Thursday, January 06, 2011

Originalism's Bait and Switch

By Mike Dorf

Justice Scalia's recently published interview with Calvin Massey for the California Lawyer has been getting considerable attention because in it he says that the Fourteenth Amendment was not originally understood to forbid discrimination on the basis of sex or sexual orientation.

As a matter of history, Justice Scalia is almost certainly correct about sexual orientation as such, but his position is somewhat overstated with respect to sex.  Scalia says he agrees with Massey's statement that "[i]n 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination. . . . ."  Scalia flatly states:  "It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that."

This is overstatement because in fact there were 19th century feminists--many of whom had also been active in the abolitionist movement--who supported the 14th Amendment.  Elizabeth Cady Stanton is the most prominent.  She was the principal author of the Seneca Falls Declaration of Sentiments, which preceded the adoption of the 14th Amendment by 20 years.

Now it's true that Section 2 of the 14th Amendment (rendered moot by the adoption of the 15th Amendment two years later) expressly authorizes sex discrimination with respect to voting--and for that reason many Nineteenth Century feminists regarded it as a betrayal.  The sex line in Section 2 also indicates that most of the people who voted to propose and ratify the 14th Amendment did not believe in sex equality.  But it was at least possible to argue circa 1868 that Section 1's broad requirement of "equal protection" required some measure of sexual equality with respect to civil rights, even as Section 2's language permitted discrimination on the basis of sex with respect to political rights.  Given the Nineteenth Century distinction between civil and political rights, this would have been a plausible argument for feminists of the period to make, and so it is almost certainly not true that "nobody" thought the Equal Protection Clause applied to sex discrimination in 1868.  Even if nobody who voted for the 14th Amendment in Congress thought it forbade sex discrimination, that may have had a lot to do with the fact that the Congress at the time was all-male and elected by an all-male electorate.

There is, moreover, a bigger problem with Justice Scalia's stated position, which is that he does not come close to following it consistently.  In his work on the Court, he makes no effort at all to trace his views on freedom of speech (including corporate campaign speech) or, more directly to the present point, race-based affirmative action, to the original understanding of the First and Fourteenth Amendments, respectively.  One could perhaps try to justify the extant doctrine he happily accepts in terms of the concrete expectations of those who framed and ratified the relevant provisions, but doing so would be an obvious post hoc rationalization for normative conclusions--as one sees in a case like Heller:  Both the majority and the dissent extensively cite historical sources and yet by some remarkable coincidence, the five most conservative Justices find that this history supports an individual right to possess a handgun, while the four most liberal Justices find that it does not.

It is also worth noting  the form of originalism that takes one from the fact that in 1868 most people did not understand "equal protection" to forbid sex discrimination to the conclusion that today the Constitution "doesn't" forbid sex discrimination is one that equates original understanding with original expected applications.  But the people most successfully (though in my view, still not successfully) defending originalism these days reject original expected applications for original public meaning, where meaning can be quite abstract.  These "new originalists" have good reason to reject original expected applications because, among other things, it produces the wrong result in Brown v. Board.  On the whole, the framers and ratifiers of the Fourteenth Amendment did not expect it to forbid de jure racial segregation in public schools. 

One can get to the right answer in Brown by understanding "equal protection" as a more abstract concept than the concrete expected applications of the framers and ratifiers, just as one can get to a robust conception of freedom of speech or freedom from unreasonable searches and seizures via the same method.  But that method does not allow one to look around at the range of views on concrete issues held at the time a constitutional provision was adopted and conclude that today the provision doesn't forbid practices that were generally deemed permissible at the earlier time, simply in virtue of that fact.

Justice Scalia's view relies on a bait and switch.  The best theoretical justification for originalism defines original understanding at a sufficiently high level of generality to give him room to support positions he deems normatively desirable (such as the impermissibility of affirmative action, protection for corporate campaign speech, and protection for gun rights), but in criticizing claims for rights he doesn't like, he invokes the concrete expected applications of the framing generation.  (Props to Tom Colby and Peter Smith for a longer discussion of this inconsistency in their academic work.)


egarber said...

Another example seems to be Texas v Johnson. It's undoubtedly accurate (enough) to say that nobody expected the First Amendment at ratification to cover symbolic behavior, reaching all the way to flag desecration. Yet Scalia joined that majority, clearly relying on the abstract side of the equation you lay out.

Mortimer Brezny said...

On the whole, the framers and ratifiers of the Fourteenth Amendment did not expect it to forbid de jure racial segregation in public schools.


