Many left liberals, conservatives and libertarians who try to make “respectable” arguments wish to think of themselves as the heirs to the late 18th Century classical liberal tradition. Some on the non-respectable Right and Left repudiate such. The Fourteenth Amendment to the US Constitution, passed after the Civil War, is a glorious mid 19th Century classical liberal text that relates back to the classical liberalism of late 18th Century America and applies such norms (though through mid 19th Century eyes) to the states. When the rubber hits the road, however, it’s also a complicated mess.
What brings this observation to mind? The Trinity Lutheran Supreme Court decision and a recent dialog on it between Professors of Law Randy Barnett (Georgetown) and Bruce Ledewitz (Duquesne). This case involved a state law and policy that denied a religious entity access to public funds that were otherwise available to secular entities. The case was litigated on federal constitutional grounds. The First Amendment’s religion clauses are implicated. As is the Fourteenth Amendment.
But, from the point of view of originalism, the decision was ridiculous. If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches. And, even if a decision by Missouri to pay the church might somehow be thought not to violate the Establishment Clause, it could not possibly be argued that the original Free Exercise Clause required a payment from Missouri. You could have asked any member of the founding generation whether the Free Exercise Clause ever required the payment of public money to a church and the answer would have been a unanimous no.
My observation: Classical liberalism has “liberty” and “equality” as ideological book ends. The First Amendment to the US Constitution is such a “liberal” text. It’s clear the Free Exercise Clause validates a “liberty” right. The Establishment Clause often (but not always) validates an “equality” right. I agree with Ledwitz that this doesn’t seem to be a free exercise of religion/liberty issue.
However, Ledwitz’s understanding of the Establishment Clause is questionable. Further, Trinity Lutheran did involve an equality or equal treatment issue. Whichever text ends up doing the work, arguably the outcome was correct on some kind of originalist grounds. The Fourteenth Amendment guarantees some kind of substantive norm of equality or equal treatment.
This is from Barnett’s response:
I am not an expert on the Religion Clauses, so I am not as confident about their original meaning as Professor Ledewitz. But every originalist–indeed every living constitutionist–understands that neither the Free Exercise Clause nor the Establishment Clause originally applied to the states at all. Instead, it applied to Congress. What exactly an “establishment of religion” was in 1791 is a matter of good faith academic dispute. But some thoughtful originalists have maintained that, whatever constituted an “establishment of religion,” the First Amendment’s wording “make no law with respect to” forbade Congress both from establishing a national religion (at minimum) and also from disestablishing a state religion. On this account, the Establishment Clause operated–perhaps exclusively–as a federalism provision, expressly acknowledging that Congress had “no power” in this area, with all powers pertaining to religion reserved to the states.
In addition, some originalists maintain that, because the original meaning of the Establishment Clause was a federalism provision barring Congress from disestablishing state religions, it did not enunciate an individual right that could be considered a Privileges or Immunity of citizens of U.S. citizens. Others, like Kurt Lash, disagree on the ground that, by 1868, the meaning of the Establishment Clause had evolved so its public meaning at the time of the 14th Amendment did include an individual privilege or immunity. But if Lash and others are wrong about this, then the original meaning of the 14th Amendment protected only free exercise rights from state infringement; it did not bar states from making laws that could constitute an establishment of religion. …
And from Ledwitz’s rejoinder:
4. All of Randy’s discussion of the Fourteenth Amendment and related matters is beside the point. The Court did not mention those matters. I wrote that there are no originalists on the Court. A majority of the Justices wrote that the Free Exercise Clause required the payment of public money to a church. That is unjustifiable by any stretch of originalism. They wrote that way because they were assuming incorporation of the Free Exercise Clause against the States as it would be interpreted against the federal government. So they dealt with Free Exercise only and did so in an unsupportable way from an originalist perspective. Randy writes that they could have written a different opinion. But then they might be originalists. But they did not, so they are not.
