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Randy Barnett and Richard Primus Discuss Loving v. Virginia
Michael Ramsey

At SCOTUSblog, Andrew Hamm reports on a program at the Supreme Court Historical Society: Constitutional interpretation and Loving v. Virginia.  It begins: 

“How would each of you have decided Loving v. Virginia?”

Justice Ruth Bader Ginsburg put this question to scholars Richard Primus and Randy Barnett on Tuesday at the Supreme Court, interrupting their debate over modes of constitutional interpretation. According to Jennifer Lowe, the director of programs at the Supreme Court Historical Society, it’s the first time a justice has spoken up at one of these events.

Loving is a 1967 decision in which the Supreme Court held that Virginia’s anti-miscegenation law violated the equal protection clause of the 14th Amendment. Ginsburg has called Loving “one of the most important decisions” in history, “as important, if not more important, than Brown v. Board of Education,” “the one that, more than anything else, was meant to end apartheid in America.”

On Professor Barnett's response: 

For his part, Barnett defended public-meaning originalism, the theory that “the meaning of the text of the Constitution should remain the same until it’s properly changed by amendment.” He contrasted his approach with other theories of originalism based on the framers’ intentions for a particular amendment or on expectations by the public for how an amendment would be applied. Public-meaning originalism requires extensive historical investigation, but not, unlike other types of originalism, “impossible” counter-factual inquiries.

Barnett criticized Primus’ response to Ginsburg’s question. “I think on Richard’s approach, it’s very difficult to know why Loving wouldn’t have come out the other way before Brown.” “Without Brown being decided, then Loving is obviously wrong,” Barnett continued, because “legal practice and precedent said [Virginia’s law] was constitutional and so it must have been constitutional.”

Under Primus’ approach, Barnett suggested, anti-miscegenation laws “only became unconstitutional … 13 years after 1954,” when Brown was decided. But “if Loving is correctly decided, as it clearly is, in my view,” Barnett argued, “it’s because it was unconstitutional the day the 14th Amendment was enacted,” in 1868.

“Just because people back then didn’t think it was irrational” for a state to pass anti-miscegenation laws, Barnett continued, “doesn’t mean that it was rational” under the actual text of the 14th Amendment. “That was true in 1868 and it was true all the way through,” Barnett said; “it’s only people’s opinions about whether it was irrational that have changed, not the Constitution itself.”

And further:

Throughout the debate, Barnett attempted to distinguish between interpretation and application. “People make mistakes in the application phase,” and “it’s entirely possible for judges to be wrong,” even for decades. “Mostly what courts do,” Barnett had explained earlier, “is apply the doctrines they’ve developed in the past to implement the meaning of the text.” “That is your true living Constitution,” Barnett said, employing a term often used in contrast with originalism, “the living Constitution is how doctrines that have been developed to implement the Constitution have evolved over time.” “They’re only to be reconsidered,” he asserted, “if it’s established that they are somehow undercutting or inconsistent with or not faithful to both the letter and the spirit of the original Constitution.”

Barnett called for “an intellectual division of labor” between historians and judges. It’s “not realistic” that judges do the historical research required under public-meaning originalism, which should be accomplished by historians from law schools, history departments and outside the academy. Barnett noted that “in major cases that have been decided in the last five or 10 years that concern the original meaning of the Second Amendment, the right to keep and bear arms, and the original meaning of the recess appointments clause, justices don’t have to originate their own research. They rely on research that’s been done by others.”

(Thanks to Mark Pulliam for the pointer).