A dialogue.

• Author: Amar, Akhil Reed
• Position: Equal protection doctrine

1. THE ORIGINALIST CASE FOR BROWN

   JED RUBENFELD: Akhil, you and I have a great deal in common, but also some fundamental differences, at least in principle. Equal protection doctrine might provide a good backdrop to make these differences clear. When it comes to Brown v. Board of Education, our disagreements are not of a fundamental nature. You're inclined to be much more accepting than I of the claim that the Fourteenth Amendment was originally understood to bar racial segregation (at least of some kinds), so you don't see Brown as the revolutionary case that many of us do. I take Brown to be a clear case of the rejection of an original No Application Understanding; you don't. But this is not a fundamental disagreement because, if I understand you correctly, you do not object to my central thesis: Original No Application Understandings may be rejected when doing so does justice to the text and the original paradigm cases. (1)

   But you and I do have fundamental disagreements on other matters of equal protection law, because--again, if I understand you correctly--you believe in something I don't. You believe in foundational No Application Understandings, whereas I say that the only foundational paradigm cases are Application Understandings. For you, the inapplicability of the Fourteenth Amendment to "political" rights such as voting was part of the original understanding and remains binding on judges today. In other words, on your view, the Fourteenth Amendment cannot today be properly read to strike down racial discrimination in cases involving "political" rights.

   With respect to racial discrimination in voting cases, you will of course point out that the Fifteenth Amendment takes care of things. But doesn't this mean that it would be perfectly constitutional for a state to deny blacks (on the basis of race) "political" rights other than voting? The Fourteenth Amendment would not apply because, on your view, you are bound by the original understanding that the Fourteenth Amendment would have no application to "political" rights. And the Fifteenth Amendment would not apply, because that Amendment only concerns the right to vote. Do I state your view correctly? If so, does this implication of your view cause you any concern? Are there any examples of other nonvoting political rights that you can think of to which this view might apply?

   AKHIL AMAR: Jed, I like your idea of discussing equal protection issues as a way of illustrating the similarities and the differences of our approaches. In a nutshell, I think the Reconstruction Amendments, rightly read, plainly prohibited Jim Crow in 1896 and 1954. On the other hand, I also believe that Section 1 of the Fourteenth Amendment simply does not apply to political rights such as voting. And so many voting rights and other political rights cases that the modern Court has analyzed under the Equal Protection Clause would, I believe, be more properly considered under the Republican Government Clause of Article IV and various voting rights Amendments, beginning with the Fifteenth.

   If it's okay with you, let's start with the issue of state-mandated racial segregation--Jim Crow--and then work our way forward toward voting rights. As I read the text and history of the Fourteenth Amendment, a state would clearly be prohibited from branding a person as a second-class citizen--as an inferior--simply because he was born black. (This is the principle that I believe is affirmed in the Amendment's first sentence.) Thus, a state law whose candid preamble explicitly proclaimed that black Americans are hereby declared inferior to white Americans would, I believe, violate the core meaning of the Amendment. (In this, I think I rather closely follow your paradigm case method, as you have noted.) The question as of 1896 or 1954 is thus for me a simple one: Does the regime of Jim Crow--a vast and pervasive system of racial regulation--in fact proclaim just this message in its purpose, effect, and social meaning?

   My answer to this question is that Jim Crow was, in both 1896 and 1954, a rather clear case of governmental action seeking to create and reify a constitutionally impermissible caste structure, a regime of second-class citizens for those born with dark skin, a vast state program that stretched out its tentacles to keep blacks down. Jim Crow was never equal in fact or in purpose--or in how it was perceived by society, both white and black. Such a system of racial apartheid thus violated the central meaning of the Reconstruction Amendments.