I should also add here that the bigotry of the Blaine Amendments adopted in State Constitutions after 1875, which Randy mentions, should be irrelevant to an originalist, though Justice Thomas has also mentioned them in a similar context. In originalism, original public meaning does not change. For the living constitution, on the other hand, the experience of the Blaine Amendments is part of political learning that demonstrates that our original understanding of Free Exercise was too narrow. Randy’s reference to the Blaine Amendments just shows that it is impossible to be an originalist. We learn over time what the Constitution means. It cannot be, should not be and isn’t fixed. (That was also true of Justice Scalia’s majority opinion in Heller, in which Justice Scalia learned from 19th century state judicial decisions that the second amendment should not be interpreted to protect concealed carry–why are 19th century opinions relevant to the original public meaning of the second amendment?)
By the time we get to Barnett’s final response, a different part of the 14th Amendment is discussed as they argue over “originalism’s” viability. Barnett tackles the following assertion by Ledwitz:
To put it simply, by 1954 de jure school segregation did not constitute equal protection of the laws, whether it did before or not.
Yes, I’ve seen it argued that any theory of law that holds Brown v. Board of Education to be wrongly decided simply isn’t viable. So Barnett counters with:
Fact check: Misleading. As Michael McConnell showed in the 1990s (see here and here), nearly everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it. As a constitutional scholar, Professor Ledewitz must be aware of this. …
What to make of all of this?
Over the years, I followed this “originalism” debate in constitutional law fairly carefully. Perhaps I could be categorized as a “faint hearted originalist.” The kind of originalism I would endorse is similar to that which has been espoused by among others, Barnett, Akhil Amar, Jack Balkin and Timothy Sandefur.
One issue I have is I often see promoters of originalism framing it as though if we don’t interpret the Constitution as “originally” intended, the Constitution can mean “anything.” Well, here I stand for the proposition I don’t think the Constitution should mean “anything” five members on the Supreme Court decide; there should be constraints and unhappy endings.
Where I do get a bit perplexed is given the broad generalities contained in the Constitution’s text, and other ambiguities in the record, there often is more than “one” right answer to legal questions presented such that Justices will often have latitude on fundamental constitutional questions by virtue of the way the system is structured. Yet only one view can prevail. And issues of fundamental import turn on which view prevails.
Further, sometimes the “rightest” originalist answer is indeed not viable (because Brown would be wrongfully decided) but there are other “originalist” answers that might “work.” So originalists do, as I see it, get to pick and choose from the different kinds of originalisms to suit their outcomes.
Again, that doesn’t meant jurists should be unconstrained by rules or that any degree of choice means the Constitution ought and does mean anything a majority on the court decides.
Interpreting the Bible is analogous. We often hear certain preachers who argue for “one correct” understanding of the Bible say “it means X and only X” in an objecting sense, when in reality it’s possible that it could also mean Y and Z. Yet it’s also true that certain positions — A, B & C — are not tenable. Certain understandings are more plausible than others; but there are also multiple plausible understandings of the text that contradict one another, where only one outcome is entitled to prevail.
So if someone said that the Bible teaches a Giraffe tempted Adam and Eve in the Garden of Eden, that’s an easy one. It’s false. End of discussion. Other questions aren’t so easy (like what fruit was it that Eve was tempted with? Or what did Jesus mean when He said you should eat His flesh and drink His blood?).
So how do we understand Brown v. Board of Education and originalism? As Ledewitz alluded to above, it has been claimed that under the original expected application of the 14th Amendment’s text, the political legality of racial segregation was preserved (that is, the framers and ratifiers didn’t think they were making racial segregation in railroads, public schools, marriage, etc., unconstitutional or something potentially outlawed by the 14th Amendment). Others, like Judge McConnell differ. And currently, as we know, the Supreme Court rules such unconstitutional under the Equal Protection Clause of the 14th Amendment.
Yet, as Barnett alluded to above, it was the Privileges or Immunities Clause that was meant to deal with this. Indeed, there is a strong case to be made that neither the Due Process NOR the Equal Protection Clause guaranteed ANY substantive rights, not against racial discrimination or ANYTHING. That both were entirely procedural clauses. The Due Process Clause targeted courts while the Equal Protection Clause targeted the executive. And held that if you were a “person” — i.e., a human being — you had to be held to the exact same set of procedural rules. And this was whether one was black, a Mormon, a Hell’s Angel (of whatever the mid-19th Century equivalent thereof) or a thief.
