Originalism is a hot topic these days, with Supreme Court nominee Amy Coney Barrett’s embrace of the approach and insistence that it is the best way to maintain fidelity to the text and meaning of the Constitution and its amendments. Opponents of Judge Barrett have noted that when the original Constitution was ratified, she herself would have been considered not just an improbable nominee, but an impossible one due to her gender and married status. While clever, this argument fails to account for the Nineteenth Amendment, and originalists readily accept that constitutional amendments are fully part of the Constitution.
Some have focused on Brown v. Board of Education, but Judge Barrett has characterized it as a “superprecedent,” thereby evading the question of original intent. Regardless, some scholars, most notably Michael McConnell, have made good faith attempts to defend Brown on originalist grounds. While I don’t find his argument to be persuasive, it is, in the words of my civil procedure professor of long ago, Sam Estreicher, “an argument” and deserves to be taken seriously. One of many good responses is Ron Turner’s, in which he reminds us that the counsel for South Carolina in the original Brown arguments defended segregation on the ground that the same Congress that first discussed the Fourteenth Amendment also passed legislation providing for segregated schools in the District of Columbia.
But I digress. Were I on the Senate Judiciary Committee, I would not have asked about Brown, Griswold, or Roe; these questions have been asked of nominees for years and the lines of this particular play are known to all. The question I would ask is “What about Loving v. Virginia, the 1967 case in which the Supreme Court struck down state bans on interracial marriage?” And just agreeing that it was correctly decided is not enough.
Loving and original intent
In Loving, the Supreme Court used the Fourteenth Amendment to invalidate Virginia’s Racial Integrity Act, which had made Mildred and Richard Loving refugees from their home town and families. The Court made no pretense of considering the Fourteenth Amendment’s original intentions for good reason – such a consideration would have directed the Justices to rule the other way.
At the time that the Fourteenth Amendment was debated and ratified, states were struggling with questions of how to manage their new Black citizens and how far the implicit promise of equality contained within emancipation should go. Many aspects of this debate played out through distinctions between civil and political equality on the one hand, subject to the demands of equality, and social equality on the other, which legal experts saw as not amenable to state mandates. Marriage, however, was different. And the question became explosive when, in 1872, the Alabama Supreme Court, staffed by Republicans, ruled that Alabama’s criminal ban on interracial intimacy violated the Civil Rights Act of 1866 and the Fourteenth Amendment’s principle of equality.
As I discuss in Chapter 2 of my book Racial Union and in a separate article, this ruling initiated a decade of struggle in Alabama and elsewhere that would finally arrive in the Supreme Court for resolution. As the debate played out, courts underlined an understanding of the role that marriage played in society and for the state. This vision was articulated most comprehensively in two rulings, an 1871 Indiana case, State v. Gibson, and the Alabama Supreme Court’s 1878 ruling in Green v. State reversing Burns. The Indiana ruling situated marriage as a special kind of contractual relationship because of its relationship to the states, claiming that allowing federal intervention into this most crucial of state institutions would destroy the states. Green rejected Burns’ reading of marriage as an individual and private choice that the states could not constrain racially. Marriage was rather the foundation of the state itself. Marriage, and marriage alone, could create proper families, the fundamental unit of the state.
By the time the question reached the Supreme Court, it was no longer about marriage, but rather whether states could criminalize other forms of interracial intimacy as well. Pace v. Alabama concerned an appeal by a couple who were convicted of engaging in interracial fornication. In a ruling issued several months before the infamous Civil Rights Cases of 1883, the Court held that bans on interracial intimacy met the constitutional standard for equality because both Black and white defendants were eligible to receive the same punishment. This principle closed down debate over the legitimacy of such laws until the California Supreme Court narrowly struck down California’s bar on interracial marriage in 1948. The U.S. Supreme Court briefly considered whether to tackle the issue in the mid-1950s, but decided not to decide, determining in conference that the issue would be too explosive in the wake of school desegregation.
Learning from history
What can we learn from this history? First, originalism cannot get us to the “right” answer in Loving v. Virginia. Indeed, the ugly word “miscegenation” was coined in 1864 as a political dirty trick. Anonymous authors circulated a pamphlet to prominent abolitionists and Republicans advocating for interracial relationships, hoping to secure their endorsements and then use these endorsements to discredit them publicly. (It didn’t work.) A strong, though not entirely universal, consensus situated the marriage contract as both special and public, allowing the states to regulate and restrict marriage on racial grounds. Prevention of the formation of legitimate interracial families, and the production of legitimate interracial children were both acknowledged to be legitimate state interests.
If originalism can’t make the grade, the best that can likely be done from a conservative standpoint is an insistence on constitutional color blindness and, somewhat ironically, a discussion of the importance of marriage as a fundamental right. Coupled together, this equal-protection-plus-due-process claim gets the job done, but does so by attempting to sever Loving from its more radical implications. I would argue, though, that this effort cannot ultimately bootstrap itself out of originalism far enough to achieve self limitation. To accept Loving is to accept marriage as fundamental both to the state as an organizing and legitimating institution and to the individual as an expression of intimate choice and personal autonomy. A conception of marriage frozen in the amber of the post-Civil War era will not do for this project.
So ultimately, what does it mean if a self-proclaimed originalist says that Loving v. Virginia is rightly decided? I believe they should be pressed to provide an explanation for their reinterpretation of marriage and its meaning. Such a reinterpretation would clearly have consequences for many important post-Loving concerns, including same-sex marriage. But marriage isn’t the only such issue. What’s the mechanism for determining when a core institution of the states like marriage or education – or perhaps voting – should be reinterpreted because the struggles of the 1860s and 1870s can’t enlighten us? What factors enable us to see that an institution has changed enough either in its operation or in its relationship to the state to warrant this kind of reconsideration? And what mechanisms should we use to discern these institutions’ meanings, and their interplay with constitutional norms and standards?
We the People deserve answers to these questions before we grant individuals the authority to impose their own answers for the country.