Wednesday, November 22, 2017

Bolling v. Sharpe and the Bill of Rights

Gerard N. Magliocca

The Supreme Court's 1954 decision to "reverse incorporate" the Equal Protection Clause into the Due Process Clause of the Fifth Amendment is a classic example of something that makes practical sense but rests on an elusive theoretical ground. Bolling v. Sharpe held that racial segregation in the public schools of the District of Columbia was unconstitutional. Given, though, that the Equal Protection Clause applies to only the states, how could federal school segregation violate that provision?

The Supreme Court replied that "the concepts of equal protection and due process, both stemming from our American idea of fairness, are not mutually exclusive." The opinion added: "Segregation in public education is not reasonably related to any proper governmental objective and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the [Fifth Amendment] Due Process Clause." And since "the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government."

In writing my book on the Bill of Rights, I've come to believe that one way to understand Bolling is as the Supreme Court's declaration that the Equal Protection Clause is part of the Bill of Rights. A more precise way of saying that would be to define the Bill of Rights as the first ten amendments plus the Fourteenth Amendment (or, perhaps, Section One of the Fourteenth Amendment). This definition makes sense given that incorporation was accomplished through the Fourteenth Amendment, and the drafter of the Equal Protection Clause was ahead of his time in describing the first eight amendments as the Bill of Rights. Legal change, though, often happens indirectly or through what a bridge player might call a finesse. Here the twist is that the Supreme Court proclaimed (after the Bill of Rights was established firmly in the national imagination) that the Equal Protection Clause was really in the 5th Amendment as was part of the Bill of Rights all along.

I confined this point to a footnote in the book, but may explore the implications further someday.


I don't have any problem with Bolling, but I think a better approach would be to recognize that equality of citizens is a necessary condition of republican government. That principle can be supported both by express provisions and on theoretical grounds including the basic premise of voting in which all votes (are supposed to) count equally.

Sometimes an amendment merely adds a provision to the Constitution. An amendment may specifically and directly impact a provision in the Constitution. An amendment may be construed as implicitly incorporating provisions in the Constitution to be applicable to the states. And apparently an amendment may be construed as amending a provision in the Constitution by implication. SCOTUS does the construing when the amendment is not specific or direct. As to incorporation, SCOTUS has done so piecemeal and certain of the first eight amendments have yet to be incorporated. How does originalism handle all this?

Originalism goes back to that speech on the 14th amendment by Howard (Starting pg 27 65);

"To these privileges and immunities, whatever they may be — for they are not and cannot be fully defined in their entire extent and precise nature — to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments."

The 14th amendment was, in fact, meant to incorporate amendments 1-8 against the states. (In addition to other liberties elsewhere guaranteed.) The only reason this didn't happen in the 1800's is that the Supreme court set out to render the 14th amendment void by bad faith interpretation. The only reason it hasn't fully happened today is that the Court has not yet abandoned entirely that exercise of bad faith. I assume because it is always loath to admit that prior Courts have behaved so disgracefully.

To that end, of not admitting just how awful the Slaughterhouse decisions really were, the Court invented "substantive due process" as a work-around. And has incorporated piecemeal what was intended to be incorporated in one fell swoop over a century ago.

The work of undoing Slaughterhouse is still not done.

But the current originalism movement that started in the 1970s and has been continuing to evolve focuses on the original public meaning of the text of the Constitution and its amendments as of the times of their ratification (supposedly an objective standard), not on the intent of the framers or any one of them. The New Originalism of Solum, Whittington and Barnett provides that if the original public meaning back when is not clear, then resort must be had to the construction zone, to resolve constitutional sinkholes for what is not clear from the text. As to the method and timeframe for the construction zone, it isn't quite clear if such are somehow determined as of back when or perhaps to address current circumstances. Barnett and another look to back when for the "spirits" to determine the construction, perhaps the original public spirits back when if the original public meaning back when was not clear. Query: Does one have to wear a hardhat in the construction zone?