There was no substantive right in either the Equal Protection OR Due Process clauses to be free from racial discrimination, to practice one’s religion, to be a member of a rebellious club, or to steal. Rather, by virtue of your humanity, the same set of rules — whatever they may be — had to apply to all people.
This is something many people unaware of historical nuances of the civil rights don’t “get.” If a black person beats up a white person or vice versa, that’s assault and battery. There are laws on the books against assault and battery that have always dealt with this. Yet, law enforcement and courts run by majorities or those in power might simply decide not to apply the same already existing rules to selective disfavored groups. It doesn’t matter if it’s blacks, Mormons or members of the Hells Angels. If you are a person, regardless of character or trait, the same set of rules have to apply. But if the Hells Angel committed robbery, he could be so punished.
The withdraw of such procedural protection was a key method of systematic oppression of black people in Jim Crow. But it’s also possible to guarantee such protection while still permitting government distinctions on the basis of race.
However, the substantive right to be free from racial discrimination, though not something the procedural clauses of the 14th Amendment (i.e., Equal Protection) were meant to deal with, was still, as Judge McConnell argues something the framers of that amendment contemplated. Rather, they thought the Privileges or Immunities Clause should do the work.
So provided we just switched the Privileges or Immunities Clause for the Equal Protection Clause, Brown, Loving v. Virginia, etc., would be kosher? Not so fast. Even if Judge McConnell’s account is correct, look closely to what Barnett reported:
[N]early everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it.
Yes, it was the House and Senate’s responsibility to prohibit racial discrimination as a “privilege or immunity” of the 14th Amendment. There is a strong originalist case to be made — arguably the strongest — that it’s the jurisdiction of Congress to define by statute those substantive privileges or immunities. That the original meaning of the 14th Amendment was meant to provide a constitutional basis for the original post Civil War mid-19th Century Civil Rights Acts.
That would mean that even though such originalism teaches Brown was wrongly decided, Congress would still have the constitutional authority to enact such a decision and the Congress who passed the Civil Rights Act of 1964 could still have statutorily enacted Brown, Loving, etc. as a “privilege or immunity.” And they would have.
One day a few years ago, I was in a room full of very distinguished originalists in a private meeting at an ivy league location, where I was the least important person in the room. They agreed what I reported above was the best originalist understanding of the 14th Amendment. Since it was off the record, I’m not going to name names.
One person in the room noted that this understanding, though correct, was awkward. Given the original meaning of the Privileges or Immunities Clause of the 14th Amendment, we could get a new constitutional conventional with every new Congress. The response from the group was that originalists have to do the right thing and deal with unhappy endings.
There’s debate as to whether the 14th Amendment was even meant to incorporate ANY part of the Bill of Rights to apply against the states. Justice Scalia has admitted he’s not convinced it was, but accepted incorporation because of Stare Decisis. Philip Hamburger (Columbia University), one of the brightest conservative law professors, doesn’t think it was. And that means everything in the Bill of Rights — freedom of speech, establishment, free exercise of religion, rights of criminal defendants — is left to the states. That would mean Trinity Lutheran was wrong and Professor Ledewitz is right because “religion is left to the states.” If a state wants a Blaine Amendment or to establish the Roman Catholic Church, or the Unitarian Universalists for that matter, they could because religion is left to the states.
Or even if the Privileges or Immunities Clause was meant to include both rights contained in the Bill of Rights as well as rights against non-discrimination (i.e., rights to equal treatment) on the basis of race, religion (and other issues) it’s still Congress’ responsibility to pass legislation to protect those and for courts — including the Supreme Court — to attempt to do this is judicial usurpation of Congress’ role.
Don’t forget, even if religion is otherwise “left to the states,” all federal law trumps all state law. Federal statutes trump state constitutions. So if Congress wants to guarantee the free exercise of religion against state and local governments, that would trump any state law that would attempt to do otherwise.
This is a much different constitutional world than the one in which we currently live. And it’s one that most notable originalists don’t seem interested in publicly defending, because it’s not viable. But it’s arguably the most correct one according to the method of original expected application of the texts.
It’s certainly a form of originalism that I wouldn’t be comfortable with. Luckily, we have different kinds of “originalisms” from which to choose.
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