Originalism and Loving V. Virginia

By Calabresi, Steven G.; Matthews, Andrea | Brigham Young University Law Review, September 1, 2012 | Go to article overview

Originalism and Loving V. Virginia


Calabresi, Steven G., Matthews, Andrea, Brigham Young University Law Review


TABLE OF CONTENTS

I. INTRODUCTION ...................................... 1394

II. THE MISTAKEN RELIANCE ON EVIDENCE OF ORIGINAL INTENT ...................................... 1399

III. THE ORIGINAL MEANING OF THE RECONSTRUCTION TEXTS ...................................... 1413

A. Same ...................................... 1424

B. Full ...................................... 1426

C. Equal ...................................... 1429

IV. PUBLIC PERCEPTION ...................................... 1433

V. THE CASE LAW ON RACIAL INTERMARRIAGE IN THE 1870S AND LATER ...................................... 1463

VI. CONCLUSION ...................................... 1474

I. INTRODUCTION

The question is not what the Senator means, but what is the legitimate meaning and import of the terms employed in the bill. . . . What are civil rights? What are the rights which you, I, or any citizen of this country enjoy? . . . [H] ere you use a generic term which in its most comprehensive signification includes every species of right that man can enjoy other than those the foundation of which rests exclusively in nature and in the law of nature.1

It is widely agreed among legal academics and judges that originalism cannot explain or justify die United States Supreme Court's 1967 ruling in Loving v. Virginia,2 which held that laws banning racial intermarriage were unconstitutional. Originalism is a theory of constitutional interpretation expounded by Justices Antonin Scalia and Clarence Thomas as well as by former Judge Robert H. Bork and former Attorney General Edwin Meese III. Originalists believe that the constitutional text should be interpreted according to the original meaning of the words used as that meaning would have been unveiled in contemporary dictionaries, grammar books, and other indicia of objective public meaning.3 The critics of originalism, from Richard Posner4 to Cass Sunstein5 to Jack Balkin6 and Michael Klarman/ all say that the alleged inability of originalism to explain Loving v. Virginia, which is one of the great human rights triumphs of the last fifty years, is a major blow against the ScaliaThomas theory of judging. Even the originalist scholar, former Judge Michael McConnell, who has offered an originalist defense of Brown v. Board of Education,8 falls silent when it comes to defending Loving v. Virginia on originalist grounds. McConnell evidently feels tíiat there are just too many statements in the congressional legislative history from die 1860s and 1870s in support of laws banning racial intermarriage for Loving v. Virginia to be defensible on originalist grounds.9 McConnell undoubtedly diinks Loving is right as a matter of policy and that it ought never to be overruled, but he is unable to say he would have joined the opinion when it was first handed down in 1967. 10

We think the conventional wisdom on originalism and Loving is incorrect. In fact, we think that a proper application of Scalia-style originalism and textualism leads rather easily to the conclusion that Loving was rightly decided. The mistake Scalia's critics make is that they rely exclusively on the statements made in the legislative history of the Civil Rights Act of 1866 and of the Fourteenth Amendment, which suggest die framers of those Acts did not expect them to legalize racial intermarriage. Scalia-style originalists and textualists, however, should reject the use of any legislative history as a tool in statutory or constitutional interpretation. Originalists believe that it is die original public meaning of the words of a legal text that govern and not the subjective spin put on that text by members of Congress in die legislative history.11 In other words, Scalia-style originalists should not concern themselves with original intent.

In our view, originalists tiiink that lawmaking in a democracy is a public act whereby the American people, their representatives in die two houses of Congress, and die President all agree on a text, and it is diat agreed upon text which becomes die law. …

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