In any event, originalism is a very broad umbrella with various theories/versions. Those interested might check out:

Mitchell N. Berman & Kevin Toh (2013) available at:

By the Bybee [expletives deleted[, the author of the new "Grant" in the course of an interview on PBS Newshour tonight referenced a civil rights movement in the late 1860s, 1870s that was successfully thwarted, to compare with the civil rights movements of the 1950s, 1960s that survived efforts of the deep South to thwart them, only to face efforts by the Trump Administration currently to limit civil rights advances.


"The 14th amendment was, in fact, meant to incorporate amendments 1-8 against the states."

The only evidence our avowed textualist provides is a bit of...legislative history? I guess I want to say you can't make this stuff up again, but a person who says they are a textualist arguing that the 14th, with its text, had the plain public meaning of incorporating the rights in the BoR is going to have engage in making stuff up. The ratifiers knew how to say the words 'rights' which appear throughout the BoR but not at all in the 14th, how can it have been meant to incorporate the BoR rights when it then explicitly sets out one of those rights (due process) separately, etc.

For the record, I support incorporation doctrine, but I'm not a textualist.

I think of much interest is the movement of so many conservatives like Brett to a pro-incorporation position. Incorporation was championed by the archetypical liberal jurist Black and the immediate reaction of most conservatives at the time was strong disagreement, to put it mildly. Conservative jurists at the time were of course big fans of 'states rights' and to their credit they rightly saw that incorporation was probably the largest abrogation of power from the states and to the federal government in our history. From now on federal courts could use the wide ranging federal Bill of Rights to police the states (who, of course, according to any coherent 'states rights' position have their own Constitutions and courts to interpret them).

Today's conservatives want their cake and to gorge on it too, to constantly harp about 'states rights' but just as constantly ask the federal government to poke their nose into state matters and overturn them whenever they do some pesky, liberal thing. State's rights was always held with a great deal of tension, but I think one of the biggest political developments is how conservatives just decided to chuck that tension by chucking anything like principle in the area.

What's going on is that we're not fighting the last battle. At one time, states were where the threat to individual liberty was. Now, the federal government has centralized so much power, IT is where the threat to liberty is, and if you're going to fight for liberty, you're going to be fighting federal power, not state.

Let me note that Thanksgiving is a collective holiday, not a libertarian celebration (although libertarians can be turkeys quite often)..

Brett's " ... and if you're going to fight for liberty, you're going to be fighting federal power, not state." ignores that it was the federal power via SCOTUS that resulted in the incorporation doctrine that extended rights from violation by the states.

if you're going to fight for liberty, you're going to be fighting federal power, not state.

To some degree, this depends on what you mean by "fight for liberty." For a truly appalling instance of abrogated liberty reported this week, see "23 Years for Murder. He Didn’t Do it. What Went Wrong?" in the NY Times, at . For persecuted minorities, the fight for liberty (or even for life itself) is a fight against the power of their state, not of the federal power, although the case might be made that the Trump Era is making some changes here.

But I suspect those minorities are not on Brett's radar except as obstacles. Or do black lives matter?

Query: Exactly what are the components of Brett's " ... fight for liberty ... " that he feels call for " ... fighting federal power ... " especially with the GOP controls over the Executive and Congress and a conservative majority at SCOTUS?

Off topic: Mark Tushnet has a new quite short but significant post at this Blog on "But Gorsuch ... " However, comments are not accommodated. I just finished reading Linda Greenhouse's NYTimes column titled "A Conservative Plan to Weaponize the Federal Courts" that adds meat to Mark's post on the role of the Federalist Society under the Trump Administration.

Shag: Let me note that Thanksgiving is a collective holiday, not a libertarian celebration...

Libertarians use Thanksgiving as a morality play. The original Pilgrim colony was a collectvist commune which gave individuals an equal share of what everyone produced. The colony almost starved to death because of the resultant free riding. What saved the colony and enabled Thanksgiving was an abandonment of collectivism and a reinstitution of individual responsibility.

