Originalist Judicial Thought--Is it Inconsistent With Brown and Loving?

As many of you may know, I am an originalist, but one of the most vexing criticisms of our line of thought is that it is inconsistent with our support of some pretty basic cases that have brought our country into the modern age, most relevantly Brown, Loving, and the sex discrimination cases.

Any serious student of history would have to concede that the drafters of the 14th Amendment did not believe that they were prohibiting segregated schools, anti-miscegenation laws, and laws which discriminated against women. The 14th Amendment itself permitted state laws which limited suffrage to men, and the Congress that passed the 14th Amendment permitted segregated schools in Washington D.C. and did so for the next ninety years.

Nonetheless originalists like Scalia, Bork, and Thomas have all given various defenses of Brown. They give some variant of an argument that regardless of what the framers of that amendment argued, they enacted a higher ideal that was intended to eliminate racial inequality and only through the passage of time did “we” come to realize that segregation was inherently unequal or that laws against interracial marriage did real harm to blacks and not to whites.

I can agree with all of that, but when you go that far, aren’t the originalists doing the exact same thing that they criticize the liberals for in cases like Obergefell? Merely searching for some grand principle and allow the judge to fill in the blanks in contravention of democracy?

I contend that it is an interesting criticism and I do not really have a response yet. What say you?

IMO, all judicial philosophies are essentially ways to rationalize and explain one’s own preferences based on one’s own sense of morality, ethics, pragmatism, etc. Some are better than others at explaining and rationalizing their own philosophy and how it is (supposedly) consistent or superior or whatever, but it’s all a polite fiction, IMO, that we choose to entertain because it makes things run a bit smoother than just admitting that this is all just a game to see who is better at rationalizing and explaining a decision.

At least intelligent, thoughtful, and principled originalists like Bork, and textualists like Scalia thought through their gut reactions and put together coherent justifications of their own morality, ethics, pragmatism, etc. Sometimes, intelligent, learned and principled constructionalists found a nugget in those arguments they could agree with.

And vice versa, which is why not every Supreme Court decision is 5-4.

Right, but they did so in a way that arguably undercuts their entire judicial philosophy.

Remember the philosophy: A judge is not concerned about results. He or she is to apply the law as written and if the result is poor, then it is up to the legislature to change the law or to amend the Constitution. It matters not what the judge personally thinks about abortion, or same sex marriage, contraception, or interracial marriage.

You have to apply the text of the law or constitutional provision and look at the history and traditions surrounding it.

But with Brown, these guys essential said that they would not do that and applied some standard of higher generality. But when Kennedy does in in a same sex marriage case, or the left does it in Roe and Casey, that type of thinking is criticized as a judge merely importing his or her own personal preference to achieve a desired result.

IOW, if you see the Constitution as giving people a generalized right of privacy, and you believe abortion is a privacy right of women, then you find a right of abortion. If you believe in this general right of privacy, but believe that abortion is simply the murder of an unborn child, then you don’t believe that abortion is covered under this right. So, really, all you are doing is substituting your own view of abortion for what the Constitution requires.

Originalists and textualists have argued that is why we don’t look at such a high level of generality because it leads to judges only enacting their own preferences. But when these guys did the same thing by their unqualified support for Brown, they really have not addressed the fairly compelling argument that they are doing exactly the same thing.

And they are practically required to do that. Suppose that they said that as an original matter Brown was wrongly decided, but stare decisis compels us to keep it as good law. If the weathered the heat from that and any conservative was ever considered for a judgeship again, they would be forced to reconcile their jurisprudence with that idea.

If Brown was wrongly decided, we don’t keep building on it. We would keep it where it was at. Almost any racial classification could be upheld with a rational basis standard. It would be an enormous setback to the progress that has been made. As an upside (or downside depending on how you look at it) any form of affirmative action would be unquestionably constitutional, causing a conservative judge to completely flip flop on currently held positions.

The short version is that it seems to be a real inconsistency that conservatives and conservative judges have cheated on.

I’m thinking this thread over, and intend to come back and post a thoughtful response when I have managed to compose one. I would say that a lot of it depends upon what one means by being an “originalist”.

The OP mentions Brown vs Board of Education as one of the examples of important “creative” judicial thought, implying that originalist judges wouldn’t have agreed with it. Brown is often mentioned whenever there’s debate about liberal vs conservative social change. People love to say “without Brown, where would we be now? Brown was the basis for the whole civil rights movement, and in fact, all of modern American society”.

