Originalist Judges Have a Problem With Equality

(Bloomberg Opinion) -- Some legal scholars, and some judges, are “originalists”; they believe that judges should be governed by the “original public meaning” of the Constitution's text. The late Justice Antonin Scalia was an originalist. So is Justice Clarence Thomas. And so is the latest Supreme Court nominee, Judge Amy Coney Barrett.

Debates about originalism have become complicated. But one point is simple: A committed originalist is going to have to allow the national government to discriminate on the basis of sex and race.

Let's spell that out. Judges who are committed to the “original public meaning” of the Constitution would almost certainly have to allow the federal government to say, “No women need apply.” They would probably have to conclude that if Congress wants federal agencies to pay men twice as much as women, the Constitution does not stand in the way.

Originalist judges would find it exceedingly difficult not to rule that under the Constitution, Congress can segregate the schools in the District of Columbia. Originalist judges would probably have to conclude that if Congress wants to restrict African-Americans to lower-level positions within the federal government, the Constitution is not an obstacle.

On originalist premises, a “whites only” policy would be constitutionally fine, insofar as we are speaking of the decisions of the U.S. government.

Here's why. The Equal Protection Clause of the 14th Amendment, adopted in the aftermath of the Civil War, applies only to the states, which may not “deny to any person within its jurisdiction the equal protection of the laws." The Bill of Rights, which does apply to the federal government, does not contain anything like an Equal Protection Clause, or any kind of ban on discrimination on the basis of race or sex.

Why, then, is it generally agreed that the Constitution forbids the federal government from discriminating on those grounds? The answer can be found in 1954, with one of the most emphatically non-originalist decisions in the entire history of American law: Bolling v. Sharpe.

The issue in the case was whether Congress could segregate the schools of the District of Columbia on the basis of race. The Supreme Court ruled that it could not. It said that the Due Process Clause of the Fifth Amendment — ratified in 1791 and applying then only to the federal government — essentially includes the Equal Protection Clause, ratified in 1868. So much for originalism.

The Court's explanation is worth quoting:   

The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and therefore we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.

From the originalist point of view, that's outrageous. The Due Process Clause of the Fifth Amendment says that no person shall “be deprived of life, liberty, or property, without due process of law.” It is preposterous to say that the original meaning of those words — in 1791! — was that the national government may not discriminate on the basis of race.

In Bolling v. Sharpe, the Supreme Court insisted that the meaning of the Constitution is not frozen in time: “In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”

Seeing the problem, originalists have struggled mightily, and somewhat desperately, to explain why their approach would not allow the national government to discriminate on the basis of race and sex.

Some originalists say that they would accept Supreme Court precedents, even if they depart from the original understanding. They emphasize the importance of stability in the law and point to the long-standing tradition of respect for precedents, even when they are wrong.

Thomas disagrees; he would follow the original meaning and reject precedents that depart from it. Barrett has not offered a firm view, but she seems to have some sympathy for Thomas's position: “Originalists,” she wrote in 2017, “have difficulty identifying a principled justification for following such precedent, even when the consequences of overruling it would be extraordinarily disruptive.”

There is a broader point here. Many people find it appealing to say that judges should respect the original meaning of the Constitution. No one should want to be ruled by unelected judges. There are sophisticated forms of originalism, and they deserve to be taken seriously.

But in too many cases, originalists end up speaking not for the founding generation, but for contemporary political views typically associated with the Republican Party — on property rights, on commercial advertising, on affirmative action programs, on gun rights, and much more.

In any case, the Constitution does not contain the instructions for its own interpretation. No provision of the U.S. founding document directs justices to be originalists. And in important areas, insistence on the original meaning of the constitutional text would make a mockery of constitutional rights that have made the U.S. a beacon to the world. For example, originalism would obliterate freedom of speech as the American legal system now understands it.

If it is taken seriously, originalism would produce large-scale changes in constitutional understandings. Licensing the federal government to discriminate on the basis of race and sex would be a mere start.

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

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