Loving v. VA & Originalism

A "This Day in Supreme Court History" post raised another debate about how Loving v. Virginia shows that originalism doesn't make sense. How could an opinion holding miscegnation laws unconstitutional stand up to original understanding? "It obviously doesn't! Slam! Originalists are so stupid!!"

(I put aside that Mildred Loving, at the end of her life, argued the principle of her case applied to same sex marriage. That is another use of her case!)

Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.

Originalism is a popular doctrine. It has rhetorical force. Liberals repeatedly argue a "true" understanding of history would lead to progressive results. Madison, for instance, is cited for purposes of separation of church and state. 

There are also a variety of types of originalism, which, like the sects of Christianity, share various tenets while leading people into different avenues are significant points. One version:

The best indicia of original public meaning comes from dictionaries and grammar books that are widely in use at the time a law is passed.  Newspaper editorials might also help recover the objective original public meaning of a newly enacted legal text. Senators and representatives involved in the drafting process, in contrast, will usually be unknown to the general public when an Act is passed and will therefore not be part of the original public meaning of the Act. 

This account argues that even the Federalist Papers might be "reassuring, mellifluous words," but "this does not mean the sponsors are being honest nor does the public necessarily assume that the sponsors are being honest."

The linked article argues that a certain form of originalism very well can be used to defend Loving v. Virginia. See also the article discussed here. 

The second article notes that many originalists disagree. The review at the link (from someone sympathetic to originalism) also argues that "far from clear that ordinary citizens" of the time would accept the argument.

Jack Balkin, a liberal constitutional professor who wrote about a liberal form of originalism, pushed back on the article:

But the fact that some anti-racist Republicans believed that the best construction of the Civil Rights Acts and the Fourteenth Amendment gave interracial couples a right to marry does not show that most, much less all, Republicans thought that this was the legal meaning of the Civil Rights Acts or the Fourteenth Amendment. It does not show that most of the Congressmen and Senators who voted for these Acts or the Fourteenth Amendment thought so. And it certainly does not show that most of the state legislators who were necessary to adopt the Fourteenth Amendment thought so. The claim that, in 1868, most of the people necessary for the passage and the adoption of the Fourteenth Amendment believed that the civil right to marry included the legal right to racial intermarriage is simply not supported by history.

(He also flags that the article supports Pace v. Alabama, a 1880 ruling that upholds a law that provides additional punishment for interraical fornication. Marriage is different! 

That is strange since the principle of the law -- see also, R.A.V. v. St. Paul -- should still be wrong.)  

A person in the blog post comments can allude to (addressed here) Reconstruction state court rulings that held that interracial marriage is protected by equal protection. The courts are all in reconstructed Southern states, so they would logically be Radical Republicans. Not proof of a median position. 

Meanwhile, an Indiana ruling went the other way, arguing that marriages were not the normal contracts involved in the Civil Rights Act of 1866 and so forth. Jack Balkin expands on that -- social rights were different. A view that changed over time. 

Once courts found that interracial marriage could be banned, the path was open to broadly uphold segregation laws. School segregation was necessary, allegedly, since once social race mixing started, it was just the path to perdition. Brown v. Board was an essential stepping stone to Loving. The Court did go carefully, not deciding the matter right away.

Common law constitutionalism, an approach that I think is the best one, accepts the development of the law over time. This applies to the development of the protection of interracial marriage. And, same sex marriage too, using broader principles of equality. The test, after all, is universal.

Loving possibly fitting within the broad contours of the Fourteenth Amendment does not mean that it seals the deal. Many things can meet that test. It is particularly silly to govern how we apply the Constitution today using "dictionaries and grammar books" from back in the day.  

A fair reading of common understanding probably would reasonably hold that the median position was originally that interracial marriage was not protected.  Things like removing a ban on interracial marriage in D.C. don't clinch the deal, especially when it is a war measure by a Congress stripped of most of its Southern members. And that was a law, not a constitutional decision. 

Loving itself reasonably noted:

As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources “cast some light” they are not sufficient to resolve the problem; “[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.’ Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.” 

A question left open by the evidence, or which can reasonably be applied, is of some interest. The Constitution should be reasonably applied, which involves a broad but not unlimited range of options. 

Joint decisions, including by multimember courts, will also result in compromises that seek to satisfy people with various ideological approaches. Finally, a full look at the history is informative. 

Those who strongly argue that it is silly to think originalism can support interracial marriage are somewhat overdoing it. The evidence is complicated. The road to support of interracial marriage bans and other bad stuff also does not merely turn one bad opinion (Slaughterhouse Cases). The development of the law over a hundred years was complex. 

And, then we are left with competing long articles on the details. The final answer remains elsewhere.