(A) This is not an original expected application; it is an original expected non-application.

(B) The Slaughterhouse-Cases have not been overturned, and the opinion plainly states:

"We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, [p72] mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth."

Justice Scalia could easily include Brown by arguing that the 14th Amendment provides for "Negro equality".

2. Clearly, you do not believe that Brown was wrongly decided. So: Why are you making this argument?

Michael C. Dorf said...


1. A) You're right that the expected non-application of the 14th Am to school segregation is a non-application, but that's also true of the examples Justice Scalia cites--sex discrimination, abortion, etc. I was simply using the more or less standard terminology to refer to this methodology, as distinct from original meaning originalism.

B) Slaughterhouse has not been overruled in the sense that was at issue in McDonald: It prevents the use of the P or I Clause as a basis for incorporation. But the notion that Slaughterhouse still limits the 14th Amendment to "Negro equality" is obviously false--as incorporation under the DP Clause, substantive DP, fundamental rights in EP (as in Bush v Gore), and many other doctrines show. And Justice Scalia hardly denies this. His answers (in this interview and elsewhere) are meant to criticize much of the modern doctrine.

But the point is that even the idea of "Negro equality" is a more abstract notion than concrete expected applications, and it raises the question of what level of abstraction one should choose to describe the meaning of a constitutional provision. Even if we were to think of "Negro equality" as a concrete expected application, that would not get Justice Scalia to where he wants to go in affirmative action cases, which requires a different abstraction: color-blindness.

2. Of course I don't think Brown was wrong, and I didn't think I was arguing that it was. I was offering Brown as an example of a case that even most originalists would say is rightly decided despite its inconsistency (as I see it) with the original expected applications version of originalism.

Joe said...

The reference to Slaughterhouse is curious.

Within a few years, the Supreme Court held the 14A protected non-blacks in any number of ways, including in respect to equal protection.

If the case said otherwise it was thus effectively overruled. But, one need not even go that far. The ruling for one at the very least accepted some basic rights that went beyond "Negro equality," such as noting enslaving Chinese would be banned as well.

So, at least, we are talking race here. Even then, the ruling didn't just say that. It, e.g., is (in)famous for narrowly defining "privileges or immunities" of national citizenship. But, it's short list still included stuff that applies to "citizens" as a whole. Not just newly freed slaves.

Finally, to the degree certain aspects of slavery (such as control of one's body) specifically concerned women, ending "negro slavery" would have some general effects.

Mortimer Brezny said...

Even if we were to think of "Negro equality" as a concrete expected application, that would not get Justice Scalia to where he wants to go in affirmative action cases, which requires a different abstraction: color-blindness.

Very true. But then why not simply focus on affirmative action and sex discrimination rather than bringing in Brown and gun rights? It seems that color blindness and sex blindness are the abstractions at issue.

Sam Rickless said...

Excellent post, as usual, Michael. I'd just like to share a couple of thoughts. This is part one of two parts.

It is possible that Justice Scalia's approach is best understood as a hybrid of expectations-originalism and original-meaning-originalism, in the following sense: (i) when there is robust historical evidence of framer/ratifier expectations (either to the effect that the relevant provision applies to X or to the effect that the relevant provision does not apply to X), then we are bound to respect these expectations, but (ii) when there is no evidence (or no robust evidence) of such expectations (or perhaps even strong evidence that there were no such expectations), then we have no choice but to look to original-meaning, and hence, given how broad the language is, to general principles. Justice Scalia could argue, e.g., that the EP clause does not apply to sex discrimination, because the framer/ratifier expectation (despite the facts you cite about Stanton and the distinction between civil and political equality) was that the clause does not so apply, but also that the same clause does apply to racial discrimination, because the framer/ratifier expectation was that the clause does so apply. This may be more charitable to Justice Scalia than his actual practice deserves, but I think it better to err on the side of charity.

You may think that even this reconstruction does not do justice to Justice Scalia's positions. You mention Heller, for example. You suggest that this decision is an "obvious post-hoc rationalization for normative conclusions". I suspect that you are right, except for the "obvious" part. I really think that Justice Scalia buys his own historical research and thinks he has correctly identified original expectations here. And the fact that the "liberal" Justices also used history to justify their own normative conclusions could also be read as post-hoc rationalization. Ultimately, whether Justice Scalia's historical research stands on its own two feet is best determined by expert historians of the period. Here I think Scalia is on shaky ground, but I have to admit that I do not know enough about the framing and ratification debates at the time to be able to say.

