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Starkey on Originalism & Equal Protection

By Larry Solum

Brando Simeo Starkey (Harvard Law School) has posted <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1579197">Inconsistent Originalism and the Need for Equal Protection Re-Invigoration</a> (Georgetown Journal of Law & Modern Critical Race Perspectives, Forthcoming) on SSRN. Here is the abstract:<ul> After Washington v. Davis, the Equal Protection Clause, as in Plessy v. Ferguson, was interpreted to prevent racial justice for communities of color. The Davis Court announced the intent doctrine; that the Equal Protection Clause only protects those discriminated against pursuant to a discriminatory motive. But as Charles Lawrence announced in his piece entitled The Id, The Ego, and Equal Protection, discrimination is frequently the result of an unconscious mind. By focusing on a motive inquiry, moreover, courts limit remedy to the most overt of discriminatory acts. The evidentiary burden is too high. With the Equal Protection Clause no longer an effective tool for stigmatized minorities, it needs to be re-invigorated to further racial equality. <br /><br /> Those seeking to overturn Davis must, though, grapple with the reality that the original public understanding of the Equal Protection Clause does not render discriminatory acts resulting from unconscious bias unconstitutional. I argue that the Fourteenth Amendment's original understanding is an anachronism and the future of the intent doctrine must not hinge on the ratifying generation's formulation. Originalists implicitly agree with this contention. Indeed, Originalists' equal protection opinions, particularly involving affirmative action, confound anyone with a basic knowledge of the Fourteenth Amendment's legislative history. Originalists best establish how much the original understanding of the Fourteenth Amendment is unhelpful in dealing with contemporary race issues. The Equal Protection Clause, I argue, must be re-invigorated so that its new understanding reflects both our deepening knowledge of unconscious bias and our appreciation for how a discriminatory motive can be easily hidden.</ul> <span href="http://" style="color: #0000bf; "><strong>And from the text:</strong></span><ul> Generally speaking, there are two22 main strains of Originalism. The first, the "intent strain," now disrepute,23 implores judges to follow the specific will of the Constitution's drafters. Robert Bork and Raoul Berger, responding to the considered Warren Court's constitutional activism, developed this strain in the 1970s.24 Berger, the late legal scholar,25 argued that courts were not to act as a reoccurring Constitutional conventions, but, instead, as a locus where judges carried out the framers' intent.26 This brand of Originalism insists that constitutional interpretive questions turn on the will of the framers. Nothing else is important.27<br /><br /> By the mid 1980's, the intent strain was deeply criticized and a second strain emerged, what I will call the "understanding strain."28 Bork himself espoused the shift, relaying that his previous references to the ratifier's understanding was merely "a shorthand formulation" for original public meaning.29 This strain instructs jurists to search for the original understanding of the Constitution. Bork states that originalism now means "seeking ... the objective meaning that constitutional language had when it was adopted."30 Jamal Greene supplies a definition in this mold characterizing it as "the normative constitutional interpretive theory that instructs judges faced with indeterminate textual guidance to look primarily to the original understanding of a particular clause's ratifying generation."31 The second strain appears to have won out.32</ul> <span style="color: #0000bf; "><strong>I enjoyed this interesting piece, but it's exposition of originalism does (by my lights) capture the content of contemporary originalist theory (the so-called "new originalism" or "original public meaning originalism"). In particular, the author might want to consider the distinction (original made by Mark Greenberg and emphasized by Jack Balkin) between original expected applications and the original public meaning of the constitutional text. </strong></span><p><font color="#0000BF"><strong>My take on contemporary originalist theory is found in <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244">Semantic Originalism</a>.</strong></font></p>

Full post as published by Legal Theory Blog on April 05, 2010 (boomark / email).