Ruth Bader Ginsburg, please return your law license

JB

My very enjoyable conversation with Matthew Franck about originalism continues. I noted in my last post that I had promised to say something about Matt's views on individual rights, and in the meantime Matt has helpfully responded to my last post on federal power, which moves the discussion forward. (Matt has been shy about calling me by my first name, but I'd ask him, please, don't stand on ceremony. Together the two of us have had more interesting discussions by now that I've had with many of my colleagues!).

There are many things I would love to spend more time on, including Matt's creative reading of Gibbons v. Ogden (ahistorical and almost certainly incorrect) and his very puzzling theory of what constitutional issues are political questions (I don't think he has a theory yet-- I suspect that, like everyone else, I'll have to wait for his promised book.). But I thought I'd get to the main question that really divides us.

The central disagreement between Matt and myself has been my distinction between "original meaning" and "original expected application." Matt, who subscribes to originalism as "original understanding," argues that my distinction "is untenable and unacceptable" for himself "and for any other orignalists [he] can think of."

I'm not sure that Matt is correct that the distinction is "untenable and unacceptable" for all other originalists. I can think of at least two offhand-- Ahkil Amar and Randy Barnett-- for whom the distinction is quite relevant to their work.

But in any case, my discussion has been with Matt. My central claim has been that Matt's version of originalism, which asks how people living at the time of adoption would have understood how the constitutional text should be applied, is "untenable and unacceptable," to use his words. It is untenable and unacceptable because no one living today could consistently use his model of originalism to guide their conduct in politics or in law.

No mainstream politician or judge-- whether liberal or conservative-- could consistently and thoroughly apply the original understandings of federal power or individual rights once they understood the relevant history. They would all have to be "faint hearted originalists," to use Justice Scalia's phrase.

Most Americans would be appalled at the consequences of the original understanding approach in both areas of rights and powers. That is true both of the readers of Balkinization, and the readers of National Review Online. It is true of liberals and conservatives, Democrats and Republicans. Original understanding originalism of the kind Matt is preaching, faithfully and consistently applied, does not legitimate the Constitution; it thoroughly delegitimates it.

This is the major disagreement between the two of us. In a previous post Matt noted "It may be that many modern rulings would fall by the wayside if the correct version of originalism were rigorously applied. Why would this be a vice and not a virtue?" It is a vice because our Constitution is a key source of political legitimacy. Matt's theory of how we should read our Constitution makes large parts of our system of government illegitimate, and the illegitimacy has been going on for a very long time. Matt's theory of original understanding, strictly applied, wipes out huge chunks of the New Deal, the National Security State, and the Civil Rights Revolution. It wipes out the most significant legal achievements of the twentieth century.

Matt's theory cannot explain why we legitimately have the legal and constitutional structures we do. It severs the connection between the legal and social practices of the American people and their Constitution. It undermines the legitimacy of the American legal system.

Forgive me for suggesting it, but I think this is a vice.

By contrast, the original meaning approach that I advocate can be used by liberals and conservatives alike. It makes sense of our existing political and legal traditions. It shows how and why our constitutional practices, including the ones that most Americans are proud of, are, for the most part, faithful to the Constitution. Liberals and conservatives may disagree about how to use it in particular cases. They may still disagree in good faith about Roe v. Wade and Lawrence v. Texas. This does not trouble me at all. Interpretive method should be a common discourse rather than an algorithm. It should offer a common framework in which people can reason about their common commitments to the Constitution.

The argument I am making is not, as Matt suggests, simply one designed to guarantee results I like. It is an argument of legal coherence or reflective equilibrium of the type familiar to students of moral and political theory. Our goal is to offer a theory of constitutional interpretation that makes the most sense of most of our current legal practices but that we can also use to continue and critique those practices. To do this we start from the assumption that much of our current legal system is legitimate and worthy of respect even if parts are illegitimate and need to be reformed, and then we move back and forth between our theories of interpretation and existing legal arrangements, adjusting our views on each in light of the other. Matt's approach, by contrast is not coherentist, and therefore, I would submit, it is also not very coherent.

Matt has demurred when I asked him what parts of the post-New Deal order he thought were constitutional under his theory, suggesting instead that we focus on specific examples. So let me be specific. In a previous post I asked Matt whether he thought the Fourteenth Amendment guarantees equal rights for women. He responded that Bradwell v. Illinois, which held that Illinois could deny women the right to be lawyers, "was rightly decided." He hastened to add that this "declares nothing on [his] view of women's equality."

As a matter of original understanding-- that is, original expected application-- Matt is probably right. The Framers of the Fourteenth Amendment believed that its guarantees were perfectly consistent with the common law coverture rules, under which women lost all of their rights upon marriage. They could not make contracts, they could not own or convey real property, they could not sue or be sued in their own names, and their husbands had the right to make all important legal decisions for them. Some states had modified a few of these rules by statute by 1868, but others had not. Under the original understanding, states would be free to retain these rules even today.

It's worth noting that Illinois did not deny access to the bar to married women, but to all women. However, the Court did not think this mattered. As Justice Bradley explained in his concurrence

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

I'm sure Matt does not agree with Justice Bradley's sentiments. But that is not the question. The question is whether our Constitution must be applied today in the way that Justice Bradley and his contemporaries would have applied it. Matt says yes. I say no: The text of the Fourteenth Amendment does not require it, and the principles underlying the text do not require it. Matt, by contrast, believes that the meaning of the text is identical (for purposes of legal interpretation) with its original understanding. I argue that this confuses concepts with their expected applications, and the meaning of a sentence with the expectations of the speaker who uttered it.

