Friday, October 28, 2022

Federal Exceptionalism and the Fourteenth Amendment's Framers' Intent

 by Michael C. Dorf

My latest Verdict column criticizes the recent turn to history by the SCOTUS conservative super-majority on a number of grounds, some of which will be familiar to readers who follow debates over originalism and constitutional interpretation but one of which I believe is at least somewhat novel. I explain that there is the potential for the Court either to destabilize nearly all of constitutional law or else merely shift the terms but not the substance of the debate. Here's the core of the argument:

[T]he shift to a history-alone approach creates a boundary problem. If old precedents using other methods are presumptively preserved via stare decisis but new cases will be decided using the history-only method, one must have some further method for distinguishing old from new. That itself is a tall order, because lawyers typically do not ask for a brand new rule of law. Instead, they contend that the court should simply apply an existing rule or standard in a slightly new context.

There's more to that argument, of course, so I suggest that readers who are intrigued (or even mildly interested!) check out the full column. While doing so, they will note that in the course of recounting more familiar critiques of originalism, I point to self-described originalists' failure to apply their methodology consistently when doing so could lead to results they strongly oppose on ideological grounds. My chief example concerns evidence that the framers of the Fourteenth Amendment did not regard what we would now call affirmative action as inconsistent of their egalitarian principles. I made a more expansive version of the point on the blog in the context of unpacking (and worrying over) Justice Jackson's seeming endorsement of originalism in the recent oral argument in the Voting Rights Act case from Alabama. In the balance of today's post, I want to respond to a counter-argument I have sometimes encountered (including in correspondence from a reader of that earlier blog post).

The evidence cited in my earlier post shows that the same Congress that proposed the Fourteenth Amendment also adopted laws that conferred benefits specifically on African Americans so designated by race. The counter-argument to which I want to respond now begins with the fact that the Fourteenth Amendment's Equal Protection Clause applies to states and their subdivisions (i.e., local governments) but not to the federal government. Thus, the counter-argument continues, the adoption of race-specific measures by the Reconstruction Congress does not tell us much if anything about what the members of that Congress thought equal protection meant, because nothing they enacted at the federal level could run afoul of the Fourteenth Amendment.

Now onto my response.

Let me begin with a clarification. We are trying to discern the subjective intentions and expectations (SIE) of the Fourteenth Amendment's framers, which might not necessarily reflect the constitutional text's original public meaning (OPM)--and contemporary originalists typically say that constitutional interpretation aims at uncovering OPM, not (necessarily) SIE. Nonetheless, although most constitutional scholars writing in an originalist mode are usually careful to aim at OPM, Supreme Court justices routinely ignore the distinction--willy-nilly citing evidence about what the framing generation or particular framers thought about specific applications, which bears on SIE but does not necessarily bear on OPM. So evidence of SIE remains relevant at the Supreme Court.

Moreover, even if one carefully draws the distinction in principle, in practice evidence of SIE often is relevant to OPM. Words do not have meaning in a vacuum. If we want to know what the framers thought the words "free speech" meant in 1791, when the First Amendment was ratified, we could do worse than to look at the laws passed around that time. Unless we assume the framers were shameless hypocrites, we should assume that they deemed laws they enacted consistent with the constitutional provisions they had only recently proposed for ratification.

To be sure, even then there will be exceptions. For example, no less important a case than Marbury v. Madison held unconstitutional a portion of Section 13 of the Judiciary Act of 1789, which was written by Oliver Ellsworth--who was a key player at the Constitutional Convention and apparently approved of the portion of Article III with which John Marshall held Section 13 inconsistent. (Ellsworth was also Marshall's predecessor as Chief Justice.) So it is possible that a law enacted almost exactly contemporaneously with a constitutional provision can be deemed inconsistent with that provision rather than taken as evidence of that provision's meaning.

However, that is the rare case and, it's important to remember, Marbury hardly proceeds in what we would now describe as originalist fashion. Instead, Marshall reasons from broad general principles. And across the range of cases, the Judiciary Act of 1789 is typically taken as strong evidence of the meaning of Article III.