But I think the Brown decision wasn’t really as radical and liberal as it is often claimed to be.
Brown was a major event of course, but it didn’t not apply to all of American society, and didn’t change all of America. It applied only to the 12 southern states which had segregation. The other 38 states already had desegregated schools. The Brown decision merely forced the 12 southern states to do what was already being done by the vast majority of the country.

This was not a radical change that was imposed on America by liberal judges , with no input from democratically elected representatives. The people had already expressed their will through the legislatures of 38 states. There was no surprise. It was just a matter of judges in the highest court doing what they are supposed to do: taking existing law and applying it as the legislatures intended, to the country as a whole.

In contrast to Brown, Roe vs Wade was a shot out of nowhere that hit a lot of people by complete surprise.
At the time of Roe, all of the states had passed laws preventing abortion. The Supreme Court did not take existing law and apply it -they simply erased the existing laws , with zero input from the democratically elected legislatures. That’s a truly radical change.

Still, though, whether it is 1 state or 49, what is the originalist justification for Brown that doesn’t also allow for Roe or Obergefell?

I thought you didn’t post here as a lawyer.

Is this some sort of gotcha? When I post on legal matters, obviously my experience as a lawyer is relevant. When I post on social issues or on movies and the like, I am generally only posting as an individual. In any event, why are you concerned with how I am posting?

I look forward to your response. I think textualist and originalist, even though adherents to each fiercely deny that they are one in the same, they are really both sides of the same coin.

If a textualist looks at a phrase like “equal protection of the laws” then that is no help. Nobody thinks that is an absolute argument such that children should be able to buy guns or cigarettes, or that a law forbidding drunken driving is unconstitutional because it lands harder on alcoholics than it does teetotalers. There must be some construction of those phrases, and the next step for any textualist would be to look at what the writers of those phrases intended.

If more canons of construction are needed, then fine, but the textualist or originalist will always say that any construction must be based on some principled and objectively reasoned ground that will always and forever forbid unelected justices or judges from gleaning from a high level of generality their own policy preferences and enacting them into law.

A study of the intention of the framers of the 14th Amendment shows unquestionably that they did not believe that such language prohibited segregated schools, anti-miscegenation laws, voting rights for women, or even voting rights for adult male blacks (if so, then the passage of the 15th Amendment two years later would have been wholly unnecessary, and Section 2 of the 14th Amendment explicitly allows states to deny votes to blacks but they suffer a reduction in representation). The framers further clearly did not have the slightest inkling that women were being protected at all.

This would seem to foreclose any originalist or textualist from entertaining the idea that these things are protected by the Constitution.

In Lawrence, Scalia dissented by stating:

As much as we all might agree with this sentiment that any law which mentions race or has a discriminatory purpose should rise to strict scrutiny, such a thing is completely undercut by the text of Section 2 of the Fourteenth Amendment and almost universally disavowed by the framers and the public at the time. The Supreme Court early after the passage of the 14th held in Pace v. Alabama that anti-miscegenation laws were okay, in Miner v. Happersett that prohibiting women from voting was okay, and in Plessy that segregation was fine.

Against this background, no originalist could say what Scalia did with a straight face…that is unless he cheats by saying, as he has, that the Fourteenth and the Thirteenth combine together to outlaw racial based laws whether the public or the framers understood them to do so or not.

When he does that, he cannot criticize other Justices for finding a right to abortion, same sex marriage, or sodomy. If he is allowed to apply his personal preferences, then why not other Justices?

You said on June 16:When I post here, I am doing so as some guy who likes to come here for entertainment and/or education. I am not posting here as a lawyer.

Scalia hedged his philosophy by saying that he was a textualist and an orginalist, if I remember what Bricker would tell us. So I would guess he’s defending Brown on textualism grounds, not originalism.

Loving, I dont know. Brown fits, saying the plain text of the Thirteenth and Fourteenth outlawed segregation. But where does Loving come from, in a textualist point of view?

I tend ultimately to agree with iiandyiiii. Ultimately judges make decisions based on their own values, and then write their justifications. That’s why their political views are important.

And he still is not. He is not handing out legal advice. He’s discussing the law, sure, but in the same way you or I can and do.