The Liberal Side of the Originalism Coin: Equal Protection of the Laws.
Equal then, equal now.
Brown v. Board of Education was Earl Warren’s judicial masterpiece. Over six decades later, it is easy to observe the decision as a foregone conclusion. After all, how could a nation so endowed with unalienable rights abridge blacks to attend the same schools as whites?
Yet Warren Court’s unanimous decision was shocking in 1954. The nine justices upset both tradition and precedent. For the 86 years between the ratification of the Fourteenth Amendment and the Brown decision, states were allowed to segregate on the basis of race. It was the Supreme Court itself that approbated “separate but equal” in the infamous Plessy case.
In Lovings v. Virginia, the Supreme Court secured the final nail in the coffin for white supremacy (or at least its legal face). Again, the Warren Court rejected longstanding tradition as a reason to uphold anti-miscegenation laws.
While the Warren Court is often characterized as a hallmark of judicial activism, I contend that both decisions were originalist.
Article VI of the Constitution provides that “The Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land.” Precedent matters, but not nearly enough to trump the clear words of the text. The same is true of tradition. Past practices may elucidate subjective areas of the Constitution at the time of adoption (e.g. the proscription of cruel and unusual punishments). It cannot, however, be itself the reigning paradigm of objective clauses (e.g. no laws prohibiting the free exercise of religion).
The Equal Protection Clause falls within the latter. Equal dictates the same principle in 2021 as it did in 1868.
The 14th Amendment pronounced that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” Its scope of protection goes beyond race and protects all “people.” The Equal Protection Clause, coupled with the 19th Amendment, should assuage the need for an Equal Rights Amendment! The Equal Protection Clause should be read as the ERA because it does not say “all male.” The drafters did not presuppose “people” to equivocate to only “men”, as Section 2 of the 14th Amendment makes specific references to “male inhabitants.” The drafters knowingly chose the word “people,” and the court should interpret it as such.
But even long proscribed behaviors, such as same-sex marriage, should also be guarded under the Equal Protection Clause. After all, gay or straight, the couples are certainly “people.” It is thus disturbing when the Supreme Court’s two leading originalists (Clarence Thomas and Antonin Scalia) dissented in the 2015 landmark decision of Obergefell v. Hodges. Unless the two justices were insinuating that gays were not people (which they don’t), it would be misguided to cast same-sex couples as outside the scope of the 14th Amendment. Sure, the society in 1868 may frown upon such a development, but so would they upon racial integration in 1954 and interracial marriage in 1967. The feelings of past generations are no more a justification for segregation than it is for marriage inequality.
Thankfully, Justice Kennedy’s deciding vote saved the court from another Plessy.
There are areas where the courts have not upheld the plain text of the Equal Protection Clause. I thought the court erred heavily in Rucho v. Common Cause when it declined to correct two invidious gerrymandering plans that tilted the electoral maps heavily in favor of sitting parties (one favored Democrats and the other indulged Republicans). There is a profound violation of equal rights when a state legislature draws an electoral map that discounts a vote’s weight based on the voter’s political leanings. I concede that gerrymandering has been a long political tradition of this country. The court, however, must enforce the Constitution above convention.
America in 1868 moved towards realizing an equal society with the 14th Amendment. It would be unfaithful for us to disparage nascent developments as unprotected under our Constitution’s greatest project.