Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
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Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
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Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
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Deborah Pearlstein dpearlst at yu.edu
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Alice Ristroph alice.ristroph at shu.edu
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David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
AMA: Chris Green asks about Originalism and Loving v. Virginia
Chris Green: Does David Upham’s extensive work on the historical support for interracial marriage as a civil right (see https://ssrn.com/paper=2240046) undermine some of your confidence in Living Originalism at pp. 226-31 that marriage is only a social right, and therefore that we must abandon the civil/social/political trichotomy to uphold Loving?
JB: The right to marry is a civil right today as it was in 1868. The right to marry people of another race, however, was treated by most (but not all!) people at the time as a question of social equality. When the 1866 Civil Rights Act was debated, proponents hastened to assure everyone that it would not prevent states from banning racial intermarriage. That claim would make no sense if they believed that the right to marry people of another race was guaranteed by the civil right to marry.
As I noted in yesterday's post, the distinction between civil and social equality was developed in these debates to help preserve white supremacy even as blacks were becoming more equal. This distinction was crucial to maintaining status inequality even as important reforms took place. It is another example of what my colleague Reva Siegel calls "perservation through transformation."
The proponents of the 1866 Act did not assert that the 1866 Act permitted states to ban ordinary commercial contracts between blacks and whites. But they did say this about marriage. How could they maintain this, if marriage is a civil contract?
The idea was that who you chose to contract with in ordinary business transactions was a question of civil equality. But who you associated with in social relations, who you let join your private club, who you invited into your house as a social guest, and who you let become part of your family, were questions of social equality. The law could not make social unequals socially equal, and federal law should not try to do so. Hence proponents claimed that the 1866 Act (and later, the Fourteenth Amendment) did not purport to alter existing social inequalities, or enforce social equality among the races. What they meant by this was that states would continue to be able to maintain the social inequality of the races through legislation even though from now on they had to guarantee civil equality (and, after the Fifteenth Amendment, political equality).
This claim seems bizarre to us today, but many people in the nineteenth century made it, and it was common sense to them. How was it consistent with the protection of civil equality? The answer that people gave was that as long as limits on association were symmetrical between the races, they were constitutional.
We can see this logic at work in Pace v. Alabama, a unanimous 1883 decision of the Supreme Court. It was joined by Justice Harlan, who dissented in both the Civil Rights Cases and Plessy v. Ferguson. Pace involved two Alabama statutes that, taken together, punished cohabitation between members of different races more than cohabitation between members of the same race.
A key aspect of civil equality was that the same punishments and penalties should apply to everyone, regardless of race. How is Pace consistent with this theory? The answer is that the statute was regulating social relations, and the burdens on blacks and whites were symmetrical. The Fourteenth Amendment did not prevent this kind of law, because it said nothing about social equality between the races.
Justice Field wrote for all the Justices (including Harlan): "[T]he purpose of the [Equal Protection] clause ... was to prevent hostile and discriminating state legislation against any person or class of persons. Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected, for the same offense, to any greater or different punishment. Such was the view of congress in the re-enactment of the  civil-rights act [in 1870], after the adoption of the amendment....[T]he offense [of interracial cohabitation] cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination is made in [the enhanced] punishment [for interracial cohabitation] is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same."
I like David Upham's work a lot. He shows that there were a number of brave anti-racist Republicans who thought that this rationalization was just that-- a rationalization. They argued that the Civil Rights Acts, the Fourteenth Amendment, or both, made it illegal for states to prevent blacks and whites from marrying. Since marriage was a civil right, it had to be open to everyone regardless of the race of the spouses.
David shows us all this in considerable detail, building on the work of Peter Wallenstein and other scholars. But the fact that some anti-racist Republicans believed that the best construction of the Civil Rights Acts and the Fourteenth Amendment gave interracial couples a right to marry does not show that most, much less all, Republicans thought that this was the legal meaning of the Civil Rights Acts or the Fourteenth Amendment. It does not show that most of the Congressmen and Senators who voted for these Acts or the Fourteenth Amendment thought so. And it certainly does not show that most of the state legislators who were necessary to adopt the Fourteenth Amendment thought so. The claim that, in 1868, most of the people necessary for the passage and the adoption of the Fourteenth Amendment believed that the civil right to marry included the legal right to racial intermarriage is simply not supported by the history.
