrates that segregation was prohibited by the Fourteenth Amendment.

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."

Even in its notorious 1896 ruling in Plessy v. Ferguson, the majority stated that the "object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law." But then, in the sort of freewheeling non-originalist excursion that advocates of the phony "living Constitution" have come to celebrate, the majority looked to the mystery of the universe to assert that "in the nature of things" the Fourteenth Amendment "could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality." By contrast, Justice Harlan's celebrated dissent quoted Strauder and declared that the purpose of the Fourteenth Amendment was to "remove[] the race line from our governmental systems."


Whelan's argument associating Strauder with a strict colorblindness rule and Plessy v. Ferguson with nonoriginalist living constitutionalism suggests that he understands very little about the history of the ratification of the Fourteenth Amendment. The Fourteenth Amendment did guarantee "equality under the law," but that phrase meant civil equality-- equal rights to sue and be sued, make contracts, own property, and, under some formulations, equal rights to free speech and free exercise of religion. Civil equality was distinguished from political equality-- the equal right of blacks to vote, serve on juries or hold political office, and it did not mean social equality, including the rights of blacks to intermarry with whites or the right to associate in civil society with whites on an equal footing. A strict colorblindness rule was rejected because it would give blacks the vote and lead to racial mixing. That is why the language of the Fourteenth Amendment is carefully chosen to guarantee only civil equality-- this is what the words "privileges and immunities" and "equal protection of the laws" meant in 1868-- and that is why a Fifteenth Amendment specifically guaranteeing blacks the right to vote (a feature of political equality) was required in 1870. (One of the interesting features of Strauder is that it blurs the civil/political distinction recognized by the framers, on which see Justice Field's dissent in the companion case of Ex Parte Virginia). All of these historical features of the original understanding appear to be lost on Whelan, who reads the text through 21st century eyes. In 1868, moderate Republicans could not stomach the idea of giving blacks the right to vote permanently (although they did vote in various state conventions), and they could not stomach striking down existing laws against miscegenation. So when Whelan quotes Strauder, he is quoting language that in its own day would have been understood to refer to civil equality, and because the Fifteenth Amendment had been ratified by that point, to political equality as well. Moreover, when Plessy states that "in the nature of things" the Fourteenth Amendment "could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality," (emphasis supplied) it is essentially stating the original understanding of the Fourteenth and Fifteenth Amendments.

The great irony is that Whelan thinks that this language from Plessy is "living constitutionalism" because he appears to be unfamiliar with the history. He simply assumes that the Fourteenth Amendment must have been about colorblindness and that the Plessy Court must have been engaged in nonoriginalist judicial activism because he uses the doctrinal categories and the political debates of our own day to understand Plessy. This is a perfect example of what I regard as bad originalism-- anachronistic special pleading that is insensitive to the complications of history.

In fact the central issue in Plessy is not whether the constitution is colorblind in our modern day sense of that word. It is whether sitting next to whites in railway carriages (or, by extension, in public schools) is an attribute of civil or social equality. Seven Justices believed that it was an attribute of social equality, only one (Justice Harlan) believed that it was a matter of civil equality. Indeed, Justice Harlan-- the great prophet of colorblindness-- does not support the idea of colorblindness in our modern sense. He also believed in the distinction between civil, political, and social equality. Thus, he went out of his way to emphasize the very point that Whelan mistakenly associates with the dreaded doctrine of living constitutionalism-- that just because blacks are civilly and politically equal doesn't mean that they are socially equal, or indeed, ever will be so.

One of the great ironies of the Plessy dissent is that in the sentences immediately prior to Harlan's invocation that "our Constitution is colorblind"-- he points out that

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.

And later he notes that

social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting.

So Harlan and the majority both agree that the Fourteenth Amendment does not guarantee colorblindness in all cases, only in cases of civil or political equality. The only issue that divides them is whether an issue of civil or social equality is being raised. In 1883, in Pace v. Alabama, which considered an Alabama statute that punished interracial cohabitation more stringently than cohabitation between members of the same race, the court unanimously upheld the law. Harlan did not dissent because this was a question of social equality, and where social equality is concerned separate but equal was perfectly constitutional.

