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Justice Thomas Says Reconsider Bolling v. Sharpe on Originalist Grounds
Michael Ramsey

As I noted yesterday, both Justice Thomas and Justice Gorsuch has interesting originalist concurrences in the Supreme Court's recent decision in United States v. Vaello Madero.  I discussed Justice Gorsuch's opinion in my prior post; here are a few words on Justice Thomas' concurrence.

Thomas' target is Bolling v. Sharpe, the companion case to Brown v. Board of Education that ruled segregation unconstitutional in the District of Columbia.  Thomas makes two points: (1) Bolling was wrong to find an equal treatment obligation on the federal government in the Fifth Amendment's due process clause; and (2) there (probably) is such an obligation from the citizenship clause of the Fourteenth Amendment.

As to the first point, he begins: 

Bolling’s locating of an equal protection guarantee in the Fifth Amendment’s Due Process Clause raises substantial questions. First, Bolling’s interpretation seemingly relies upon the Lochner-era theory that “unreasonable discrimination” is “a denial of due process of law.” 347 U. S., at 499 (citing Buchanan v. Warley, 245 U. S. 60 (1917)); see also 347 U. S., at 500 (“Segregation in public education is not reasonably related to any proper governmental objective” and therefore “constitutes an arbitrary deprivation of . . . liberty”); see Lochner v. New York, 198 U. S. 45 (1905). By invoking “due process” to hold an allegedly “unreasonable” or “arbitrary” legislative classification unconstitutional, Bolling made clear that it was applying this Court’s “substantive due process” doctrine. See N. Chapman & M. McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1800 (2012) (“[W]hen the Court purports to evaluate whether a state’s interest is ‘legitimate’ or a ‘justif[ied]’ interference with a judge-made liberty, the result is no different in principle than in other modern substantive due process cases”).

But “[t]he notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of
words.” McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment). Rather, “‘considerable historical evidence supports the position that “due process of law” was a separation-ofpowers concept designed as a safeguard against unlicensed executive action, forbidding only deprivations not authorized by legislation or common law.’” Johnson v. United States, 576 U. S. 591, 623 (2015) (THOMAS, J., concurring in judgment) (quoting D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789–1888, p. 272 (1985)); see also In re Winship, 397 U. S. 358, 378–382 (1970) (Black, J., dissenting). And, to the extent that the Due Process Clause restrains the authority of Congress, it may, at most, prohibit Congress from authorizing the deprivation of a person’s life, liberty, or property without providing him the “customary procedures to which freemen were entitled by the old law of England.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 28 (1991) (Scalia, J., concurring in judgment) (internal quotation marks omitted); see also Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856). Either way, the Fifth Amendment’s text and history provide little support for modern substantive due process doctrine.

And  further:

[A]lthough the Bolling Court claimed that its decision “d[id] not imply that [due process and equal protection] are always interchangeable phrases,” 347 U. S., at 499, its logic led this Court to later erase any distinction between them. We now maintain that the “equal protection obligations imposed by the Fifth and the Fourteenth Amendments [are] indistinguishable.” Adarand Constructors, Inc., 515 U. S., at 217; see also Sessions v. Morales-Santana, 582 U. S. ___, ___, n. 1 (2017) (slip op., at 2, n. 1). But if “due process of law” fully subsumed the guarantee of equal protection, it is unclear why §1 of the Fourteenth Amendment would redundantly state both requirements in consecutive Clauses. See, e.g., G. Maggs, Innovation in Constitutional Law, 86 Nw. U. L. Rev. 1038, 1053 (1992) (Maggs); R. Natelson, The Constitution and the Public Trust, 52 Buffalo L. Rev. 1077, 1174, n. 432 (2004); R. Primus, Bolling Alone, 104 Colum. L. Rev. 975, 976, n. 7 (2004).

On the second point: 

Even if the Due Process Clause has no equal protection component, the Constitution may still prohibit the Federal Government from discriminating on the basis of race, at least with respect to civil rights. While my conclusions remain tentative, I think that the textual source of that obligation may reside in the Fourteenth Amendment’s Citizenship Clause. That Clause provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Amdt. 14, §1, cl. 1. As I sketch out briefly below, considerable historical evidence suggests that the Citizenship Clause “was adopted against a longstanding political and legal tradition that closely associated the status of ‘citizenship’ with the entitlement to legal equality.” R. Williams, Originalism and the Other Desegregation Decision, 99 Va. L. Rev. 493, 501 (2013) (Williams); see also A. Amar, Intratextualism, 112 Harv. L. Rev. 747, 768–769 (1999). Thus, the Citizenship Clause could provide a firmer foundation for Bolling’s result than the Fifth Amendment’s Due Process Clause.

I think his first point is absolutely right.  Bolling is completely unpersuasive as an originalist matter.  The Bolling/Brown Justices wanted a particular result (because it would have been extremely awkward to order the South to desegregate and not order D.C. to do so).  They did not much care how they got to that result, and it shows.

Previously I've been skeptical of the second argument, but Justice Thomas makes a strong argument in the discussion that follows the introductory quote above.  In particular, it seems right to ask: what was the point of the Fourteenth Amendment's citizenship clause?  Obviously it was to overrule Dred Scott's indefensible holding that Americans of African descent could not be citizens.  But why did that matter so much?  Presumably the Amendment's framers did not really care whether Americans of African descent could bring diversity actions (the actual issue in Dred Scott).  They must have thought that being a U.S. citizen carried some important rights.  Perhaps those were just rights against the states -- but perhaps not; perhaps they did think (as Justice Thomas suggests) that being a U.S. citizen carries important rights, perhaps including the right of equal treatment, against the federal government as well.

As an aside, a noteworthy part of Justice Thomas' opinion is his engagement with academic originalist scholarship, including citations to originalist scholars too numerous to list. (I'll note though that he cites my colleague and co-blogger Michael Rappaport's article Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71 (2013)).