As a holiday, Thankgiving was originally a religious harvest festival thanking God for His many blessings. For the faithful, the holiday is still an opportunity to express thanks to God.

Not seeing your celebration of collectivism.

"Now, the federal government has centralized so much power, IT is where the threat to liberty is, and if you're going to fight for liberty, you're going to be fighting federal power, not state."

This is an incoherent response since my point was that incorporation, which conservatives like yourself know support, represented a huge shift in power from the states to the federal government. After incorporation lawsuits in federal courts applying the federal BoR to states exploded as how states ran everything from their schools, to their parks, to law enforcement and criminal justice policy now became matters federal judges would decide.

"Libertarians use Thanksgiving as a morality play."

Leave it to libertarians to take a holiday with *giving* in the very title and make into a paean to selfishness.

"The original Pilgrim colony was a collectvist commune which gave individuals an equal share of what everyone produced. "

This wacky idea came from this commie text:

"And all the believers met together in one place and shared everything they had. They sold their property and possessions and shared the money with those in need." Acts 2:44-45



You might find this textual examination of the P&I Clause to be interesting.


Mr. W:

Religious teachers in most traditions live off of goods and services provided by the people. Before this can happen, the people must create those goods and services. The Pilgrims’ error was attempting to base a political economy on the principles of dependent religious teachers.

The individual responsibility to create or trade for the goods and services we need to live and the property right to our creations and the things for which we trade do not preclude charity - an individual’s voluntary provision of goods and services to others who cannot provide for themselves. Ayn Rand was a brilliant philosopher of individual freedom, but her fundamental error was to reject charity. Charity allows a free society to function without theft.

The Plymouth Colony no doubt took inspiration from the Bible, but it's important to remember also that it was a corporation. Corporations create agency problems, as is well-known and can be found quickly on any search.

Thus, historian Nick Bunker describes the problem at Plymouth: "Under the terms of the contract with Thomas Weston, which made the colony a common stock, for the first seven years no individual settler could own a plot of land. To ensure that each farmer received his fair share of good or bad land, the slices were rotated each year, but this was counterproductive. Nobody had any reason to put in extra hours and effort to improve a plot if next season another family received the benefit. So, as Bradford says, they abandoned what he calls the 'common course and condition,' and began to allocate the soil in lots that, in due course, the owners could keep or sell." Making Haste From Babylon, p. 400.

So while Christian tradition was important in the concept of sharing, the Plymouth colony shared everything because the corporate structure demanded it.

"The 14th amendment was, in fact, meant to incorporate amendments 1-8 against the states."

The author wrote a bio on John Bingham (drink!*) so is more aware than most about the background of the 14A.

I have read a sizable amount on the amendment over the years. Suffice to say, what it "meant" to those who voted, ratified and lived at the time (that is the original understanding of the public as compared to radical republicans, let's say), is something of a mixed bag. The basic core was citizenship for blacks, a certain level of equality particularly in civil rights (defined less broadly than today) and protection of certain basic liberties.

A total incorporation of every provision of the first eight amendments including grand juries? Much less clear even if John Bingham and a few others made some reference. Also, why stop at eight? There was also an understanding of other liberties protected so the 9th entered the conversation too.

The general understanding as well as a practical/appropriate way to apply the amendment is to apply it over time, case by case, the understandings of history and experience determining how it is specifically applied over the years. Some general basic principles was deemed to have been ratified, the specifics left for the ages, including congressional and judicial action. For those who care what original actors "meant," I have cited people like James Madison and John Marshall reaffirming this principle.


* Sorry. Wrong blog.

The eponymous participant of this blog -- going back to the original posting -- took part in an exercise where various people determined what Brown v. Bd. should have said. They provided, as does Mark Field, various ways to approach it.