All of this suggests the real problem with Whelan's originalism. He doesn't appear to understand the historical distinctions that animated the Fourteenth Amendment. If he was really serious about originalism, he would support the tripartite distinction between civil, political and social equality, and demand that the Court reinstate it in its jurisprudence. That would mean, among other things, that Loving v. Virginia-- the case that first announces the rule of strict scrutiny for all racial classifications under the Equal Protection Clause-- was wrongly decided. And that would mean, for example, that Virginia could today make the originalist Justice Clarence Thomas's marriage illegal, as indeed interracial marriage was in Virginia before the Loving decision.

Next Whelan rolls out Robert Bork's well-known argument for why Brown is consistent with original understanding:

Under an alternative originalist approach, as Judge Bork and others have argued, even if the ratifiers of the Fourteenth Amendment assumed that segregated public schools were consistent with equality, objective comparisons of facilities and resources had, by the time of Brown, long since disproved this assumption. Under this approach, an originalist opinion in Brown would therefore have concluded that the Fourteenth Amendment's clear purpose of establishing racial equality under the law required an end to segregated schooling.

The problem here is that Bork's argument isn't actually originalist. Here's Bork's actual argument, taken from his confirmation hearings:
[P]assing [some] historical evidence, which I think casts some doubt on the flat assumption that the 14th Amendment really meant separate but equal, let me say this. [The framers] wrote a clause that does not say anything about separation. They wrote a clause that says “equal protection of the laws.” I think it may well be true . . . that they had an assumption . . . that equality could be achieved with separation. Over the years it became clear that that assumption would not be borne out in reality ever. Separation would never produce equality.
I think when the background assumption proved false, it was entirely proper for the court to say “we will carry out the rule they wrote” and if they would have been a little surprised that it worked out this way, that is too bad. That is the rule they wrote and they assumed something that is not true.

And in that way I do not think any damage is done—you can even look at it more severely. You could say suppose they had written a clause that said “we want equality and that can be achieved by separation and we want that too.” By 1954 it was perfectly apparent that you could not have both equality and separation. Now the court has to violate one aspect or the other of that clause, as I have framed it hypothetically. It seems to me that the way the actual amendment was written, it was natural to choose the equality segment, and the court did so. I think it was proper constitutional law, and I think we are all better off for it.


One problem with this argument is that it is anachronistic-- it pays no attention to the civil/political/social distinction around which the language of the Fourteenth Amendment was crafted. It is no accident that the words "privileges and immunities" and "equal protection" were used instead of more general formulas that were proposed and rejected. Bork assumes that if faced with a conflict between equality and separation of the races, the framers would have chosen to promote equality even if this resulted in some racial mixing. That makes sense from the standpoint of our own values, in a post-Brown world, but not necessarily from theirs. As Paul Brest points out in the casebook that I co-edit, a more plausible translation of the civil/political/social distinction that animated the Fourteenth Amendment is "We want equality, but not if it requires mixing the races in schools or other such places." That is, in fact, why they chose the language they chose-- they wanted to exclude considerations of equality from certain spheres of social life, most prominently those having to do with marriage, family, and social integration.

It's important to recognize that this objection is about whether Bork gets his history right as an originalist, not whether his argument for Brown is a good or bad argument in general. In fact, I think that Bork's argument for Brown is quite plausible; it has similarities to the argument that I make in my own opinion in What Brown v. Board of Education Should Have Said. But my point is that it is not an originalist argument. Rather, it is, dare I say it, a perfect example of how one does living constitutionalism-- it views changed circumstances and prudential considerations as having significant weight in interpreting the meaning of the document.

I believe that originalist argument is an important modality of constitutional interpretation. My disagreement with today's originalists is that it is not the only or even the most important modality. I repeat, the issue is not about whether appeals to original understanding are legitimate or illegitimate. It is about whether originalism is the only touchstone of legitimate constitutional interpretation. I do not think that Brown can be justified solely on originalist grounds. However, that does not undermine the use of original understanding as a method of ascertaining constitutional meaning. What it does undermine is the view that judicial decisions are legitimate only if they can be squared with original understanding, and that decisions that appeal to text, post-enactment history, structure, prudential considerations, precedents (both judicial and non-judicial), traditions, and national ethos are illegitimate if they are unsupported by original understandings. The real debate is over unimodal versus multimodal interpretation. I am a multimodal interpreter, and I regard Brown v. Board of Education (and even more powerfully Bolling v. Sharpe) as strong examples for why a multimodal approach to constitutional interpretation is superior, and, I would say, far more legitimate than a unimodal approach. Indeed, the lesson I draw from Whelan's bad originalism is that people who claim to be strict originalists are usually multimodal interpreters too; they just don't recognize it or are not willing to admit it. As a result, they misunderstand or misuse history in order to shoe horn their conclusions into the language of original understanding. Whelan's essay is a good example of this unfortunate trend.