Sam Rickless said...

Here's part two.

How does the hybrid position apply to other matters you mention in your post? Well, corporate campaign speech and affirmative action are not matters the framers/ratifiers had expectations about, one way or the other. So it makes sense, within the hybrid theory, to defer to original meaning (i.e., to general principle). Racial segregation is more complicated. Clearly the framers/ratifiers of the Fourteenth Amendment expected the EP clause to apply to racial discrimination in political patters. It may be (as you say) that they did not expect the EP clause to apply to racial segregation, but the hybrid theory says that lack of expectation means that we should defer to principle. The hybrid theory says that one should to defer to expectations only when there is robust evidence that there were expectations that the provision does not apply (and that there weren't expectations that the provision does apply). So did the framers/ratifiers expect that the EP clause would not apply to racial segregation? Probably. After all, the same Congress that passed the Fourteenth Amendment segregated the schools in DC. But Scalia *could* argue that Plessy was rightly decided on the merits, that school segregation in 1954 was inconsistent with "separate but equal", and that desegregation at that time was the only way to ensure equality. It's a stretch, but it's the best that I can do.

Suppose, now, that the hybrid theory makes sense of Justice Scalia's positions. This gets rid of the charge of (outright or blatant) inconsistency. But it remains to be seen whether the position itself is well-justified or coherent. And it may very well be that there are other positions of Justice Scalia's that do not fit with the hybrid view. But I think that the view is worth exploring, even if (as I think) it is (badly) mistaken.

Michael C. Dorf said...

Great comments all. A few quick reactions to Sam's interesting suggestion of a hybrid approach:

1) I think that the post-hoc rationalizations in Heller (of both the conservatives and the liberals) are probably not consciously such. That is, I think both sides believe the history they invoke. (My own research in this matter about a decade ago left me thinking that the 2nd Amendment was always a bit of a mystery.)

2) I think the line between cases in which there were expectations and cases in which there were no expectations will itself be fuzzy, so that for the hybrid approach even to get started, one would need something more like a spectrum.

3) Although I doubt that I would find a normative justification for hybrid originalism persuasive, I do think it would be much better for Justice Scalia to articulate it and explain it, rather than doing what he does--which is to toggle without explanation between expectations originalism to criticize results he disfavors and meaning originalism to support results he favors.

Hashim said...


You're right that Scalia uses original expected application, but I'm not so sure he uses it inconsistenly. Or, at least, I don't think you've proven your assertion that he does.

Scalia typically uses OEA to defeat claims of constitutional rights that are belied by the widespread existence of statutes at the time of enactment that all would have been unconstitutional -- e.g., abortion, sodomy, DP, etc.

But, setting aside Brown v. Board for the moment (which I know is a big potential caveat), your post doesn't identify a single example of a field where he has found a constitutional right whose existence is likewise belied by public enactments.

For example, although you invoke affirmative action, what evidence is there that states routinely practiced affirmative action in 1868? (The feds don't count, because the EPC didn't apply to the feds until Earl Warren's Bolling magic.) Likewise, what evidence is there of federal or state campaign finance regulations that would have violated Citizens United?

On Brown, we can agree to disagree about whether Judge McConnell's seminal article adequately refutes the OEA-based critique of Brown.


Michael C. Dorf said...


To reconcile Brown with OEA, you invoke Michael McConnell's 1995 Va L Rev article. I think he's wrong, for reasons articulated at length by Mike Klarman and Herbert Hovenkamp, and accepted by just about everybody else. McConnell's efforts are heroic--and his work quite interesting--but he is very much swimming against the tide.

You ask for a concrete example. Here's one: The common law in just about every state circa 1791 and 1868 permitted recovery for defamation, even by a public official, without regard to the principles articulated in NY Times v. Sullivan; yet Justice Scalia accepts the case. Just stare decisis, you say? How about the fact that the rule articulated for the first time by the Court in an opinion by Justice Scalia in RAV v. City of St. Paul--under which government may not single out otherwise proscribable speech based on content--was previously unknown to state law, and thus presumably contrary to the OEA circa 1791 and 1868? Now maybe I'm wrong about one of these or the many other examples I might cite, but my point isn't that Justice Scalia gets it wrong: My point is that he frequently shows no interest whatsoever in the OEA. (I haven't looked into whether there was state-level race-based affirmative action in 1868, but apparently neither has Justice Scalia, whose pronouncements on other rights would seem to make that inquiry crucial).

