Bench Memos

Originalism and Loving v. Virginia

Conventional thinking in the legal academy holds that the Supreme Court’s 1967 ruling in Loving v. Virginia, striking down laws against interracial marriage, can’t be reconciled with an originalist reading of the 14th Amendment. In “Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause,” University of Dallas professor of politics David Upham contests that conventional thinking. Here is his summary of his paper:

This study considers substantial historical evidence, much of which has not been addressed by contemporary legal scholars, and challenges the widespread belief that the authors of the Fourteenth Amendment did not expect it would adversely affect “anti-miscegenation” (or racial-endogamy) laws.

This study proves, by a strong preponderance of the evidence, that the Fourteenth Amendment, as understood by the officials that proposed, ratified, and initially interpreted it, precluded the making or enforcing of racial-endogamy laws, insofar as such laws prohibited or invalidated interracial marriages between citizens of the United States.

In particular, this study concludes: (1) that before the Fourteenth Amendment, most authorities agreed that racial-endogamy laws abridged a pre-existing, common-law right, which right represented a privilege of citizenship; (2) that during the adoption of the Amendment, both proponents and opponents generally declared, acknowledged, or conspicuously failed to deny, that the Amendment would invalidate such laws; (3) that within five years of the Amendments’ adoption, on the eve of the Slaughter-House Cases, such laws were either non-existent or unenforced in a clear majority of the states, in large part because Republican officials — including nearly every Republican judge to face the question — concluded that African Americans’ entitlement to the status and privileges of citizenship precluded the making or enforcing of such laws; and (4) that the contrary holdings were made by Democratic judges hostile to Reconstruction, whose hostility was manifest in their implausible interpretation of the Amendment. The study ends with a reflection on how the Slaughter-House Cases facilitated the rejection of the original understanding, and thus the partial nullification of the Fourteenth Amendment through the renewed making and enforcing of racial-endogamy laws.

(I haven’t had time to study Upham’s paper, and am in no position to offer a bottom line on its conclusions, but it certainly ought to warrant careful consideration by those who have argued or assumed the opposite.)

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