The Volokh Conspiracy

For a long time, the conventional wisdom among legal scholars has been that an originalist interpretation of the Fourteenth Amendment would require courts to uphold laws that discriminate against women and laws banning interracial marriage. While these arguments were once advanced by defenders of sexism and Jim Crow laws, today they are usually used as justification for rejecting originalism itself rather than for rejecting court decisions such as Loving v. Virginia, which struck down anti-miscegenation laws. At the same time, most scholars have also argued that the original meaning of the Amendment permits states to adopt affirmative action programs.

Recent scholarship has called this conventional wisdom into serious question. In 2011, Northwestern law professor Steven Calabresi and Julia Rickert published an important article outlining an originalist case for striking down laws that discriminate on the basis of sex. More recently, both Calabresi (with Andrea Matthews) and David Upham have published originalist defenses of the result in Loving.

Just a few days ago, Michael Rappaport posted this paper questioning the conventional wisdom on originalism and affirmative action (which I myself questioned much less thoroughly here). It is not my view that the original meaning of the Fourteenth Amendment clearly requires courts to strike down all affirmative action programs. But the application of the original meaning to these programs is far from being as clear as the conventional wisdom suggests.

I don’t think the work of Calabresi and his coauthors, Rappaport, and Upham will definitively end the debate over originalism and discrimination. Critics of originalism will likely develop rebuttals to their arguments. But this new wave of scholarship does mount a strong challenge to the previously dominant conventional wisdom.

At today’s Proposition 8 oral argument, Justice Scalia asked Ted Olson, the lawyer for the plaintiffs, “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” The intuition behind Scalia’s question is that if a law would not have been unconstitutional on the day the Fourteenth Amendment was adopted, it cannot be unconstitutional under that Amendment at all.

But the latter doesn’t necessarily follow from the former. Laws that are constitutional at Time X can easily be unconstitutional at Time Y if relevant factual circumstances have changed. This is true not only under “living Constitution” theories, but even under originalism.

I. Originalism and Changing Circumstances.

How could this be so? Whether a law violates original meaning of the Constitution depends not just on the words of the text, but on relevant factual circumstances. For example, the Fourth Amendment bans “unreasonable” searches and seizures. Whether a search is reasonable depends at least in part on the state of technology, the likelihood that the search will catch a criminal, and other factual circumstances. As technology changes and our knowledge increases, a search that could be considered reasonable at Time A might not be reasonable at Time B, even though the meaning of the Fourth Amendment has not changed at all.

The constitutionality of sex discrimination is a particularly telling example. Steven Calabresi and Julia Rickert have shown that the original meaning of the Fourteenth Amendment constrains discrimination against women if that discrimination lacked a compelling rationale beyond a desire to subordinate them as an inferior “caste.” But 19th century understandings of biology and social science led most people to believe that a wide range of laws discriminating against women were constitutional because they were rational responses to fundamental differences between the sexes. Today, much of the factual understanding of the 19th century has been discredited, with the result that many laws that perhaps could legitimately be upheld in the 1870s ago are now unconstitutional. I expounded on this point in greater detail here:

[In Bradwell v. State (1873)], three justices upheld the exclusion of women [from the legal profession] despite the general principle of occupational freedom under the Privileges and Immunities Clause, based on their factual understanding of women’s “characteristics, destiny, and mission.” If that factual understanding turns out to be wrong, they could no longer argue that the power to discriminate against women in this way would fall under “the police power of the State” and would be required to strike the law down.....

Thus, the legal rule [Justice] Bradley advocated would compel a different outcome in any similar case today. Originalism requires judges to apply the legal rules established by the framers. But it doesn’t require them to perpetuate factual errors in the evaluation of evidence used to determine how the rule applies to any given case. Assume that in 1873 a regulation were upheld based on scientific evidence derived from the popular 19th century theory of phrenology, which held that people’s abilities and character could be predicted based on the shape of their skulls. For example, a state could have enacted a law forbidding a person with the wrong type of skull to become a lawyer. Later research proves that phrenology is a bogus pseudoscience. A consistent originalist judge would overrule the 1873 decision if legislatures continued to enact statutes claiming a police power rationale for curtailing occupational freedom based on phrenological evidence. The same goes for statutes that restrict constitutional rights based on discredited nineteenth century factual assumptions about women. [emphasis added]

II. Implications for Same-Sex Marriage.

As I have previously argued, laws banning same-sex marriage discriminate on the basis of gender, much like 19th century laws banning women from various occupations. For many decades, the state of our knowledge was such that it seemed inconceivable that same-sex couples could raise children, form committed long-term relationships, play a stabilizing role in society, and otherwise carry out the various functions associated with opposite-sex marriages. Today, however, we know that these assumptions are false or at least greatly overstated. Just as we now know that women can be effective lawyers and that phrenology is bogus.

