If Racial Desegration, Then Same-Sex Marriage? Originalism and the Supreme Court's Fourteenth Amendment

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I. INTRODUCTION

Whatever constitutional scholars may think of Robert Bork's other views, most would agree with his conclusion that "Brown [v. Board of Education] (1) has become the high ground of constitutional theory.... [A]ny theory that seeks acceptance must ... account for the result in Brown" (2) and its progeny. (3) The Brown Court itself disavowed a theory of originalism (or the theory that the original understanding of a constitutional provision is authoritative (4)) in concluding that racially segregated public schools contravene the Fourteenth Amendment; it deemed historical evidence of that Amendment's original meaning "inconclusive." (5) In agreeing that the Brown Court's assessment of history was less than forthright, (6) most scholars go one step further. As Michael McConnell explained recently, "there is something very close to a consensus [among constitutional theorists] that Brown was inconsistent with the original understanding of the Fourteenth Amendment, except perhaps at an extremely high and indeterminate level of abstraction." (7)

If the conventional wisdom still is against an originalist explanation for Brown's result, though, this "wisdom" certainly is not unchallenged. McConnell has written perhaps the best-known challenge, (8) but he is not alone. Michael Perry, for example, has concluded, "[The] consensus [McConnell described] is mistaken." (9) McConnell, (10) Perry, (11) and other scholars (12) who challenge the supposed antioriginalism behind Brown and racial desegregation have insisted, albeit with important variations, that the Fourteenth Amendment was originally understood to represent a broadly defined equality norm.

Not a few constitutional scholars, however, remain unconvinced. More precisely, many question whether the norm or principle advanced by scholars such as McConnell and Perry in the name of the Fourteenth Amendment's original understanding reflects the Amendment's actual original understanding. In the opinion of these "skeptics" the Amendment's original meaning is much narrower than the equality principles defended by the "Brown is originalist" camp and too narrow to sustain Brown's result, or racial desegregation generally. (13)

Contrariwise, if Brown's result or racial desegregation can be defended in originalist terms, some scholars have suggested that it is at the expense of the "conservative" view of originalism's implications for constitutional interpretation. (14) According to Michael Klarman, this is true of McConnell's defense of Brown: "It ... carries logical implications that one may doubt McConnell wishes to endorse .... [T]he same argument ... would justify expanding protected groups to include women, aliens, gays, etc." (15) If Klarman is right, McConnell defends a Fourteenth Amendment principle that "collapses the distinction between originalism and other, supposedly less constrained, interpretive theories." (16)

In the view of yet another camp of scholars, the debate about Brown and the Fourteenth Amendment's original understanding is an academic exercise of little relevance to the Court's actual decision making. (17) The Court has simply embraced a broad equality norm in the name of the Amendment. (18) Although this norm may be defined more broadly than originalism can account for, the Court will no more relinquish this embrace than repudiate the outcome of Brown and its other racial desegregation decisions. (19)

For those who have criticized the Court for its forays into the culture war (20) and demanded its retreat from this conflict, scholars' reactions to the Brown-originalism debate should be unsettling. The Court's "transgressions"--its usurpation of "political" authority to decide questions about the social and cultural order that properly belongs to citizens and their representatives--usually has been attributed by these critics to its adulteration of, or utter disregard for, the Constitution's original understanding. …