UPDATE: Whelan's response is here. It's a very puzzling performance, which seems to suggest that he hasn't done his homework. His argument seems to be that the Fourteenth Amendment's plain language reaches all distinctions based on race, i.e., that "the purpose of the Fourteenth Amendment was to “remove[] the race line from our governmental systems." I'm sorry to report that this just isn't the case. For one thing, it doesn't explain why a Fifteenth Amendment was necessary. Whelan doesn't seem to get why Congress used the actual language it did, rather than language that was offered to Congress (and rejected) that would have instituted a more general colorblindness rule. That is to say, Whelan reads the language of the Fourteenth Amendment anachronistically, rather than trying to figure out what it meant to people in its own day, as any good originalist (and any good historian) should. He also doesn't seem to get how the civil/political/social distinction worked, or what it was designed to achieve, and so he doesn't understand the reasons why Harlan could join in Pace v. Alabama and dissent in Plessy. (By the way, on Strauder, the reason why Strauder blurs the civil/political distinction is not because the distinction wasn't real in 1868, but because of the subsequent ratification of the Fifteenth Amendment, as my colleague Akhil Amar points out in his book on the The Bill of Rights. Justice Field dissented because he thought that Strauder was brought as a Fourteenth Amendment, and not a Fifteenth Amendment case.)

You can't really discuss what the Fourteenth Amendment "plainly" says from an originalist standpoint without understanding the theories of citizenship which generated that particular text. In this case, the basic idea was that all citizens-- men and women alike, were granted civil equality, but not political or social equality. Whelan is right that the text doesn't say "separate but equal." But it also doesn't say "no distinctions on the basis of color." That's because the idea behind the Fourteenth Amendment was not our modern idea of suspect classifications, but rather a vision under which *all* citizens had certain basic rights, the elements of civil equality, while a smaller group had rights of political participation, and the states were permitted to recognize and maintain certain features of social inequality that concerned marriage and racial mixing. (Hence Pace v. Alabama is unanimous even though it involves a clear racial classification and imposes a separate but equal rule). The underlying theory of citizenship is why the particular words used in the Fourteenth Amendment were chosen and not others. If you don't understand the history, you don't understand what the words actually chosen mean, and so you come up with anachronistic interpretations about what the words "plainly" meant at the time.

The irony is that Whelan argues that folks like me, who have spent some time thinking and writing about the history of the Fourteenth Amendment and about Brown v Board of Education, "can't be trusted", when in fact his posts suggest that he himself knows little about the history of the period. This is what I mean by "bad originalism."


Comments:

Ah, I see the original writer has the usual snarky sentiment about those darn clueless living constitutionists, when in fact his own views cannot be held up to scrutiny.

As to the Civil Rights Cases, a good originalist case probably can be made to suggest they were wrong decided. It is striking, at any rate, how the Rehnquist Court repeatedly cites them as if they are worth of our respect.
 

I have been focusing upon the differences between original meaning and original intent in reading recent articles by Randy Barnett, who is hell bent on "Restoring the Lost Constitution", even if it may not be lost. (I think Senator Byrd keeps it in his jacket pocket.) Now you toss in "original understanding". Is this the same as original intent or original meaning, which presumably differ from each other. And at the same time, articles are popping up on the 100th anniversary of Lockner, including one by Barnett who is spending a great deal of time in the Constitutional Lost and Found Department. And the New Deal is under attack from so many directions that I am spinning. Even Chief Justice Marshall is under attack. How can the current constitutional debate be calmly addressed so that "We the People" can be bettered informed? You and other academics must keep us in mind. Now, just what is "original understanding" and by whom?
 

Professor Balkin-

How does one choose among the modalities when, like in Brown, they are in conflict?
 

I think it's impossible to derive original intent anyway. Legislation is a compromise and so unless you have each senator/rep on record declaring what they actually 'meant', you're playing a guessing game (and usually an opportunistic one). That said, I think it's possible to discern that certain intentions are beyond the realm of possibility, based on the same historical analysis Professer Balkin provides here.

On the most general level, it seems a dubious notion that Congress would consider the 14th as applying to school segregation in the years immediately following the civil war, when it was barely ready for it 86 years later. The racial climate was far more oppressive, in the north as well, in the late 1800s than in the mid 1950s.

Speaking of compromises, the extraordinary circumstances the 14th passed under is another interesting historical vantage to look at this (Southern congressmen could not regain their seats unless they approved) - would the Northern authors really consider the 14th to include mixed-race schools? In the years following its passage, Congress tolerated some truly vile laws in the South that facailly undercut any definition of social equality and didn't get around to using its sec. 5 powers until much later.

Whelan and Barnett are so concerned with making the 'left wrong' that they're missing the forest for the trees, and fixating on minutia that they'd see is fairly contradictory if they only pulled back.
 

I think we need to be clearer about what, exactly, originalism is. I think the Constitution is partly alive and partly dead, and that we should use distinctions of long pedigee from the philosophy of language to mark the difference. We should distinguish between the constitutional language's originally-understood meaning (Fregean sense/Millian connotation/Carnapian intension), on the one hand, and its originally-understood application (Fregean reference/Millian denotation/Carnapian extension), on the other.

The extension/application/reference/denotation of constitutional language represents tangible outcomes, while its intension/meaning/sense/connotation is a function from possible worlds to extensions. As a result, we need to know both an expression's intension/meaning/sense/connotation and the facts about the state of the world in order to know the expression's extension/application/reference/denotation.

We can, I think, sensibly be originalists about the intension/sense/connotation/meaning. But because the framers can we wrong about the facts, we should not be bound to their understandings of the constitutional extension/reference/denotation/application.

This is, in essence, the theory set out in Euclid v. Ambler Realty (1926):

"[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…"

The High Court of Australia promoted the same theory in Ex Parte Professional Engineers’ Association (1959) (quoted, e.g., here):

"We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes."

Turning to Brown, there may be good reason to think that the ratifiers of the Fourteenth Amendment did not think it banned segregation, or even thought it did not ban segregation. But the ratifiers' failure to believe that their language had a particular extension, or even their affirmative contrary belief, is not dispositive for originalists who support Brown. They may simply not have considered the question, and their contrary conclusion may have rested on incorrect factual premises.

James Wilson's opinion that the Civil Rights Bill of 1866 did not require desegregation of schools, for instance, rested on a belief that education is not a civil right. He said, "Nor do [the terms of this bill] mean that all citizens shall sit on the juries, or that their children shall attend the same schools. These are not civil rights or immunities. ... It is not the object of this bill to establish new rights, but to protect and enforce those which already belong to every citizen." However, the Republicans disagreed with this factual assessment about the status of education just a few years later. Sumner rested his argument on the fact that schools were "open to all," and Representative Lynch said that the desegregation bill "simply confers upon all citizens, or rather recognizes the right which has already been conferred upon all citizens, to send their children to any public school."

On my version of originalism, we are free to disagree with Wilson in 1866 and agree with Sumner and his allies a few years later based on the persuasiveness of their arguments. However, it is the original meaning/sense/intension/connotation of the text that explains which factual mistakes are relevant and which are not.

Rather than a multi-modal approach like Fallon or Bobbitt would use, I think we should use just two modes: the original sense/meaning/connotation/intension, and the history of assessments of reference/application/denotation/extension. The original sense of the constitutional language is indeed binding--the constitutional touchstone--but assessments of reference, both by the framers and by later interpreters, are subject to something akin to Skidmore deference: Such assessments, "while not controlling upon [later interpreters of the Constitution] by reason of their authority, do constitute a body of experience and informed judgment to which [later interpreters] may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control."

On Bolling, I'm inclined to agree with McConnell. But Bolling does not have nearly the place in the pantheon that Brown does, I think.

I have much more on Brown and on my brand of partial originalism in a manuscript; send me a note if you'd like it.
 

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