We may not be able to pinpoint the exact date when knowledge advanced to the point that courts were justified in striking down laws excluding women from various occupations. I would tentatively say it happened soon after various states first allowed women to enter many professions in the late 19th century, and experience quickly showed that no great disaster occurred as a result. Still, a good case can be made for a different date. But all a court needs to know is that the relevant date occurred sometime before the day when it has to make a decision in the case before it. And what is true of other forms of sex discrimination is also true of laws banning same-sex marriage.

Finally, I recognize that originalism is far from the only theory of constitutional interpretation. I myself do not believe that it should be the only factor courts take into account. In this post, I focus on originalism because I think it obvious that most “living Constitution” theories readily allow for situations where a law that is initially constitutional becomes unconstitutional over time.

UPDATE: The above analysis could potentially be reformulated as saying that laws banning same-sex marriage were unconstitutional as soon as the the Fourteenth Amendment was enacted in 1868, but people just didn’t have enough knowledge to figure it out until much later. But, for purposes of judicial review, the key issue is when real-world courts had enough evidence to justify striking down a law like Proposition 8. And that time could easily be later than the point at which a court with perfect information would have been justified in doing so.

Mike Ramsey has a nice post over at the Originalism Blog.

The University of Pennsylvania Journal of Constitutional Law is hosting a very promising symposium on Friday, January 25. My colleague and co-blogger Randy Barnett will be on the first panel. I will be giving the keynote address. And the second half of the symposium is largely dedicated to (eviscerating) my work!

“Everyone loves money. That is why they call it MONEY.” – David Mamet.

The trillion-dollar coin is a proposal to avoid the debt ceiling through a loophole in a federal statute that authorizes the U.S. Mint to coin platinum in any denomination. Platinum is reserved for commemorative issues, and the obscure statutory provision was certainly not intended by Congress to authorize the effective borrowing of a trillion dollars, but as a statutory matter, the trillion dollar coin may work.

I have not examined the matter too closely, but at least one constitutional question pops up here.

Congress is authorized to “coin money.” The proposed trillion-dollar coin is certainly a coin – but is it money? Money is created for circulation. As Justice Story put it in his Commentary on the constitution, the power to coin money is designed to “preserve a proper circulation of good coin of a known value.” Vol. 2, § 1118. That is why it is put into the convenient form of coins or bills. Specie never intended for circulation, one might argue, is simply not money.

The link between circulation and coinage has been noted by courts, though obviously nothing has been decided, at least as far as my brief inquiry revealed. Veazie Bank v. Fenno, 75 U.S. 533 (1869) (“It cannot be doubted that under the constitution the power to provide a circulation of coin is given to congress.”)

Let us turn to the dictionaries. “Money” is “metal coined for public use,” according to the 1788 edition of William Perry’s The royal standard English dictionary. This may lead to a debate about what a “public use” is, reminscent of the “general welfare” question in the Spending power. I would guess it means “use by the public,” a view supported by “Metal coined for the purposes of commerce,” according to the 1789 edition of Sheridan’s Complete dictionary of the English language.

There are of course many potential rejoinders (aside from the possibility that the money/circulation property is specious.) The transfer to Treasury could be deemed circulation, but this I think weak. More seriously, one would point out that all non-circulating commemorative coins would thus be unconstitutional. OK – but has any court said that they are constitutional? Apparently the making of such coins did not begin until 1892, so as an originalist matter, their long-standing existence does not prove much. Presumably no one ever had reason to make issue over their issue. And not all commemoratives are non-circulating.

In any case, I doubt this proposal will gain currency with President. He has previously dismissed the constitutional legitimacy of formalistic gimmicks and “procedural tricks,” like the Senate declaring itself in session to avoid recess appointments. Back them, the White House counsel said that since the Senate was “functionally” in recess, that is what counts. Presumably here they will see that this is “functionally” a money supply policy not authorized by Congress in evasion of a debt ceiling that was.

UPDATE: I have amended this a bit shortly after posting it.

National Review has posted an on-line symposium in honor of Judge Robert Bork, the great legal scholar and jurist who passed away today. Here is an excerpt from my contribution:

Judge Robert Bork was an outstanding legal scholar and jurist. It is often forgotten that he first became prominent thanks to his path-breaking work on antitrust law and economics in the 1960s and ’70s. In this area, he made major advances that have become conventional wisdom for scholars across the political spectrum....

Bork’s theories on constitutional law are far more controversial. Nonetheless, he undeniably made a major contribution to the defense of originalism. He played a key role in bringing it from the margins of legal thought to the center....

In his later years, Bork ran into two contradictions that bedevil conservative legal and political thought more generally. The first is the tension between originalism and judicial deference to the democratic process. In many cases, enforcing the original meaning of the Constitution requires imposing tight constraints on legislative and executive power.... Second, Bork advocated extensive government regulation and “censorship” (his word) of the culture, without considering the possibility that this form of government intervention is often prone to the same pitfalls that he had earlier identified in government economic regulation.

