If racial desegration, then same-sex marriage? Originalism and the Supreme Court's Fourteenth Amendment.

• Author: Bunch, Kenyon

1. INTRODUCTION

   Whatever constitutional scholars may think of Robert Bork's other views, most would agree with his conclusion that "Brown [v. Board of Education] (1) has become the high ground of constitutional theory.... [A]ny theory that seeks acceptance must ... account for the result in Brown" (2) and its progeny. (3) The Brown Court itself disavowed a theory of originalism (or the theory that the original understanding of a constitutional provision is authoritative (4)) in concluding that racially segregated public schools contravene the Fourteenth Amendment; it deemed historical evidence of that Amendment's original meaning "inconclusive." (5) In agreeing that the Brown Court's assessment of history was less than forthright, (6) most scholars go one step further. As Michael McConnell explained recently, "there is something very close to a consensus [among constitutional theorists] that Brown was inconsistent with the original understanding of the Fourteenth Amendment, except perhaps at an extremely high and indeterminate level of abstraction." (7)

   If the conventional wisdom still is against an originalist explanation for Brown's result, though, this "wisdom" certainly is not unchallenged. McConnell has written perhaps the best-known challenge, (8) but he is not alone. Michael Perry, for example, has concluded, "[The] consensus [McConnell described] is mistaken." (9) McConnell, (10) Perry, (11) and other scholars (12) who challenge the supposed antioriginalism behind Brown and racial desegregation have insisted, albeit with important variations, that the Fourteenth Amendment was originally understood to represent a broadly defined equality norm.

   Not a few constitutional scholars, however, remain unconvinced. More precisely, many question whether the norm or principle advanced by scholars such as McConnell and Perry in the name of the Fourteenth Amendment's original understanding reflects the Amendment's actual original understanding. In the opinion of these "skeptics" the Amendment's original meaning is much narrower than the equality principles defended by the "Brown is originalist" camp and too narrow to sustain Brown's result, or racial desegregation generally. (13)

   Contrariwise, if Brown's result or racial desegregation can be defended in originalist terms, some scholars have suggested that it is at the expense of the "conservative" view of originalism's implications for constitutional interpretation. (14) According to Michael Klarman, this is true of McConnell's defense of Brown: "It ... carries logical implications that one may doubt McConnell wishes to endorse .... [T]he same argument ... would justify expanding protected groups to include women, aliens, gays, etc." (15) If Klarman is right, McConnell defends a Fourteenth Amendment principle that "collapses the distinction between originalism and other, supposedly less constrained, interpretive theories." (16)

   In the view of yet another camp of scholars, the debate about Brown and the Fourteenth Amendment's original understanding is an academic exercise of little relevance to the Court's actual decision making. (17) The Court has simply embraced a broad equality norm in the name of the Amendment. (18) Although this norm may be defined more broadly than originalism can account for, the Court will no more relinquish this embrace than repudiate the outcome of Brown and its other racial desegregation decisions. (19)

   For those who have criticized the Court for its forays into the culture war (20) and demanded its retreat from this conflict, scholars' reactions to the Brown-originalism debate should be unsettling. The Court's "transgressions"--its usurpation of "political" authority to decide questions about the social and cultural order that properly belongs to citizens and their representatives--usually has been attributed by these critics to its adulteration of, or utter disregard for, the Constitution's original understanding. (21) However, assuming that fidelity to originalism would force the Court's withdrawal from the culture war, if Brown's outcome cannot be justified as originalist, the enemies of originalism have scored a critical victory. (22) If originalism can be disregarded on such a crucial question, why not disregard it on other questions before the Court? Conversely, if Brown's outcome can be justified as originalist because the Fourteenth Amendment represented a broad equality norm, originalism may offer no defense against some of the judicial decisions that the conservative (or socially conservative) critics of the Court condemn as "activist" usurpations of political authority. Indeed, on the newest front in the culture war, some scholars argue that true allegiance to originalism requires the Court to intervene and strike down the legal barriers to same-sex marriage. As these scholars would have it, if the discrimination forbidden in Brown offends the original equality principle in the Fourteenth Amendment, so does state discrimination restricting marriage to opposite-sex unions. (23) Nor does an originalist "strategy" for neutralizing the Court in the culture war appear to fare any better if, by dint of its previous decisions, the Court is irrevocably committed to a Fourteenth Amendment equality norm, or other norm, that--even if not originalist--validates supposedly activist (usurpative) judicial decisions.