I'm not really sure how much the Bill of Rights adds to this and think the author might be forcing the point a tad. But, that might be part of it. Equal protection has become a basic liberty that "Bill of Rights" as a whole now reflects.

I'm fine with the ruling of Bolling v. Sharpe. There are various accounts of the meaning of due process of law that explains how it has some degree of an equal protection component. This understanding grew over time and the nature of "due process" itself is that it develops over time in basically common law fashion. This was understood to be an aspect of the concept at the beginning so citation of the specific understanding in 1791 if some practice was acceptable would be improper at any rate. Anyway, as James Madison noted, republican government assumes a certain basic level of equality as does the original Constitution. Slavery was an exception but the 13A handled that.

Particularly after the 13A and the national citizenship provision (see also one or more of the "opinions" in that book), "due process" required some basic racial equality when federal governmental action was involved. Bolling cited a 1890s opinion stating said principle. The specific reference in equality in the 14A suggests a somewhat stricter standard that pops up, e.g., in immigration matters.

Should Thanksgiving be understood in originalism terms? Or has Thanksgiving, like much else, evolved since its Pilgrim origins? Check out:

My stocks and bonds are a tad different here in current day MA from those back in the days of the Pilgrims. And it's interesting that venison rather than turkey was the main course back in Pilgrim days. In my Brookline neighborhood, wild turkeys are a common sight, usually in groups, along our streets and backyards. We generally keep a respectful distance away. But I haven't seen any this past week. I do have some Wild Turkey at home, for medicinal purposes, of course, or to engage in the John Bingham drink game.

"Now, the federal government has centralized so much power, IT is where the threat to liberty is"

As in the past, the state government, in fact local government, is for loads of people more likely to be where the most serious and/or direct threat to liberty is in many cases. Concern for federal power was there from the founding in certain quarters.

Query: Do constitutional rights conferred on persona impute constitutional responsibilities on their part? Or does selfishness prevail over selflessness?

Brett: The 14th amendment was, in fact, meant to incorporate amendments 1-8 against the states. (In addition to other liberties elsewhere guaranteed.)

I agree with this proposition primarily because there is no other reasonable definition for this clause.

Congress's use of the term "privileges and immunities" is problematic because this term generally refers to rights created by positive law or practice rather then negative guarantees of preexisting natural rights.


"Query: Do constitutional rights conferred on persona impute constitutional responsibilities on their part? Or does selfishness prevail over selflessness?"

Yes, in various ways.

There is a general principled responsibility, such as on voters, though this is often a sort of moral responsibility that the government can not compel (it is open to question if a requirement to vote is acceptable, though perhaps so).

Then, there are basic responsibilities such as avoidance of treason [a non-citizen might commit treason but there has to be some minimum connection which brings forth certain rights], service in the militia and juries.

Finally, basic membership in society brings forth responsibilities, especially if they do things like have public business. The latter brings forth rights, but responsibilities are brought forth too.

Shag from Brookline said... Query: Do constitutional rights conferred on persona impute constitutional responsibilities on their part? Or does selfishness prevail over selflessness?

The Constitution is meant to order government, not the people.

Prohibiting the government from abridging our liberty cannot impose any legal duty on the people. Such a duty would itself be an government abridgment of our liberty.


We have two moral duties which a limited government may turn into legal duties - the duty not to harm another and the duties or service required to operate a republic - military service, jury duty, giving testimony as a witness, etc.

SPAM, as expected, as a libertarian chooses selfishness over selflessness. Apparently the Preamble's "We, the People ... " is a throwaway and is to be disregarded.


This might be hard for a progressive to understand, but here goes...

1) Living our lives how we please so long as we do not harm others is not selfishness.

2) Using the government to direct your neighbor's life is tyranny.

3) Using the government to take your neighbor's property is theft.

"We the People" established a Constitution creating a representative republic of limited, enumerated powers, which we further limited with a Bill of Rights, as the best means "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."

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