The controversy over his 1987 Supreme Court nomination and the continuing ideological divide over judicial review make it difficult to objectively assess Judge Bork’s legacy. In the long run, however, I think he will be remembered for his important contributions to legal thought — even by those who, like myself, disagreed with many of his conclusions.

I previously wrote about Judge Bork’s legal and political thought (mostly focusing on the differences between us) here and here, and in this 2008 article for a symposium on Bork’s work. Readers of those pieces will see that I have many reservations about Bork’s ideas. Nonetheless, he was a giant of late 20th century legal thought, and will be remembered as such. The fact that we are still debating his work decades after his most influential books and articles were published is in itself a major testament to his significance.

I only briefly met Judge Bork. For that reason, I have focused these reflections on his legal and political thought rather than my very limited personal impressions of the man. But I would like to take this opportunity to extend condolences to Judge Bork’s family, friends, and professional colleagues, some of whom may perhaps be readers of this blog.

UPDATE: The symposium also includes a good contribution by co-blogger Jonathan Adler.

I am grateful that Akhil Amar has taken the time to respond to my post criticizing his theory that the original meaning of the Fourteenth Amendment bans racial discrimination by the federal government as well as the states. Akhil makes some good points, but I think he continues to fall short on the central point at issue. Neither of his posts adequately substantiates his argument that the original meaning of the Citizenship Clause of Section 1 of the Fourteenth Amendment protects African-Americans and others born or naturalized in the United States against federal racial discrimination simply by virtue of guaranteeing them citizenship.

In his new post, Akhil explains that his argument only applies to federal government discrimination with regards to “civil rights” (e.g. – rights to property and freedom of contract) rather than political rights (e.g. – voting and participation in juries and the military). I know that he has distinguished between the two in previous work. However, in the quote from his new book that he included in his earlier post criticizing me, Akhil makes the sweeping statement that the Citizenship Clause of the First Amendment means that “Any law, state or federal, heaping disabilities or dishonor upon any citizen by dint of his or her birth status — because he was born black, or because she was born female or out of wedlock — violates a core principle of the Fourteenth Amendment’s opening sentence” [emphasis added]. I think a reasonable reader could be forgiven for assuming that by “any law” Akhil means “any law.” Laws excluding blacks or women from the franchise, jury service, or military service certainly seem like laws “heaping disabilities or dishonor upon any citizen by dint of his or her birth status.” Perhaps this very broad statement is qualified elsewhere in the new book. But I unfortunately did not yet have a copy of a book that went into print just this week, and so was going by what Akhil said in the part he excerpted in his post.

Perhaps more importantly, Akhil ignores the fact that much of the evidence I cite against him applies to civil rights as well as political rights. In both of his posts, Akhil makes much of the fact that the Fourteenth Amendment was, at least in part, modeled on the Civil Rights Act of 1866. But as I noted in my last post, the Civil Rights Act does not assume that granting citizenship to blacks also necessarily protects them against racial discrimination with respect to civil rights:

I am also unpersuaded by Amar’s invocation of the Civil Rights Act of 1866, which stated that “All persons born in the United States . . . are hereby declared to be citizens of the United States; and such citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to . . . full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.” Notice that the text of the Civil Rights Act does not assume that making African-Americans (or anyone else) citizens automatically protects them against racial discrimination by the state or federal governments. To the contrary, the assumption is that it does not, which is why the drafters of that act included a separate provision extending to all such citizens “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” There would have been no need for this antidiscrimination provision if it were already implicit in the grant of citizenship itself.

Laws concerning “the security of person and property” are clearly laws that relate to civil rights, not political rights. Like the Civil Rights Act of 1866, the latter part of Section 1 of the Fourteenth Amendment bars states from discriminating with respect to various civil rights, but the Citizenship Clause does not include any such restriction on the federal government.

Similarly, Justice Curtis’ dissent in Dred Scott, which I quoted at some length, describes the pre-Fourteenth Amendment conventional wisdom that “citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights,” [emphasis added]. For example, Curtis referred to the fact that women are clearly citizens, yet were also barred from a variety of civil rights in many states.

Akhil makes a valid point in noting that I was too quick to assume that if racial discrimination between citizens is banned by the Citizenship Clause, the Equal Protection Clause becomes redundant. As he points out, the latter Clause protects all “persons,” not just citizens. Nonetheless, it is somewhat strange to conclude that the Equal Protection Clause offers no additional protection against racial discrimination to citizens beyond that already offered by the Citizenship Clause, and is only there to constrain such discrimination against noncitizens.

Finally, as I noted in my previous post and an update to my earliest post on this subject, in some places in both of them I referred to Section 2 of the Amendment where I meant to say the latter part of Section 1 (which includes the parts of the Amendment that, according to the text, apply only to state governments). I noticed the error before Akhil’s rebuttal, and posted updates noting it. But in my haste last night, I missed a couple instances of the error that I should have corrected. I have now fixed them. This is the sort of mistake that bloggers sometimes make when writing quickly, and I should have been more careful.