   My purpose in this essay, broadly speaking, is to assess scholars' reactions to defending Brown's result in originalist terms. Can racial desegregation be rested on originalism without inviting more judicially authored social transformations, particularly the nullification of the legal barriers to same-sex marriage? Does it matter in view of the Court's Fourteenth Amendment precedent? Contrary to the opinion of many constitutional theorists, (24) I argue that these questions can be answered in the affirmative. Although my focus is on originalism's implications for Brown, racial desegregation, and same-sex marriage, the theoretical import of my analysis goes beyond these three issues.

   Following a brief but essential detour in Part II to discuss overlooked features of the originalist method of constitutional interpretation, I turn in Parts III and IV to an examination of the original understanding of the Fourteenth Amendment. Notwithstanding the Brown Court's reliance on the Equal Protection Clause, there is wide agreement among students of originalism that, if the enactors of the Fourteenth Amendment bequeathed us a principle (or set of principles) that can account for the result in Brown and its progeny, it is found in the Privileges or Immunities Clause. (25) The words of this clause--" No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" (26)--present two critical questions: (1) What was the original understanding of "privileges or immunities?" (2) What was the original understanding of state action that abridged privileges or immunities? (27)

   In Part III, I focus on the first question, which divides most scholars into roughly two schools of opinion. In one, there are those who hold that privileges or immunities were limited to a class of fundamental rights. (28) By contrast, those defending Brown's result as originalist maintain that privileges or immunities represented a category or class of rights broader than fundamental rights. At some risk of oversimplification, I describe this as the equality norm position. (29) Michael Perry (30) and Michael McConnell (31) have proffered two of the most thoughtful and well-developed arguments for this position. I critique their arguments at length because the shortcomings in their arguments demonstrate that it is more probable that the original understanding of privileges or immunities was limited to fundamental rights. However, I also explain that, contrary to the opinion of scholars in the fundamental rights school, (32) Brown's result and the Court's other desegregation decisions pursuant to the "state action" (33) concept (Brown's progeny) are consistent with the probable original understanding of fundamental rights. Treating same-sex marriage as a constitutionally protected fundamental right, on the other hand, is not consistent with this understanding. Nor can it be smuggled into the original fundamental rights principle as a specific instance of a more general or abstract constitutional right.

   In Part IV, I focus on the question of the original meaning of abridgment of privileges or immunities. It is clear that the Fourteenth Amendment's enactors were concerned, in some respect, with race discrimination. (34) However, I argue that it misreads the historical evidence to maintain that the "racist" character of such discrimination explained this concern. Perry's observations in this regard (35) exemplify this misreading. The "egalitarian" principle that Perry defends as part of an originalist definition of abridgment and then deploys to demand judicial nullification of state legal barriers to same-sex marriage is not, in fact, originalist.

   Nevertheless, there are two plausible explanations for the objections that the Fourteenth Amendment's enactors would have to conditioning the enjoyment of fundamental rights on race, and either of these explanations, as I hope to show, is compatible with the result in Brown and the Court's desegregation decisions. Neither of these explanations, however, lead to a conclusion that state policies prohibiting same-sex marriage constitute abridgments of a constitutional right. Nor is there any general theory of abridgment comporting with originalism that leads to this conclusion. I suggest that quite the contrary is true, and explain by addressing the importance of the Article V (36) constitutional amendment process on the establishment of such a general theory.

   Finally, in Part V, I evaluate the related claims that originalist assessments of judicial decisionmaking...