« William Baude: Severability First Principles
Michael Ramsey
| Main | Josh Blackman on Last Week's Supreme Court Decisions
Michael Ramsey »

03/29/2022

Problems With Vermeule, Part 6: Dworkin, the Level of Generality Problem, and the Fourteenth Amendment
Chris Green

(For parts 1, 2, 3, 4, and 5, see here and here and here and here and here.)

The bulk of Vermeule’s attack on originalism is simply reliance on Ronald Dworkin’s 1990 response to Robert Bork’s Tempting of America, which Vermeule thinks “has never been successfully answered” (p. 95). Dworkin asked at what level of generality originalists should read the Fourteenth Amendment’s paradigm case of the constitutionalization of the Civil Rights Act of 1866. Should we read “deny to any person within its jurisdiction the equal protection of the laws” to cover (1) merely the specific rights in the Civil Rights Act of 1866, (2) other aspects of equality for African Americans in cases like Brown, (3) affirmative action in cases like Richmond v. Croson, or (4) equality more generally?

The level-of-generality complaint is a problem for those who look to history to resolve constitutional applications in a way that will be binding on interpreters. But for textualist originalists, who look not only to applications but instead to the meaning expressed by the text in its original context, the level-of-generality question has a simple answer: read original history at the level of generality expressed in the constitutional text.  Read history neither too narrowly (forbidding any departure from original applications) nor too broadly (tying ourselves only to original goals and purposes). The concepts expressed in the Constitution itself are the key.

This answer will only work, alas, if one is looking at the right piece of constitutional text. Dworkin argues that the word “equal” in the Equal Protection Clause cannot resolve which of Bork’s list of four is the right reading, and that only moral considerations could do the job. Dworkin ends his discussion at page 674 with some unintentionally prophetic words: “Some other conservative legal scholar might succeed further with the idea of an original understanding than Bork has. But until someone does we are entitled, on the evidence of this book, to store the theory away with phlogistonism and the bogeyman.”

As it happens, just two years later after Dworkin wrote this, John Harrison published his work on the Privileges or Immunities Clause. Since then, scholars of the original meaning of the Fourteenth Amendment have increasingly argued that equality doctrine should be seen in terms of the equal citizenship of all American citizens, rather than “protection of the laws,” which Blackstone, Marbury v. Madison, and many other sources define as the right to protection from violence and the right to a remedy, rather than civil rights generally. While my articles (see here and here) have had some influence, I am far from alone; both Ilan Wurman and Randy Barnett and Evan Bernick’s books from last year take this view of the “equal protection of the laws.”

If Harrison, Wurman, Barnett, Bernick and I are right, Bork and Dworkin were simply asking the wrong question in 1990, and Vermeule is asking the wrong question today. The Equal Protection Clause covers only equality with respect to “protection of the laws,” not equality even with respect to what Bork and Dworkin thought was the floor, the right to contract. It was instead the Privileges or Immunities Clause that constitutionalized the Civil Rights Act of 1866. We must look at the meaning expressed by entirely different words to know what sorts of laws count as abridgements of the privileges or immunities of American citizens. Whether and how it would apply to affirmative action, for instance, would turn in part on the equal-privileges state-constitutional background, which applied to unjustified special benefits given to a single citizen, not just to burdens on “discrete and insular minorities” as in Carolene Products footnote 4. (See here at 137-38.) The details themselves, however, are not my chief point, so much as Vermeule’s complete lack of attention to them.

Dworkin himself could be forgiven, of course, for failing to anticipate in 1990 the burst of Fourteenth Amendment scholarship that would soon come onto the scene; he was not a Fourteenth Amendment specialist. But to continue to cite Dworkin’s 1990 piece as the last word on constitutional equality is not the mark of serious concern about our actual Fourteenth Amendment.