UPDATE: I cut a passage relating to the Privileges or Immunities Clause that was in the original version of this post in order to save space, and because I decided it wasn’t a good enough point to include without some additional elaboration and qualification that would take even more space. Since I made the cut only about 30 minutes after the initial posting and few readers will have seen that material, I am not going to discuss it in more detail in this update.

I am grateful to Akhil Amar for his comment on my post challenging claims that the original meaning of the Fourteenth Amendment allows affirmative action because Congress, in the 1860s and 70s adopted programs that gave “racial preferences” to recently freed African-American slaves. In my earlier post, I pointed out that these were federal government policies, and that the part of the Fourteenth Amendment which includes the Due Process Clause, the Equal Protection Clause and the Privileges or Immunities Clause), explicitly applies only to states.

Professor Amar rightly points out that the first sentence of Section 1 of the Amendment, which guarantees citizenship to all persons born or naturalized within the United States, applies to the federal government as well. I don’t deny this, and even added an update to my post, where I noted that “I have updated this post slightly to make clear that it is the text of Section 2 [I meant to say the latter part of Section 1] of the Fourteenth Amendment (which includes the Equal Protection Clause and the Privileges or Immunities Clause) that only applies to state governments. Some other parts of the Amendment (e.g. – [the first part of Section 1] which gives citizenship to all person born in the United States, and Section 3, which bans some former Confederates from serving in Congress) also constrain the federal government. But [the latter part of Section 1] is the provision relevant to affirmative action.” My original post was badly worded on this point; and I also briefly conflated the second part of Section 1 with Section 2, which foolish error is explained but not excused by the fact that I was very tired at the time I wrote the update). But the update (which I first added before Professor Amar’s post went up) does make my position clear.

Amar and I therefore agree that the first sentence of Section 1 of the Amendment applies to the federal government, as also do some other parts of the Amendment, such as Section 3. We also seem to agree that the latter part of Section 1 – at least as an original matter – does not. Professor Amar appears to accept the latter in his earlier book, America’s Constitution: A Biography (pg. 382), though he does not reach a definitive conclusion.

Where we disagree is over the question of whether the Citizenship Clause of Section 1 banned racial discrimination by the federal government. In my view, at least as a matter of original meaning, it did not. Consider the fact that immediately before, during, and after the passage of the Amendment, the federal government engaged in extensive discrimination against African-Americans that few at the time thought was unconstitutional. For example, blacks were segregated in the US Army and Navy, and excluded from many officer positions. The Marine Corps completely excluded blacks until 1942. In addition, if Amar is right that “Any law, state or federal, heaping disabilities or dishonor upon any citizen by dint of his or her birth status — because he was born black, or because she was born female or out of wedlock — violates a core principle of the Fourteenth Amendment’s opening sentence,” then laws denying the vote to women were banned by the Fourteenth Amendment, and there was no need for the Nineteenth Amendment (which finally banned sex discrimination in this field over fifty years after the Fourteenth Amendment was enacted). Amar’s approach also renders much of [the latter part of Section 1] of the Amendment superfluous. If the Citizenship Clause Section 1 already bans racial and other status discrimination by state governments, there would be no need for [the] Equal Protection Clause, which bans state denial of “equal protection of the laws.”

I am also unpersuaded by Amar’s invocation of the Civil Rights Act of 1866, which stated that “All persons born in the United States . . . are hereby declared to be citizens of the United States; and such citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to . . . full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.” Notice that the text of the Civil Rights Act does not assume that making African-Americans (or anyone else) citizens automatically protects them against racial discrimination by the state or federal governments. To the contrary, the assumption is that it does not, which is why the drafters of that act included a separate provision extending to all such citizens “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” There would have been no need for this antidiscrimination provision if it were already implicit in the grant of citizenship itself.

It is true that the Civil Rights Act of 1866 was to a considerable extent a model for the Fourteenth Amendment. Section 2 [actually the latter part of Section 1] of the Amendment forbids racial discrimination by state governments of the sort banned by the 1866 Act. However, Section 1′s Citizenship Clause does not include any comparable restriction on racial discrimination by the federal government. And as the language of the Civil Rights Act shows, such a ban was not considered implicit in the grant of citizenship itself. It’s also worth noting that the Civil Rights Act of 1866 does not apply to all types of racial discrimination by government, but merely that which pertains to “laws and proceedings for the security of person and property.” It therefore did not apply to racial discrimination by state universities of the kind at issue in the affirmative action litigation that led to my original post.

The conventional wisdom in the nineteenth century was that citizenship status was very much compatible with various types of discrimination between citizens. Most jurists agreed, for example, that women’s citizenship status did not bar a variety of discriminatory legislation against them. Consider this passage from Justice Curtis’ dissent in Dred Scott, arguing against Chief Justice Taney’s claim that widespread discriminatory legislation against African-Americans proved that they could not be citizens:

It has been... objected that, if free colored persons, born within a particular State and made citizens of that State by its Constitution and laws, are thereby made citizens of the United States, then, under the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several States, and, if so, then colored persons could vote, and be eligible to not only Federal offices, but offices even in those States whose Constitution and laws disqualify colored persons from voting or being elected to office.