One might object: The proper question is not what people expected these laws to do. The question is what the correct legal meaning as understood by well-trained lawyers of the time was. That is, instead of looking to the original expected application, we should look to the original legal meaning. But posed in that way, the answer is still the same. David has shown that well-trained lawyers during this crucial period could reach anti-racist conclusions, and some did! But he hasn't shown that most well-trained lawyers agreed that this was the correct legal meaning. The civil/political/social theory was developed by lawyers and politicians during this period to keep blacks in a subordinate position even as blacks were gaining some measure of equality.
This is yet another example of why moving from original expected applications to original legal meaning often doesn't change the result, and may be equally problematic on questions of race and sex. Lawyers in the nineteenth century were not stupid, and the legal meanings they assigned to texts were designed to mesh with their assessment of the practical consequences of adopting those texts. That is why most lawyers in 1868 would have insisted that the legal meaning of the Fourteenth Amendment did not include the right of racial intermarriage. Put another way, had it been generally understood by lawyers and politicians that the legal meaning of the Fourteenth Amendment prevented states from banning racial intermarriage, the Amendment would not have been adopted.
In your last set of questions for me, you explained that we should look to "the ways in which the founders connected their principles to the text." Under that test, David has shown us a minority position among lawyers and politicians. He has not shown us the majority position. If your view is that the minority position was correct in 1868, then you aren't really following how "the founders connected their principles to the text." Instead, you are following the minority of the founding generation that you like and claiming that it is the original legal meaning.
If we adopt the thin theory of original meaning, however, then we can use the legal views of anti-racist Republicans as a powerful resource for arguing about what the best legal construction of the Fourteenth Amendment should be today. Under this approach, we don't have to say that the minority position is the majority position. We don't have to pretend that most lawyers held views they did not actually hold. We don't have to twist the history to suit the outcome we know is right. That is because in constitutional construction, history is a resource, not a command. We can say that although most lawyers in 1868 continued to justify white supremacy, a small number of brave people did not. They should be our role models today in constructing the document.
If we were really bound by "the ways in which the founders connected their principles to the text," we would have to accept that Loving is wrong today. The Founders' construction of the civil/social distinction was designed to ensure that blacks and whites would remain social unequals and that states would still be permitted to maintain their social inequality. This set of principles was the price of passage of the Civil Rights Acts and the Fourteenth Amendment. We should not have to pay that price today.
I like David's work not because it reveals a unitary original legal meaning, but because it shows us the diversity of views about law during Reconstruction, and how we might use the past in constitutional construction today. He shows us that even in a period in which many people were very racist by today's standards, there were people who understood and argued that bans on racial intermarriage violated the Constitution.
His work is an example of a more general point: The past is more complicated than the stories we often tell ourselves. It is full of many different positions, some of which are quite admirable, even if they are minority positions or forgotten positions. And because of this, there are elements in the past that we can bring to bear to tutor us in the present.
One last point about David Upham's valuable work. How does David explain Pace v. Alabama? Simple. David does not assert that Pace v. Alabama was wrong on its facts. Interracial cohabitation was not a civil right like marriage. Indeed, David writes that enhanced criminal penalties for blacks and whites having sex was "almost certainly" consistent with the original meaning of the Fourteenth Amendment. See Upham at 217; id. at n.16. As I read David, therefore, under the Fourteenth Amendment's original legal meaning, interracial couples could even today be punished more severely for having sex outside of marriage than same-race couples. Indeed, since there was no civil right to sex outside of marriage, a state could punish *only* interracial couples for cohabiting as long as both parties were given the same penalty. (That is under the assumption, of course, that Lawrence v. Texas is not required by the original meaning of the Fourteenth Amendment.)
Put another way, even if David were able to explain Loving v. Virginia as a matter of original legal meaning, he does not purport to show why McLaughlin v. Florida is correct under the original legal meaning of the Fourteenth Amendment. This is yet another argument for a thin theory of original public meaning. I don't think we should have to accept a version of original public meaning that would allow the State of Alabama, in 2020, to punish unmarried people of different races from having sex with each other. Posted
by JB [link]