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Originalist Perspectives on Bolling v. Sharpe
Michael Ramsey

At Ius & Iustitium, Cass Sunstein (Harvard): The Enigma of Bolling v. Sharpe.  From the introduction (footnotes omitted): 

For constitutional theory, Bolling v. Sharpe has always been a bit of a puzzle, but it is suddenly much more than that. In Bolling, the Supreme Court held that the Due Process Clause of the Fifth Amendment forbids Congress from segregating the schools in the District of Columbia. That holding is important in itself. Actually, it is much more than important in itself, because it is the source of the broad idea that the national government may not engage in racial discrimination. But Bolling is important as the foundation of an even broader idea, which is that principles of equal protection generally apply to the national government. Because the Equal Protection Clause can be found in the Fourteenth Amendment, and not the Fifth, we have to do considerable work to generate a theory to make sense of Bolling. In Bolling, the Court itself offered some of the essential ingredients of such a theory (as we shall see).

In Dobbs v. Jackson Women’s Health Center, the Court cut the legs out from under Bolling. In essence, the Court held that to qualify for protection under the Due Process Clause of the Fourteenth Amendment, a litigant must show that the relevant right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” It is exceedingly hard to show that a right to be free from segregation qualifies under this test – not least because segregation was required by the Black Codes, enacted throughout the South in the 1860s, and because the Supreme Court upheld segregation in 1896 and did not strike it down until 1954 (under the Equal Protection Clause). Racial segregation was both practice and permissible for about a century. Insofar as we are speaking of the Due Process Clause of the Fifth Amendment, the idea of a right to be free from racial segregation stands, under the Dobbs approach, on very shaky ground. In fact it is worse than that. For the approach in BollingDobbs is an earthquake. ...

Despite the alarmed tone and extensive discussion, I don't think there's really much new here.  Originalists have long understood (and been worried by) the fact that Bolling is a tenuous case as a matter of original meaning.  In addition to the problems Professor Sunstein notes, I think more serious ones are (1) I don't know of any evidence that anyone in 1791 might have thought the 5th Amendment's due process clause contained a substantive guarantee of equality, and (2) if the due process protection contains a guarantee of equal treatment, then the equal protection clause (assuming it is a guarantee of equal treatment, as modern law understands it) is superfluous.

But originalists are not without responses.  There are at least four:

(1) Bolling was wrongly decided and should be overruled.  If that outcome is morally intolerable (and I agree with Professor Sunstein that it should be) then the Constitution can be amended to change it, just as the Thirteenth Amendment changed the original Constitution's morally intolerable failure to proscribe slavery.  Judges don't fix morally intolerable parts of the Constitution; amendments do.

(2)  Bolling would come out the other way on strictly originalist grounds, but originalism should accept an "escape clause" by which judges can refuse to enforce morally intolerable results in extreme cases.  The acceptance of an escape clause in extreme cases does not undermine the use of originalism in non-extreme cases.  (Justice Scalia acknowledged this possibility in his famous comment about being a "faint-hearted originalist"). In similar vein, even the strictest view of stare decisis would probably allow precedent to be overruled in extreme cases (such as Plessy v. Ferguson); that in itself does not undermine a general rule of strict adherence to precedent. (Note, though, that this approach indicates that judges in the antebellum period should have read the Constitution to invalidate slavery even though it didn't; I'm not sure how many people actually hold that view).

(3) Bolling was wrongly decided at the time it was decided, but it should not be overturned now as a matter of stare decisis.  It is well-integrated into the framework of U.S. law, is not seriously contested on moral or policy grounds by anyone, and does not create distortions or difficulty of administration.  (This is roughly the way Justice Scalia looked at it).  Further, borrowing from John McGinnis and Mike Rappaport, it's very likely that if Bolling had been decided the other way, that result would have been overturned by constitutional amendment.  Thus overturning it now, and forcing an unnecessary amendment process, would be a pointless exercise.

(4) Bolling was wrongly reasoned but its result can be reached on other originalist grounds.  Professor Sunstein alludes to this position, citing Ryan Williams, Originalism and the Other Desegregation Decision, 99 Va. L. Rev 493 (2013) (arguing that the requirement of equal treatment by the federal government comes from the Fourteenth Amendment's citizenship clause).  As Professor Sunstein does not mention, Justice Thomas endorsed this position in a long concurrence in United States v. Vaello Madero, relying heavily on Professor Williams' article.  

I don't have an opinion on which is best.  I have a very high degree of confidence that most current originalist-oriented Justices would pick (3), with one or two picking (4) and none picking (1).  So it's really an academic question.  But I like those.

(Via Jonathan Adler at Volokh Conspiracy, who encourages originalists' thoughts on the matter).