But this position rests upon an assumption which I deem untenable. Its basis is that no one can be deemed a citizen of the United States who is not entitled to enjoy all the privileges and franchises which are conferred on any citizen.... That this is not true under the Constitution of the United States seems to me clear.

A naturalized citizen cannot be President of the United States, nor a Senator till after the lapse of nine years, nor a Representative till after the lapse of seven years, from his naturalization.... So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is that citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights, and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided is a question to be determined by each State in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way.

One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may allow all persons above a prescribed age to convey property and transact business; another may exclude married women. But whether native-born women, or persons under age, or under guardianship because insane or spendthrifts, be excluded from voting or holding office, or allowed to do so, I apprehend no one will deny that they are citizens of the United States. Besides, this clause of the Constitution does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities. They are entitled to such as belong to citizenship, but not to such as belong to particular citizens attended by other qualifications.

The drafters of the Fourteenth Amendment also assumed that granting citizenship to African-Americans did not automatically entitle them to equal civil or political rights. That’s why they added the latter part of Section 1 to the Amendment, which prevents states from taking away those rights. And that’s why they later adopted the Fifteenth Amendment, which forbade racial discrimination in voting rights.

I should emphasize that both this post and the previous one only address the original meaning of the Fourteenth Amendment restricts racial discrimination by the federal government. I fully admit that there are many nonoriginalist arguments for applying the Amendment to the feds. I also believe that some types of racial discrimination by the federal government may be banned by other parts of the Constitution. For example, I think that imprisoning people without individualized due process merely because they belong to a particular racial group violates the Due Process Clause of the Fifth Amendment, which is why originalism cuts against the Supreme Court’s infamous decision upholding such detentions in Korematsu v. United States.

Finally, as regular VC readers know, I am no fan of unconstrained federal power. As I see it, an ideal Constitution would severely restrict and perhaps even categorically ban racial discrimination by the feds. But that’s not what the Fourteenth Amendment did, at least not originally.

UPDATE: Professor Amar has written that he may not have time to respond to our rebuttals to his posts within the week that he will be guest-blogging. I would therefore be happy to post any reply he might care to submit at a later date. Either way, I look forward to reading his book, which is likely to be a major contribution to constitutional scholarship on par with his pathbreaking earlier work.

UPDATE #2: In the original version of this post, I accidentally repeated my mistake from the previous post of writing “Section 2″ in places where I meant to refer to the latter part of Section 1. I have now noted and corrected those places.

In this recent SCOTUSblog post on the upcoming Supreme Court case of Fisher v. University of Texas, David Gans and UCLA law professor Adam Winkler take conservative originalist opponents of affirmative action to task for ignoring originalism in their arguments against the constitutionality of racial preferences for minorities. They particularly single out Supreme Court Justices Clarence Thomas and Antonin Scalia, who have taken a hard line against affirmative action in their opinions, but have never provided any evidence that this position is consistent with originalism. Gans and Winkler also argue that originalism in fact supports the constitutionality of affirmative action because “[t]he same elected officials who wrote and endorsed the constitutional amendment guaranteeing the equal protection of the laws to all persons also enacted several measures embodying ‘racial preferences.’” The latter argument builds on the work of previous academic defenders of affirmative action, such as Yale law professor Jed Rubenfeld.

Gans and Winkler are right to criticize Scalia and Thomas for neglecting originalism in their affirmative action opinions. But they are wrong to assert that originalism clearly supports their own side of the affirmative action debate. Without exception, all of the nineteenth century “racial preferences” that they cite are federal laws, such as the Freedman’s Bureau programs intended to aid recently freed slaves. But the text of the latter part of Section 1 of the Fourteenth Amendment, the provision at issue in affirmative action litigation, only applies to state governments: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [emphasis added].

Beginning with the famous case of Bolling v. Sharpe (1954), the Supreme Court retroactively applied the Amendment’s restrictions on racial discrimination to the federal government. But no one imagined that the amendment applied to the federal government at the time it was enacted. Therefore, the framers and supporters of the amendment could well believe that the federal government had the power to enact racial preferences that would be banned by Amendment if adopted by the states. Nor were they completely unreasonable in accepting this double standard. The framers of the Amendment hoped that the federal government would continue to be controlled by (relatively) pro-black Republicans and therefore could be trusted with the power to use racial preferences. By contrast, they did not have similar faith in the states, particularly the southern states where most white voters were unrepentant ex-Confederates and supporters of slavery.