Fair enough, my critic might concede, but Article III applies to the federal government, and so roughly contemporaneous federal statutes can sensibly serve as evidence of what people at the time (or at least members of Congress at the time) thought Article III means. By contrast, the critic continues, because the Fourteenth Amendment's Equal Protection Clause imposes limits on the states but not the federal government, contemporaneously enacted federal statutes tell us little about what the Reconstruction Congress thought "equal protection" entailed. Unencumbered by the Equal Protection Clause, the Reconstruction Congress would not have bothered to ask itself whether its statutory enactments complied with that clause. Concretely, the Reconstruction Congress could have thought that what we would now call affirmative action was forbidden if enacted by the states but permissible if enacted by the federal government.

I will concede that the argument I have just laid out names a conceptual possibility, but one needs some good reason to believe it has actually occurred in some particular context. For example, Article I, Section 10, forbids states from entering into treaties, but it would be foolish in the extreme to use the fact that the Senate has from the early days of the Republic approved of treaties to try to show that the Article I, Section 10 language should be disregarded. Why? Because Article II, Section 2, expressly grants the Senate, when acting with a 2/3 majority, to give its advice and consent to treaties made by the president. Here the Constitution disallows a treaty-making function in the states in order to grant it exclusively to the president and the Senate.

By contrast, there is no similar division of authority reflected by the fact that the Fourteenth Amendment limits only the states. There is no "Unequal Protection Clause" saying that, by contrast with the states, Congress shall have the power to deny equal protection of the laws. Yes, the Equal Protection Clause, by its terms, limits only the states, but absent contrary evidence (the existence of which I am unaware), that is chiefly because the Reconstruction Congress quite rightly regarded state governments--especially those of the former Confederacy--as posing the most salient threat to equal protection for the freedmen and freedwomen. States, not Congress, had enacted Black Codes. Accordingly, it is fair to assume that "equal protection of the laws" was not simply a division of authority (as in the treaty power example) but a value to which the Reconstruction Congress was committed.

Indeed, we don't need to assume that point. We have a rich historical record. The reason Congress didn't propose to bind itself by the Equal Protection Clause was surely not that it wished to deny persons equal protection. Rather, the Reconstruction Congress understood the Fourteenth Amendment chiefly as a mechanism by which Congress itself--protected against white Southern revanchism through Sections 2 and 3--would legislate via Section 5. The Reconstruction Congress didn't bind itself via Section 1 (except arguably in the Citizenship Clause) because Congress saw itself as the primary interpreter and enforcer of the Fourteenth Amendment. (Professor Mark Graber's work on Reconstruction provides very strong evidence.) Far from being irrelevant to the meaning of the Fourteenth Amendment's Section 1 on the ground that Section 1 doesn't apply to Congress, the statutes the Reconstruction Congress enacted contemporaneously with the Fourteenth Amendment show us what Congress thought the Fourteenth Amendment meant--because the Reconstruction Congress understood those statutes as enforcing the Fourteenth Amendment.

Accordingly, seen in proper historical perspective, the counter-argument I am considering is extraordinarily weak. When Congress enacted race-based measures for the benefit of formerly enslaved and other African Americans it tacitly but unmistakably expressed the view that such measures are not only consistent with equal protection but are means of ensuring equal protection.

Having dispatched the counter-argument that frames today's blog post, I hasten to add that I am not making an affirmative case for construing the Equal Protection Clause solely or even principally in accordance with the Reconstruction Congress's subjective intentions and expectations. Doing so would mean that affirmative action would be permissible, but it would also mean that de jure racial segregation is  permissible. And there are other good reasons of principle to reject SIE originalism (and, for that matter, to reject those forms of OPM originalism that are not simply living Constitutionalism in originalist garb).

So what is the point? Simply that the SCOTUS conservatives can fairly be charged hypocritical dishonesty if and when they insist that the Equal Protection Clause mandates color-blindness. The fact that the Equal Protection Clause does not apply to the federal government in no way undercuts the evidence that the framers of the Fourteenth Amendment intended and expected it to permit what we now call affirmative action. Thus, the expected failure to apply the original understanding with respect to affirmative action (or the failure to apply it in any remotely honest way), when the conservatives purport to be bound by the original understanding when they think it leads to results they like--as with respect to abortion, guns, and church-state separation--will be rank hypocrisy.