an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Scalia's Biggest Problem isn't Brown, It's Bolling and Loving
Now that it is clear that Justice Scalia did not say that he would have dissented from Brown v. Board of Education, we can move on to the more genuinely interesting questions about Justice Scalia's views on race, originalism, and the Constitution.
Justice Scalia is well known for being deeply committed to the colorblindness principle (except, of course, where the rights of prisoners are involved). As a result he strongly associates himself with Justice Harlan's dissent in Plessy v. Ferguson, announcing that "Our Constitution is color-blind" and arguing that separate but equal facilities are unconstitutional (except, of course, prisons).
But even if Justice Scalia's methodology gets him to Brown v. Board of Education, it does not really justify much of modern equal protection law, including positions for which he has been the most ardent proponent.
This is not a claim that his views on race are not sincere; rather it is that they have little to do with his originalist methodology. Justice Scalia is, despite his protestations to the contrary, a living constitutionalist, just a very conservative one.
At the next public discussion with Justice Breyer, I hope people focus on what are really the hard race cases for Justice Scalia if he continues to maintain his version of original meaning originalism. (I should add that in my own version of originalism, these problems do not arise, because, unlike Scalia, I do not believe that we are bound by the original expected application of the text.). First, although it's clear that Justice Scalia would not have upheld segregated schools in the states, it's not clear that he would be able to strike down segregated schools in the District of Columbia. In particular, we don't have a good sense of what Justice Scalia thinks of the originalist case for Bolling v. Sharpe, which held that the Due Process Clause of the Fifth Amendment, ratified in 1791, prohibits racial classifications by the federal government. Consider this: in 1791 black people were held in slavery. It's hard to argue that this clause, interpreted according to the expectations of the late eighteenth century generation that framed it, prevents the federal government from engaging in racial discrimination. Moreover, Justice Scalia has long been an opponent of reading the Due Process Clause to have substantive content. If so, why isn't Bolling v. Sharpe an impermissible form of substantive due process, as impermissible as, say, Roe v. Wade? If Justice Scalia believes that Bolling is correct, it can't be because of his originalist views. Rather, it is, as he would say, a case where courts just made new rights up.
And, of course, if Bolling falls, then so too must the Adarand decision, which held federal affirmative action programs to a standard of strict scrutiny. Indeed, Justice Scalia's view, stated in a concurrence to Adarand itself, is even stronger-- he believes that race conscious federal affirmative action is almost always unconstitutional; as he puts it, "government can never have a "compelling interest" in discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction." But if so, what is the basis for that conclusion, given his views on original meaning originalism? It certainly is not consistent with the attitudes or actions of the framers in the Reconstruction Congress that enacted the Fourteenth Amendment. They passed various educational and welfare statutes designed for the benefit of blacks, including free blacks who had not been held in slavery.
Second, Justice Scalia has said that he stands with Justice Harlan, who dissented in Plessy v. Ferguson; In Plessy, Harlan famously argued that separate but equal facilities for railway passengers were unconstitutional. But Justice Harlan's views, like the views of the Fourteeth Amendment's framers, are quite unpalatable both to modern liberals and modern conservatives. Let's take a closer look at what Justice Harlan actually said in Plessy.
All the Justices in Plessy, including Harlan, shared basic assumptions about equality that also were the basis of the Reconstruction Amendments. The Justices of the Supreme Court, like the framers of the Fourteenth Amendment, distinguished between civil, political, and social equality.
Political equality was the equal right to vote and serve on juries. Civil equality was the equal right to make contracts, sue and be sued in courts, and own property. Social equality concerned rights of association and family formation.
The framers of the the Fourteenth and Fifteenth Amendments believed that these amendments guaranteed blacks civil equality and political equality, respectively, but not social equality. The classic example of social equality concerned interracial marriage and interracial sex. The framers and ratifiers of the Fourteenth amendment assumed that states could continue to outlaw miscegenation and interracial marriage. This was, in fact, an extremely explosive subject in 1868. Indeed, if the proponents of the Fourteenth Amendment had asserted that the Amendment prevented states from banning interracial sex or interracial marriage, it very likely could not have been ratified. They were therefore careful to dodge the question or suggest that the Amendment left this question to the states.
The distinction between civil, political and social equality explains what was really at issue in Plessy v. Ferguson. Was separation of the races in railway carriages a question of civil equality (like the equal right to make contracts) in which case it would be unconstitutional or a question of social equality (like issues of marriage and association), in which case separate facilities would be constitutional and only subject to a test of reasonableness?
In Plessy v. Ferguson, Harlan argued that the right to sit in a carriage or public conveyance was a question of civil equality, not a question of social equality. The majority disagreed, and held that who got to sit with whom was a matter of social equality; therefore blacks and whites could be separated. The Louisiana legislation requiring separate railway carriages only had to be reasonable and not designed to annoy or harass blacks.
It is important to stress that, like many other people in the nineteenth century, Justice Harlan also believed that the Constitution did not require that blacks be treated equally to whites where issues of social equality were concerned. He assumed that whites and blacks were not social equals, and probably never would be. This is in fact what he says in Plessy just before his famous language about the constitution being colorblind: "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." When Harlan said that our Constitution is colorblind, he meant that it was colorblind as to civil and political equality, but not social equality.
(An aside: Harlan's notion of colorblindness did not extend to other races besides blacks and whites. His view was that "[t]he destinies of the two races, in this country, are indissolubly linked together," but "[t]here is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race." In Harlan's view it was deeply unfair that "by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana [cannot]." I am quite sure that Justice Scalia does not share these sentiments.)
Harlan's view that blacks do not enjoy social equality is clear from his own language in Plessy. Perhaps more to the point, Harlan also joined the unanimous majority opinion in Pace v. Alabama, which held that Alabama could punish interracial sex more stringently than sex between persons of the same race. The result in Pace is not surprising from the standpoint of the original understanding of the Fourteenth Amendment. Issues of marriage and sex were the paradigmatic examples of social equality.
In 1967, the Supreme Court overturned the rule of Pace in Loving v. Virginia, decided in 1967 during the high water mark of the Warren Court. The Court dodged the history of the original understanding by claiming that it was inconclusive (which is not the case.). It held Virginia's law prohibiting interracial marriage unconstitutional.
Even if, under Justice Scalia's methodology, Brown is correctly decided, it's hard to hold that Loving is. The generation that ratified the Fourteenth Amendment expected that laws banning interracial marriage and interracial sex would be constitutional.
(Another aside: The framers of the Fourteenth Amendment also expected that most laws treating married women differently from men would be constitutional. Does Justice Scalia agree? As far as I am aware, Justice Scalia has yet to rule in favor of a constitutional sex discrimination claim while he has been on the Supreme Court. (Please correct me if I am wrong about this.) I don't know whether this is simply because has found all of the particular sex equality claims before him unpersuasive or because he does not believe that heightened scrutiny should apply to sex classifications and believes that the 1970s sex equality cases are wrong. Once again, I do not doubt that Justice Scalia strongly believes in equality for men and women. Rather, I doubt that you can get to constitutional guarantees of sex equality based on his interpretive methodology.)
Bolling v. Sharpe and Loving v. Virginia pose the real problems for Justice Scalia's methodology when it comes to race. In public settings, people should stop asking him about Brown v. Board of Education. There are plenty of other difficulties with his theory of interpretation that he has yet to work out.