In addition, as co-blogger David Bernstein points out, the racial preferences adopted by the federal government in the Reconstruction era were intended to help alleviate the massive injustices inflicted on recently freed slaves. This compensatory justice rationale for racial preferences is far different from the “diversity” rationale offered by the University of Texas to justify its racial preferences. The diversity rationale has very different implications from the compensatory justice theory, and could potentially justify preferences for a wide range of groups. In the Texas case, as David notes, many of its beneficiaries are the children of recent Hispanic immigrants who never experienced the kind of large-scale systematic discrimination suffered by American-born blacks (to say nothing of that endured by one-time slaves in the 19th century). Even if the framers and ratifiers of the Fourteenth Amendment would have been willing to allow state governments to engage in compensatory justice preferences for African-Americans, it is highly unlikely that they would have endorsed diversity preferences. After all, the dominant ideology viewed cultural diversity with suspicion and pushed immigrants to assimilate as quickly as possible.

Moreover, it seems unlikely that the overwhelmingly white (and to a large extent, still racist) electorate of the 1860s would have supported ratification of the Amendment if they had thought that it allowed state governments to discriminate in favor of blacks and against whites, while forbidding the reverse. Today, the dominant version of originalist theory is “original meaning” originalism, which holds that the Constitution should be interpreted as understood by the general public or the ordinary reader at the time of enactment (as opposed to “original intent” – the understanding of the political elites who drafted the document). It is improbable that the average member of the general public who supported the Amendment understood it to mean that states were empowered to discriminate in favor of racial minorities in ways they could not discriminate in favor of whites.

The above does not prove that adherence to originalism requires judges to strike down all affirmative action preferences by state governments. But it does undercut the standard originalist case for them. At the very least, originalist judges would have to review such policies with considerable suspicion.

UPDATE: Co-blogger David Bernstein made some related points in this post. There is some important overlap between his argument and mine. But I have let this post stand nonetheless, because it also raises some points that David didn’t address.

UPDATE #2: I have updated this post slightly to make clear that it is the text of [the latter part of Section 1] of the Fourteenth Amendment (which includes the Equal Protection Clause and the Privileges or Immunities Clause) that only applies to state governments. Some other parts of the Amendment (e.g. – Section 1 which gives citizenship to all person born in the United States, and Section 3, which bans some former Confederates from serving in Congress) also constrain the federal government. But [the latter part of Section 1] is the provision relevant to affirmative action.

UPDATE #3: In my previous update, I foolishly confused the text of the second sentence of Section 1 of the Amendment with Section 2. I apologize for this error, and have now corrected.

Well-known legal commentator and former Scalia clerk Ed Whelan has an interesting critique of Judge Richard Posner’s very negative review of Justice Scalia’s recent book on legal interpretation (coauthored with Bryan Garner).

Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests that the battle over the mandate has led liberals to change position and embrace “judicial restraint,” which they were reluctant to do before.

There is something to these claims. But I think there is a lot more continuity in both liberal and conservative attitudes towards judicial review than these commentators suggest. As I pointed out at the very beginning of the individual mandate battle, conservative scholars and jurists have been arguing for stronger judicial enforcement of constitutional limits on federal power for many years now. The issue long predates Obamacare.

Alicea contrasts the four conservative justices’ position on the mandate with Chief Justice Rehnquist’s endorsement of “restraint.” In reality, however, Rehnquist led the federalism “revolution” of the 1990s and dissented in Gonzales v. Raich. Moreover, he was advocating stronger enforcement of federalism as far back as the 1976 case of National League of Cities v. Usery . When that decision was overruled in 1985, both he and Sandra Day O’Connor bitterly dissented and forcefully rejected the dominant liberal view that federalism issues should be left to the political process. Thus, there is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.

For at least 30 years, many conservative scholars and jurists have also been urging strong judicial enforcement of constitutional property rights. Rehnquist was a leader on that issue too, notably in his dissent in the key 1978 Penn Central case, which established the modern – largely pro-government – standard for regulatory takings cases.

These longstanding attitudes were sometimes obscured by loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of that rhetoric. But most conservatives used the term “activism” to denounce decisions that they saw as departing from originalism, not simply ones striking down laws.

There is greater consistency than meets the eye on the liberal side too. While liberals have long favored aggressive judicial review on issues like privacy rights and defendants’ rights, they have for decades opposed nearly all judicial enforcement of structural limits on federal power, and most judicial protection for property rights and economic liberties. For nearly a century, the dominant left-wing view has been that such issues must be left to the political process. I think the latter attitude is misguided. But it’s hardly new.

In sum, the main disagreement between liberals and conservatives is not about whether judicial review in general should be deferential to the political process, but rather on what kinds of legislation should be treated deferentially and what kinds should not. There is also, of course, an important longstanding debate over methodology: whether the courts should rely on originalist methodology in deciding which laws to strike down, or whether they should give greater weight to various “living constitution” theories.

