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Jonathan Mitchell: Textualism and the Fourteenth Amendment
Michael Ramsey

Jonathan F. Mitchell (Stanford Law School) has posted Textualism and the Fourteenth Amendment (69 Stan. L. Rev. 1237 (2017)) on SSRN.  Here is the abstract:

Modern Fourteenth Amendment doctrine is difficult to square with constitutional text. The text of the Equal Protection Clause, for example, makes no distinction between racial classifications and other discriminatory practices; it requires equal protection of the laws for every “person” within a state’s jurisdiction. Nor does the text require equal treatment or equal rights; it requires equality only in the “protection of the laws.” Yet the Supreme Court assumes that the Equal Protection Clause is implicated whenever a state treats people differently—without pausing to ask whether the state has withheld the equal “protection of the laws.” And the Court has created a textually unsupportable distinction between racial discrimination, which it subjects to “strict scrutiny,” and other discriminatory practices that receive “rational basis review.”

Yet textualism has been enjoying a resurgence in both constitutional and statutory interpretation. This resurgence raises two questions for the Court’s equality doctrines. The first is whether those who embrace textualism must reject the Court’s equality jurisprudence as textually illegitimate. The second is whether those who embrace the Supreme Court’s landmark equality pronouncements must reject textualism as incompatible with those rulings. The answer to both questions is no. Almost all of the Supreme Court’s canonical racial-equality decisions have a firm textual foundation in congressional civil rights legislation—a fact that the Supreme Court has all but ignored by insisting on grounding its equality pronouncements exclusively in the Equal Protection Clause. And Congress enacted most of these civil rights statutes before the Supreme Court invoked the Equal Protection Clause to declare a discriminatory practice unconstitutional. So these civil rights statutes can and should be used to supply textual support for the Court’s decisions and doctrines, especially in cases where the Equal Protection Clause and other constitutional provisions are textually ill suited for the task.

A lengthy, interesting and challenging article that is somewhat undersold by the abstract.  For example, here is the discussion of Plessy v. Ferguson (extensive footnotes omitted):

Plessy v. Ferguson is regarded as one of the great antiprecedents in Supreme Court history—and deservedly so. The Court’s reasoning was shoddy, its efforts to pooh-pooh the stigmatizing effects of racial segregation seem shockingly naive to modern readers, and the concept of “separate but equal” was thoroughly discredited in the school-segregation cases. Today no one attempts to defend Plessy, and the ruling is universally regarded as abhorrent from the standpoint of morality and justice. But most constitutional theories have a difficult time explaining why Plessy was wrong as a matter of law.

Common law constitutionalism, for example, has attempted to justify the Court’s evolution from Plessy to Brown by relying on post-Plessy precedents that showed how “separate but equal” was unworkable. But that does not explain why Plessy was wrong on the day it was decided. There was no body of precedent at the time of Plessy that had undercut the “separate but equal” idea. And the overwhelming majority of pre-Plessy court decisions had upheld school segregation and antimiscegenation laws. The Plessy Court relied heavily on these pro-segregation precedents, and it distinguished Strauder and Yick Wo v. Hopkins as cases involving racial exclusions rather than racial separation. Plessy was very much a precedent-based decision that employed common law reasoning—and the precedent existing at the time seemed to support what the Court did.

 Legalistic theories of constitutional interpretation also struggle to explain why Plessy was wrong. Originalists must confront a mountain of evidence that the Fourteenth Amendment was not originally understood to prohibit racial segregation. And it is hard to get a self-executing prohibition on racial segregation out of the Amendment’s text. One could plausibly argue that a state would violate the Equal Protection Clause if it allowed railroads to exclude blacks, because the common law requires common carriers to serve all comers on reasonable and nondiscriminatory terms, and a state that withholds this common law protection from blacks while extending it to whites is failing to enforce this common law protection in an evenhanded fashion. But it is harder to make out an equal protection claim when a state requires its railroads to accept blacks and whites but seat them in separate coaches. One can grant that segregated coaches are stigmatizing and inherently unequal—but how does that deny the equal protection of the laws? The Louisiana Separate Car Act purported to protect blacks and whites equally, by protecting all passengers from having members of other races sit in their coach. Absent evidence that Louisiana was selectively enforcing its segregation statute, it is hard to accuse the state of withholding legal “protections” in a discriminatory manner.

The reason Plessy was legally wrong—rather than just a missed opportunity for the Supreme Court to impose its vision of a better society—is that the Civil Rights Act of 1875 preempted the Louisiana Separate Car Act. The Civil Rights Act commanded that persons in the United States

shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

And the statute imposed civil and criminal liability on those who

deny[] to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial.

The Louisiana statute required what this federal statute forbade. It compelled railway companies to “provide equal but separate accommodations for the white, and colored races.” But telling black passengers that they cannot sit in coaches reserved for white passengers is not “full and equal enjoyment” of the railroad’s accommodations. And a law that instructs white passengers to sit in one coach and black passengers in another is not a condition or limitation “applicable alike to citizens of every race and color.”

Of course, the Civil Rights Cases had declared these federal statutory provisions unconstitutional, holding that Congress cannot regulate private sector discrimination under the Fourteenth Amendment unless the discrimination is “sanctioned in some way by the State” or “done under State authority.”  But that holding was inapplicable to the situation in Plessy, where the plaintiff had challenged a state law that mandated racial segregation on railway carriages. Louisiana’s Separate Car Act was undoubtedly state action, and it was governed by the Civil Rights Act of 1875—even after the Civil Rights Cases had immunized purely private discrimination from congressional enforcement legislation.

The Plessy Court acted as though the Civil Rights Cases had wiped these federal statutes off the books, as if the Supreme Court wields a writ of erasure that blots out unconstitutional legislation. The Supreme Court has no such power. Judicial review means only that the Court may decline to enforce a federal statute in a particular case—if (and only if) the Court concludes that enforcing the statute would conflict with its paramount duty to obey the Constitution. But federal statutes that the Supreme Court has declared “unconstitutional” remain laws until Congress repeals them, and the Court must enforce those laws when it can do so consistent with the Constitution. The Civil Rights Act of 1875 remained valid and enforceable as applied to state action—and it preempted Louisiana’s segregation statute.

Finally, the Citizenship Clause is what authorized Congress to preempt the Louisiana Separate Car Act. Relying on the Equal Protection Clause to support the Civil Rights Act of 1875 is a tough sell for two reasons. First, Louisiana’s law purported to impose equal burdens on white and black passengers, and there is no evidence that Louisiana was enforcing its law in an inconsistent or selective manner. Second, the seating arrangements in railroad cars do not involve discriminatory protection of the state’s laws. The problem with legally mandated racial segregation is not that it withholds legal “protections” from railroad passengers, but that it marks racial minorities as second-class citizens unworthy to sit or associate with whites. The Citizenship Clause authorizes Congress to preempt caste legislation of that sort—and Congress did exactly that in the Civil Rights Act of 1875.