Barnett's Response to Ledewitz's Rejoinder

I promised that the last post wouldn't be the last word on the subject. Here is Randy Barnett's most recent post responding to Bruce Ledewitz. Over the years, I followed this "originalism" debate in constitutional law fairly carefully. Perhaps I could be categorized as a "faint hearted originalist." The kind of originalism I would endorse is similar to that which has been espoused by among others, Barnett, Akhil Amar, Jack Balkin and Timothy Sandefur.

One issue I have is I often see it framed as though if we don't interpret the Constitution as "originally" intended, the Constitution can mean "anything." Well, here I stand for the proposition I don't think the Constitution should mean "anything" five members on the Supreme Court decide; there should be constraints and unhappy endings.

Where I do get a bit perplexed is given the broad generalities contained in the Constitution's text, and other ambiguities in the record, there often is more than "one" right answer to legal questions presented such that Justices will often have latitude on fundamental constitutional questions by virtue of the way the system is structured. Yet only one view can prevail. And issues of fundamental import turn on which view prevails.

What to do then?

Interpreting the Bible is analogous. We often hear certain preachers who argue for "one correct" understanding of the Bible say "it means X and only X" in an objecting sense, when in reality it's possible that it could also mean Y and Z.

Yet it's also true that certain positions -- A, B & C -- are not tenable. Certain understandings are more plausible than others; but there are also multiple plausible understandings of the text that contradict one another, where only one outcome is entitled to prevail.

So if someone said that the Bible teaches a Giraffe tempted Adam and Eve in the Garden of Eden, that's an easy one. It's false. End of discussion. Other questions aren't so easy (like what fruit was it that Eve was tempted with? Or what did Jesus mean when He said you should eat His flesh and drink His blood?).

That's what comes to mind when I read Randy Barnett's most recent post. Professor Ledewitz's claimed:

To put it simply, by 1954 de jure school segregation did not constitute equal protection of the laws, whether it did before or not.

To which Professor Barnett responded:

Fact check: Misleading. As Michael McConnell showed in the 1990s (see here and here), nearly everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it. As a constitutional scholar, Professor Ledewitz must be aware of this.  ...

Yes, I've heard it argued that under the original expected application of the 14th Amendment's text, the political legality of racial segregation was preserved (that is, the framers and ratifiers didn't think they were making racial segregation in railroads, public schools, marriage, etc., unconstitutional or something potentially outlawed by the 14th Amendment). Others, like Judge McConnell differ. And currently, as we know, the Supreme Court rules such unconstitutional under the Equal Protection Clause of the 14th Amendment.

Yet, as Barnett alluded to above, it was the Privileges or Immunities Clause that was meant to deal with this. Indeed, there is a strong case to be made that neither the Due Process NOR the Equal Protection Clause guaranteed ANY substantive rights, not against racial discrimination or ANYTHING. That both were entirely procedural clauses. The Due Process Clause targeted courts while the Equal Protection Clause targeted the executive. And held that if you were a "person" -- i.e., a human being -- you had to be held to the exact same set of procedural rules. And this was whether one was black, a Mormon, a Hell's Angel (of whatever the mid-19th Century equivalent thereof) or a thief.

There was no substantive right in either the Equal Protection OR Due Process clauses to be free from racial discrimination, to practice one's religion, to be a member of a rebellious club, or to steal. Rather, by virtue of your humanity, the same set of rules -- whatever they may be -- had to apply to all people.

This is something many people unaware of historical nuances of the civil rights don't "get." If a black person beats up a white person or vice versa, that's assault and battery. There are laws on the books against assault and battery that have always dealt with this. Yet, law enforcement and courts run by majorities or those in power might simply decide not to apply the same already existing rules to selective disfavored groups. It doesn't matter if it's blacks, Mormons or members of the Hells Angels. If you are a person, regardless of character or trait, the same set of rules have to apply. But if the Hells Angel committed robbery, he could be so punished.

The right to be free from racial discrimination, as it were, is a substantive rule and not something the procedural clauses of the 14th Amendment (i.e., Equal Protection) were meant to deal with. However, the 14th Amendment DID intend to give substantive rights, but it was through the Privileges or Immunities Clause, not Equal Protection OR Due Process.

So provided we just switched the Privileges or Immunities Clause for the Equal Protection Clause, Brown, Loving, etc., would be kosher? Not so fast. Even if Judge McConnell's account is correct, look closely to what Barnett reported:

[N]early everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it.

Yes, it was the House and Senate's responsibility to prohibit racial discrimination as a "privilege or immunity" of the 14th Amendment. There is a strong originalist case to be made -- arguably the strongest -- that it's the jurisdiction of Congress to define by statute those substantive privileges or immunities. That the original meaning of the 14th Amendment was meant to provide a constitutional basis for the original post Civil War mid-19th Century Civil Rights Acts.

That would mean that even though such originalism teaches Brown was wrongly decided, Congress would still have the constitutional authority to enact such a decision and the Congress who passed the Civil Rights Act of 1964 could still have statutorily enacted Brown, Loving, etc. as a "privilege or immunity." And they would have.

One day a few years ago, I was in a room full of very distinguished originalists in a private meeting at an ivy league location, where I was the least important person in the room. They agreed what I reported above was the best originalist understanding of the 14th Amendment. Since it was off the record, I'm not going to name names.

One person in the room noted that this understanding, though correct, was awkward. Given the original meaning of the Privileges or Immunities Clause of the 14th Amendment, we could get a new constitutional conventional with every new Congress. The response from the group was that originalists have to do the right thing and deal with unhappy endings.

There's debate as to whether the 14th Amendment was even meant to incorporate ANY part of the Bill of Rights to apply against the states. Justice Scalia has admitted he's not convinced it was, but accepted incorporation because of Stare Decisis. Philip Hamburger, one of the brightest conservative law professors, doesn't think it was. And that means everything in the Bill of Rights -- freedom of speech, establishment, free exercise of religion, rights of criminal defendants -- is left to the states. That would mean Trinity Lutheran was wrong and Professor Ledewitz is right because "religion is left to the states." If a state wants a Blaine Amendment or to establish the Roman Catholic Church, or the Unitarian Universalists for that matter, they could because religion is left to the states.

Or even if the Privileges or Immunities Clause was meant to include both rights contained in the Bill of Rights as well as rights against non-discrimination (i.e., rights to equal treatment) on the basis of race, religion (and other issues) it's still Congress' responsibility to pass legislation to protect those and for courts -- including the Supreme Court -- to attempt to do this is judicial usurpation of Congress' role.

Don't forget, even if religion is otherwise "left to the states," all federal law trumps all state law. Federal statutes trump state constitutions. So if Congress wants to guarantee the free exercise of religion against state and local governments, that would trump any state law that would attempt to do otherwise.

This is a much different constitutional world than the one in which we currently live. And it's one that most notable originalists don't seem interested in publicly defending. But it's arguably the most correct one according to the method of original expected application of the texts.