I don’t fully subscribe to either the conservative or liberal approaches to judicial review. And I don’t think either has been anything close to fully consistent over time. That’s especially true if you shift the focus away from scholars and judges to politicians and parties, which are more likely to be influenced by short-term political calculations. But both have been a lot less inconsistent than some commentators like to suggest.

The struggle over the individual mandate was not some strange role reversal. It was a continuation of a longstanding battle over the issue of judicial enforcement of federalism.

UPDATE: I should mention that I am still abroad, and therefore may not be able to respond to any responses this post may generate for some time. I took advantage of a short break in my travel schedule to write this post and my previous one.

UPDATE #2: Co-blogger David Bernstein reminds me of Rehnquist’s notable 1981 concurring opinion in Hodel v. Virginia Surface Mining, where he criticized the Supreme Court’s Commerce Clause jurisprudence for giving Congress too much power.

UPDATE #3: Alicea responds to this post here:

I do not disagree with much of what Somin says. How could one dispute that judicial conservatives have long objected to the expansion of federal power and favored a judicial response to this accretion of authority? No one with a passing familiarity of American constitutional history could contest these points, and I did not do so in my essay

It is equally undeniable that Chief Justice Rehnquist was willing to enforce limits on federal power, especially during the federalism cases of the 1990s. My claim was not that Rehnquist was averse to patrolling the boundaries of federal power. Even a Justice with a far more modest view of the judicial role than Rehnquist will encounter statutes that he or she thinks are clearly unconstitutional.

Nor did I argue that Rehnquist’s view of judicial restraint remained constant throughout his tenure on the Court. I wrote only about his role at the founding of the conservative legal movement in the 1970s, long before the Federalism Revolution of the 1990s. That is not to say that Rehnquist’s views changed dramatically from the 1970s through the 1990s, but I confined my observations of the Justice to his role at the beginning of the movement.

I do think that Rehnquist expressed a modest view of the judicial role during the 1970s, as his 1976 lecture on the “Notion of a Living Constitution” shows....

Even if I were mistaken in describing Rehnquist’s jurisprudence, that would not undermine my point that the older view of judicial restraint was once dominant in the conservative legal movement. Robert Bork undoubtedly adhered to the Justice Harlan conception of restraint, and I think it is fair to say that his jurisprudential views were emblematic of the movement until the early- to mid-1980s. Somin focuses on Rehnquist’s views, but my argument was much broader and does not rise or fall with how the Rehnquist of the 1970s is categorized.

Thus, I think that in arguing that my case is overstated, Somin overstates my case. He ascribes positions to me that I did not express in the article. To take another example, I did not say that the healthcare decision “represents a sea change in conservative attitudes to judicial review.” In fact, I argued quite the opposite: that the change in legal conservatives’ conception of judicial restraint has been going on since at least the 1990s. The healthcare decision simply highlights how far legal conservatives have moved away from the old, Justice Harlan conception of restraint, with its emphasis on deference to current majorities and modest view of the judicial role...

I end by noting that neither Somin nor [Ed] Whelan disagreed with a key argument in the article: that there are two different views of judicial restraint within the conservative legal movement.

With regard to Rehnquist, as I explain in my original post, he argued for strong judicial review on federalism and property rights issues long before the 1990s, and indeed going all the way back to the 1970s. in the 1976 article that Alicea cites, Rehnquist criticized not strong judicial review as such, but judicial review based on “living constitution” theories. He did not object to aggressive judicial review in cases where the legislature adopts laws that are unconstitutional from an originalist point of view.It is also important to emphasize, as I briefly note above, that Rehnquist was not alone in holding those views. Several other conservative justices of the era expressed similar views on federalism, notably Sandra Day O’Connor. Robert Bork did indeed express a more deferential approach to judicial review. But even he suggested in his writings of the 1980s and early 1990s that much of the post-New Deal federalism jurisprudence was questionable. Other prominent conservative jurists made similar statements. Thus, Alicea is wrong to trace the change in conservative perspectives on these issues only back to the 1990s. In reality, it dates back at least to the early to mid-1970s.

I should add that when I said that, on Alicea’s theory, “the individual mandate case represents a sea change in conservative attitudes to judicial review,” I did not mean to suggest that he thinks the sea change occurred only as a result of this case, but rather that the conservative reaction to the mandate is part of a relatively recent change in attitude. I apologize for any confusion on this point. However, I think we do differ in so far as he portrays the change as a relatively recent development, whereas in my view it had deep roots going back several decades.

Finally, I agree that there are at least two views of the judicial role among conservatives. Indeed, there are probably many more than just two. My point, however, is that many prominent conservatives have been arguing for strong judicial review on federalism and property rights issues for a long time now. Neither the 1990s nor the individual mandate case represented a sea change in that respect.

Over at Scotusblog, I present the legal rules of NFIB v. Sebelius, as they might appear in a bar review outline, or in a student study aid for a Constitutional Law I class.

In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a “tax,” even though the Obamacare statute calls it a “penalty.”

Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

The above language is a plausible argument for the Chief Justice’s tax/penalty analysis. But by discussing a window tax, the Roberts opinion provides one more reminder why the individual mandate, if it is a tax, is a direct tax, not an indirect tax. Direct taxes must be apportioned by state population. Art. I, sect. 9, cl. 4. If the individual mandate is a direct tax, then it is unconstitutional, because it is not apportioned by state population.

Pursuant to the 16th Amendment, direct taxes on income need not be apportioned, but neither the individual mandate nor the hypothetical window tax are taxes on income. Constitutionally, “income” subject to the federal income tax must be  ”undeniable accessions to wealth.” Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955). A decision not to buy overpriced insurance from Congress’s Big Insurance pets, like the decision not to buy a particular type of window, is not an “accession to wealth.” The decision provides no additional income to the person.

So let’s accept Chief Justice Roberts’ theory that a window tax and the individual mandate are analytically comparable. On July 9, 1798, Congress enacted a direct tax statute, to pay for national defense preparations against France. “An Act to provide for the valuation of lands and dwelling-houses, and the enumeration of slaves, within the United States. On July 14, Congress passed the “Direct Tax Act,” to provide for collection of the July 9 taxes. Pursuant to the Direct Tax Act, federal assessors were to examine houses to assess them for purposes of the direct tax. In addition, the Direct Tax Act ordered the assessors make records of the number and sizes of windows in each house. The window data were to be gathered so that Congress could, in the future, decide to impose a direct tax on windows. Paul Douglas Newman, Fries’s Rebellion: The Enduring Struggle for the American Revolution 76-77 (2004).

It seems there was no dispute that a window tax was a direct tax. A fortiori, a tax on not having certain types of windows would be also be a direct tax. This is one more piece of evidence that Chief Justice Roberts was wrong in stating that the individual mandate “tax” is not a direct tax. Much more extensive discussion of the direct/indirect tax issue (but not of window taxes) can be found in Rob Natelson’s 27 minute podcast on the subject, for iVoices.org.

Absolutely not. Rob Natelson explains why in this 27 minute podcast from iVoices.org.

Yesterday I interviewed Ilya Somin about the NFIB decision, particularly the portion involving the Necessary and Proper Clause. Here’s the link for the 28 minute episode on iVoices.org. As Ilya details, the decision strongly restates and applies a principle from McCulloch v. Maryland: that whether a law is “proper” is an entirely different question from whether it is “necessary.” And CJ Roberts’ opinion is the first in Supreme Court history to find that a law which is “necessary” is not proper. Ilya’s amicus brief was the key brief on the necessity of making separate inquiries into “necessary” and “proper.”

That’s not the only way in which the Roberts opinion brings interpretation of the Necessary and Proper Clause back to the proper, originalist understanding which was explicated in McCulloch. The Roberts opinion explains that the NP Clause grants Congress no additional powers; the clause merely expresses the default legal rule that when an enumerated power is granted, the grant also includes lesser powers which are “incidental” to the enumerated power. In McCulloch, Chief Justice Marshall found it necessary to spend many pages applying the doctrine of incidental powers before he could reach the other issues about the constitutionality of the Second Bank of the United States.

The Roberts opinion is one of many, many post-McCulloch opinions to utilize the doctrine of incidental powers, but it is the first opinion to hold that a particular law is not valid because it is not an incident of an enumerated power. The originalist, Marshallian understanding of the doctrine of incidental powers was the subject of the amicus brief which Rob Natelson, Gary Lawson, and I wrote. The brief is based on the book The Origins of the Necessary and Proper Clause, published by Cambridge University in 2010, and co-authored by Natelson, Lawson, Geoffrey P. Miller and Guy I. Seidman.

The brief devotes much attention to the newspaper essays which John Marshall wrote defending the McCulloch decision. These essays were collected in the book John Marshall’s Defense of McCulloch v. Maryland, published in 1969 and edited by Gerald Gunther. The Roberts opinion is the first in Supreme Court history to cite this book, and the first to cite Marshall’s essays.

The Roberts opinion joins McCulloch v. Maryland as an essential case in any law school textbook that covers the Necessary and Proper Clause. While the Roberts opinion on the Commerce Clause and the Spending Clause brings current interpretation of those clauses closer to the original understanding, current interpretation remains a long way from original meaning. For the Necessary and Proper Clause, however, the Roberts opinion goes all the way.  As of yesterday, Supreme Court doctrine about the Necessary and Proper Clause has fully returned to 1791/1819. The originalist victory is complete.

For some background on the doctrine of incidental powers, one starting point is the Lawson/Kopel article Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online 267 (2011). A follow-up article, Bad News for John Marshall, 121 Yale Law Journal Online 529 (2012), replies to Andrew Koppelman’s warning that following McCulloch‘s originalist doctrine will cause national catastrophe. It looks like we’ll find out if he’s right. If you’re assuming that he is, and thus time is short before The End, a condensed version of our Yale article is available on Legal Workshop.