   Of course, I am aware that some--many, in fact--of the supporters of the Fourteenth Amendment denied that it would ban all forms of segregation. But many other framers and ratifiers disagreed. More to the point, the precise nature of the pro-segregation argument that came from the framers and ratifiers in the 1860s does not cause me to read the text of the Amendment as somehow inapplicable to segregation. Some segregationists claimed that segregation could and would in fact be equal. But Jim Crow was not equal in 1896 or 1954 and genuine civil equality is the constitutional test, as set out by the text. Other segregationists may have persuaded themselves that the Amendment did not apply to formally symmetric laws imposing restrictions on both races: Blacks over here and Whites over there. But nothing in the text signals its categorical inapplicability to symmetric laws. True, symmetric laws are not always and necessarily unequal on my view; but neither are symmetric laws categorically exempt from the equality test laid down by the text. Yet other segregationists in 1866 seemed to believe that private schools that received irregular subsidies would fall outside the ambit of state action. But Jim Crow circa 1896 and 1954 was undeniably and pervasively the product of state action. And still other segregationists apparently believed that the Amendment did not apply to the federal government (including the galleries of Congress itself). But the first sentence of the Amendment most emphatically did apply to all governments, as did the companion language of the Civil Rights Act of 1866. (2)

   As I read the historical evidence, none of the segregationist arguments in 1866 were codified into the words of the Amendment itself in a way that supports Plessy or undercuts Brown. The Amendment's text thus fits better with the views expressed by its many antisegregationist supporters and ratifiers. I mention all this because I think you are rather too quick in dismissing the basic originalist argument for Plessy's wrongness and Brown's rightness. The arguments that I have made thus far do concededly owe a large debt to your paradigm-case method--thank you!--but they do not strike me as wholly nonoriginalist. You seem to think that Brown cannot be defended on originalist grounds, but I wonder whether I haven't just done so, if a sensible originalism focuses, as it should, on the text in light of the history (including what you would describe as No Application Understandings, but focusing on the pervasiveness and precise content of those historical understandings in relation to the constitutional text). So before we turn to voting rights, I would be interested to know whether you find my defense of Brown nonoriginalist or whether you think it is originalism based on an implausible view of history.

   JED RUBENFELD: Certainly you are making an originalist argument. The question, I suppose, is whether it is convincing--and whether what you say about racial segregation will undermine your further claim that the Fourteenth Amendment (Section 1) does not apply to political rights. If by originalism we meant that a judge should strike down a specific kind of law under a constitutional prohibition only if there is evidence showing that the framers and ratifiers specifically so understood the prohibition--or at least that a majority of them did--then it sounds as if your argument is not convincing.

   I am only citing the evidence that everyone cites, but that Congress provided for racially separate schools in Washington, D.C., as well as allowed racial segregation in congressional galleries, does in my view argue against the notion that the Fourteenth Amendment's framers believed that the principles of equality and citizenship lying behind it required an abolition of racial segregation. (3) As far as the public understanding goes, the maintenance of racially separate schools in such large northern cities as New York and Cincinnati (even as integration took place in, say, Chicago) has always seemed to me to speak pretty seriously against the notion of a shared, common understanding that the Fourteenth Amendment barred such schools.

   Of course, you could take the view that where there was disagreement among the framers and ratifiers on an issue, and, further, that where the evidence does not convince you of a dominant, majority understanding on either side of the issue, an originalist judge is free to go either way, at least so long as the text permits it. Perhaps you feel that the applicability of the Fourteenth Amendment to racial segregation belongs in this kind of category. If that is your view about the state of the historical evidence, I am not sure I agree with it, but to me--and to you, if I read you correctly--it does not really matter in the end: Original No Application Understandings have been jettisoned in many areas of constitutional law. I think you agree with this observation, even if you do not agree that the phenomenon is as common as I have described it.

   Moreover, I think we agree about the basic idea that justifies this: Judges may override original No Application Understandings to do justice to the text in light of its paradigm cases. So even if there had been an original understanding that the Fourteenth Amendment would not bar racial segregation in public schools and other public facilities, neither you nor I would necessarily view courts as bound...