Hashim said...


First, a quick rejoinder to your two specific examples. Then, a follow-up on my longer thoughts on your more general response.

I'm almost certain that Scalia has publicly said that Sullivan is wrongly decided and that he's only adhering to it as a matter of stare decisis given the tremendous doctrinal edifice that's been built on top of it, leading to a fair amount of reliance interests (both by speakers and by state lawmakers who might well have pruned back the common-law rules if the 1A hadn't been erroneously interpreted to do the job for them). So that example does not work (unless you want to allege inconsistency in application of stare decisis principles, which is a different debate altogether).

On RAV, you say the rule was previously unknown to the common law, but that's non-responsive to the point in my post, which was that Scalia's primary guidepost for OEA is the *widespread existence of Founding-era legislative enactments* that *facially belie* a claimed constitutional right. And you haven't suggested that there were numerous Founding-era laws that conflicted with RAV, only that the RAV concept would have been novel then.

Hashim said...

That leads me to my more general thoughts. In cases where it has not been asserted that Founding-era laws immediately negate the existence of a claimed constitutional right, you seem to be arguing that Scalia should take several additional steps under OEA.

First, he should do his own independent historical research to make sure that such laws did not actually exist. That's a fair point, though it's also fair for judges to rely on the presentation of the litigants and to assume that the absence of an argument in the briefing is because the argument is unavailing.

Second, when the research confirms the true absence of conflicting Founding-era laws, that can be explained in one of two ways: either everyone knew the law at issue was unconstituitonal and so no one even bothered to enact it (e.g, mandatory abortion for second children) or the law might well have been constitutional but there was no public motivation for passing it at the time (e.g., food and drug regulation). You seem to be arguing that Scalia is obligated in every case to determine which is correct, by resorting to second-best evidence of OEA -- namely, the hypothetical proclamations at the Founding of either the legal experts or the informed public at large.

Now, again, I don't disagree that it would be good if Scalia went and did that research in every case. But, once again, it's also certainly reasonable in such cases instead to rely on the legal arguments actually made by the parties. And if the parties don't answer the q, and simply rely on first principles or doctrinal constructs that are not themselves inconsistent w/ OEA, then it's fair for Scalia to adjudicate the case accordingly. It'd be an incredible burden for him and his clerks to do independent originalist research in every case, especially when most of the Court will just ignore the fruits of his labor regardless.

In short, in order to convince me he's being inconsistent, you'd have to show one of the following: 1) that, due to his policy preferences, he has actually ignored certain Founding-era laws or commentators of which he was actually aware; 2) that he has discriminated based on policy preferences when deciding whether he's willing to supplement the research of the parties with respect to Founding-era laws; or 3) that that he has discriminated based on policy preferences when deciding whether he's willing to supplement the research of the parties with respect to Founding-era commentators.

As the foregoing hopefully make clear, I don't think it's fair to mix and match across these categories, since the amount of judicial work necessary differs dramatically, and so you need to compare apples to apples before impugning his motives.

I look forward to seeing if you can identify any examples.


Michael C. Dorf said...

W/r/t examples, I continue to think that the Freedmen's Bureau (and other institutions, including some that were expressly race-based, not just formerly-enslaved-based) is (are) highly relevant to the question of the specific expectations of the drafters and ratifiers of the 14th Am. It's true that this was a federal project, but OEA is after are expectations, as to which the non-applicability of the 14th to the fedl govt is not dispositive. On the broader question, I think two facts are extremely telling:

1) Ideological factors are about as good a predictor of Justice Scalia's votes as they are of the votes of other Justices (both liberal and conservative) who do not purport to follow his version of originalism (whatever exactly that is)--and those factors are quite predictive.

2) As to whether any Justice has a duty to go beyond the briefs, the system is dynamic. After Justice Scalia made clear that he was interested in textual argument in statutory cases to a greater extent than the Court had previously been attentive, the briefs started loading up on it. If Justice Scalia (or another Justice) were to send a stronger signal that he really would not vote to invalidate a law if there were clear evidence that the framing generation expected laws of that sort to be valid (whether as manifest through state or federal laws then on the books or otherwise), then the lawyers would start to do this work for him.

And now on to Neil's next post!

tjchiang said...

Sorry to be late to the party, but I wanted to note that I had a long debate with Orin Kerr about a very similar topic on prawfsblawg only a few weeks ago: