Equal Protection And Original Intent

For an extraordinarily high level and civil debate over equal protection and original intent, take a look at this series of exchanges between Prof. Stephen Presser of the Northwestern law school and Prof. Samuel Marcosson of the University of Louisville.

My sympathies are with Prof. Presser, but as I’ve stated here many times (such as here, here, and here), one cannot be a pure originalist, at least not of the “original intent” variety (original meaning is a different matter, as discussed here) and at the same time believe that the 14th Amendment’s Equal Protection Clause embodies a requirement of neutral colorblindness. In the fight over the form the 14th Amendment would take, the Radical Republicans such as Wendell Philips who wanted a clear requirement of colorblindness were defeated by the “moderates’ who wanted to protect the ability to engage in discrimination, such as segregating schools, that they thought reasonable. How ironic that the heirs of those dead moderates are today’s preferentialists, who must defend Plessy in order to justify preferences. Nevertheless, I think Prof. Marcosson succeeds in scoring some points in this regard against Justice Thomas as a sometime originalist.

It is clear that Marcosson thinks Brown was correctly decided, but, since he denies that the Equal Protection Clause requires colorbind treatment, it’s not clear why. Moreover, since he is at great pains to argue that the Supreme Court can amend the Constitution as and when it sees fit, he would seem to be at a loss to offer a principled objection if the Warren court had, instead, reaffirmed Plessy.

Over the past generation liberals — like their forebears, the Reconstruction “moderates” — abandoned the principle of colorblindness in order to justify discrimination that they deem reasonable. When, predictably, a future Court has different ideas about reasonableness, they can hardly be heard to complain.

UPDATE [8 January 1:30PM]

The final exchanges between Professors Presser and Marcosson, which appeared after my post, reinforce my suggestion that you go read the whole thing. You would be hard put to find a more eloquent, incisive, civil debate between advocates for a “living” and a dead Constitution (though I hasten to add that I don’t presume to claim that Prof. Presser himself would say that the Constitution he defends is dead. His essential point is that it cannot, or should not, be amended by the living (which includes most current Supreme Court justices) except as provided for in Article V.)

As I mentioned originally, Prof. Marcosson scores some points early on against Justice Thomas, and at least indirectly against Prof. Presser insofar as the defends Thomas. The most recent exchanges, however, reveal quite clearly (at least to me) the deeply troubling aspects of Prof. Marcosson’s approach.

It may be overreaching a bit to say that Prof. Marcosson approves of the Supreme Court “transforming” the Constitution, i.e., amending it, when he approves of the outcome, but not when he doesn’t. But I don’t think it is. You decide. The following is from his Jan. 7 8:23AM comment:

… to clarify what I like the Court to be doing, the “transformation” Justice Thomas sought to work in Hamdi did two very dangerous things: it usurped a clear, textual power of Congress (to suspend, or not, habeas corpus — Scalia’s point); and it abdicated the Judiciary’s own responsibility to determine whether the Executive branch has overstepped constitutional limits in executing the laws. If I’ve given indication that I approve of that, let me be clear: I don’t.

That sort of fundamental shifting of powers between the branches, which is both directly contrary to the existing text and allows government abuse of individual freedoms to go unchecked, requires Article V-style amendment if it’s going to happen at all. It bears no resemblance to the Court expanding the scope of the Constitution’s protections in cases like Brown or Lawrence or VMI.

So, Prof. Marcosson believes in the controlling power of clear text and “constitutional limits” to prevent the Court from reaching a result of which he disapproves. But text loses its clarity, or at least its power, and the Constitution sheds its limits whenever the Court wants to reach a result that he believes would result in “expanding the scope of the Constitution’s protections.”

Prof. Presser skewers Marcosson’s point very effectively in his Jan. 7 2:49PM reply:

You propose a standard, suggesting that the Court’s equal protection decisions (especially Brown, Loving, VMI, Lawrence) instead of rewriting the constitution, “made equal protection more real for more Americans through plausible transformative interpretation of the existing text.” You propose a “plausible transformative interpretation” standard for when constitutional amendment is OK, and a “fundamental alteration” standard for when it is not. Alas, one persons “plausible transformative interpretation” is another’s “fundamental alteration.”

Prof. Marcosson’s version of Constitutional interpretation is a nice variation on the venerable “civil liberties for our side only” approach to the First Amendment. It generously grants the Supreme Court the authority to amend the Constitution … so long as the amending is an expansion of rights. But if the Court has the power to expand rights, on the basis of what principle does it not also have the authority to constrict rights? And who’s to say what’s an expansion and what’s a constriction?

If the answer to that is “the people,” acting through the political process, then why not just stick with the official, already approved Article V procedures for amendments?