Most of the Constitution may have been written long ago, but it is a continuing legal command addressed to us in the present. To apply it in the present we must first understand the concepts that its words point to. If the concepts associated with its words have changed over time, we must apply the old concepts, otherwise we will be engaged in a play on words. So when the Constitution speaks of "domestic violence" in Article IV, it means "riots" not "violence between intimate partners." That is why we care about original meaning.

But because the Constitution is a legal command addressed to us in the present we must apply its concepts in our own circumstances in the present using our present-day judgment. When the Constitution says provide "equal protection of the laws," it tell us to do this now, and from our present perspective. It does not say provide "equal protection of the laws as people in 1866 would have provided it." When the Eighth Amendment says no "cruel and unusual punishments," it asks us to make that determination in the present. The text does not say no "cruel and unusual punishments according to the expectations of 1791."

This is the central disagreement between Matt and myself. Matt's approach delegitimates our government, because it maintains that women have very few rights under the Constitution and that states do not even have to let them become lawyers. (Hence the title of this posting. The nation's most famous legal champion for sex equality could constitutionally have been banned from becoming a lawyer in the first place. At least Thurgood Marshall was allowed to take the bar.) Adhering to Matt's theory of original understanding (as opposed to original meaning) also requires, among other things, that Loving v. Virgina is wrongly decided and that states could keep blacks and whites from marrying each other. To go back to Matt's original question, this is not a virtue of his method. It is a vice.

Matt's best response, I think, is that even if the Constitution does not guarantee women's equality, the political process can and should. Matt does not oppose women's equality. He supports it. But he wants it supported through democratic political means, not through judicial constructions and interpretations, no matter how well intentioned.

Fair enough. But the very same theory of interpretation that Matt champions also disables Congress from protecting women's equality. Matt's theory of original understanding does not simply leave the protection of individual rights up to the political process. It also strongly limits the ability of the federal government to protect these rights.

That is why I asked Matt whether he believed the Civil Rights Act of 1964 was constitutional. Matt did not provide a clear answer to this question. He said that he thought the 1875 Civil Rights Act-- struck down in the 1883 Civil Rights Cases-- was constitutional. I think he is right about that. I think the Civil Rights Cases were wrongly decided at least as to the scope of Congressional power. But the 1964 Act is much broader than the 1875 act and reaches into many more areas of local concern.

The 1875 act banned racial discrimination in places of public accommodations like "inns, public conveyances on land or water, theaters, and other places of public amusement." (It also banned excluding blacks from jury service, but the Court did not strike down that provision). These provisions are substantially the same as those in Title II of the 1964 Act; however Title II also extends to discrimination against religion. (By the way, for the non-lawyers in the crowd, "places of public accommodation" like restaurants and hotels are not owned by the state but by private individuals and corporations; they are called "public" because the common law traditionally imposed on them duties to serve the general public.).

Matt would need to explain why banning private religious discrimination in places of public accommodation would be within Congress's powers under the Thirteenth or Fourteenth Amendments under the original understanding. To do that he would probably have to say something about whether the Bill of Rights was incorporated into the Fourteenth Amendment; he has previously expressed some skepticism on that point. (For the record, I think the evidence for incorporation is quite clear, and I'd like to know why Matt is skeptical). (And by the way, I don't think that the original understanding of Congress's Commerce power would have allowed Congress to prohibit racial or religious discrimination in places of public accommodation, and as far as I am aware, no one thought so either when the Civil Rights Cases were litigated.)

More important for present purposes, Title VII of the 1964 Act goes well beyond the 1875 Act. It bans discrimination in terms and conditions of private employment on the basis of "race, color, religion, sex, or national origin." Title VII is the nation's foremost anti-discrimination law, and the model for other federal anti-discrimination laws banning discrimination against the aged and the disabled. If Title VII is beyond Congress's powers under the original understanding, many other anti-discrimination laws will fall as well.

I don't think Matt can justify Title VII of the Civil Rights Act under the original understanding of section two of the Thirteenth Amendment, section five of the Fourteenth Amendment, or the Commerce power. (Remember, here we are using his theories of original understanding, not my theory of original meaning).

The original understanding of section two of the Thirteenth Amendment might give Congress the power to ban all private racial discrimination in employment as a badge or incident of slavery (The Supreme Court thought so in Jones v. Alfred Mayer, Co., although actually I doubt the original understanding would have reached that far). However, the original understanding of section two would not give Congress the power to ban all private employment discrimination on the basis of religion and sex, and probably not national origin either.

Under the original understanding, section five of the Fourteenth Amendment might have given Congress the power to ban racial discrimination in places of public accommodation (for example, if one accepts Justice Harlan's argument about how to read the state action requirement.). Nevertheless, under the original understanding, Congress's section five powers would not have given it the power to ban purely private racial discrimination in employment. Nor would section five have given Congress the power to ban purely private discrimination against women or against religious groups.

This leaves us with the Commerce Power. I am fairly confident that the original understanding of the Commerce Clause in 1787 did not give the federal government the power to regulate the terms and conditions of private employment contracts throughout the country. If Matt knows of historical sources to the contrary, I'd be delighted to learn about them.

Matt has one other response, I think. I don't know whether this is what he would say, but it occurs to me as at least a possibility. Matt can argue that even if Congress couldn't pass Title VII of the 1964 Civil Rights Act to prohibit race, sex, and religious discrimination in employment, state and local governments could. That is, Alabama, Georgia, and Mississippi could still ban race, sex, and religious discrimination. They might not get around to it in 1964, but they would do so eventually. What the federal government could not do, however, is secure equal civil rights for women or blacks or religious minorities in these states before these states wanted to. Under this view, it was wrong of Martin Luther King to seek a civil rights bill from Congress in 1964. He should have tried to get Governor George Wallace and the Alabama legislature to pass one.
Posted 9:25 AM by JB [link]