Ryan Williams: Originalism and the Other Desegregation Decision
Ryan C. Williams (University of Pennsylvania Law School) has posted Originalism and the Other Desegregation Decision (Virginia Law Review, forthcoming) on SSRN. Here is the abstract:
Critics of originalist approaches to constitutional interpretation often focus on the “intolerable” results that originalism would purportedly require. Although originalists have disputed many such claims, one contention that they have been famously unable to answer satisfactorily is the claim that their theory is incapable of justifying the Supreme Court’s famous 1954 decision in Bolling v. Sharpe. Decided the same day as Brown v. Board of Education, Bolling is the case that is most closely associated with the Supreme Court’s so-called “reverse incorporation” doctrine, which interprets the Due Process Clause of the Fifth Amendment as if it effectively "incorporates" the Fourteenth Amendment's Equal Protection Clause against the federal government. The presumed inability of originalism to justify Bolling and reverse incorporation has left originalists open to the charge that their theory would leave the federal government with unfettered discretion to discriminate against racial minorities or anyone else it chooses.
This article challenges the conventional wisdom regarding Bolling’s assumed originalist indefensibility by recovering the original meaning of the Fourteenth Amendment’s Citizenship Clause, which declares all persons born or naturalized in the United States and subject to its jurisdiction to be citizens of the United States. Although sometimes viewed by modern commentators as an inconsequential “afterthought,” this article contends that the Citizenship Clause was widely perceived by members of the enacting generation as a central focus of the Fourteenth Amendment’s Section One and that the provision constitutionalized a longstanding American political and legal tradition linking the status of “citizenship” with the entitlement to equal treatment at the hands of government. Drawing on pre-Fourteenth Amendment understandings of “citizenship,” and the conceptions of citizenship reflected in the framing and ratification debates and in early interpretations of the Amendment, this article contends that the Citizenship Clause provides a historically and textually defensible basis for a legally enforceable equality guarantee applicable to federal conduct that is at least as broad as the equality guarantee made applicable to the states by the Equal Protection Clause.
Via Larry Solum at Legal Theory Blog, who says "Highly recommended. Download it while it's hot!"