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.)