On Monday Justice Breyer and Justice Scalia held a discussion at the University. Check out my liveblog coverage here.

There was a bit of a kerfuffle when some journalist reported that Scalia would have dissented in Brown. This was false.

But Professor Balkin, in a very insightful post, posits that the greater conflict to originalist doctrine is not Brown, but Bolling v. Sharpe and Loving v. Virginia. Read the entire post, but here are some of the highlights:

Now that it is clear that Justice Scalia did not say that he would have dissented from Brown v. Board of Education, we can move on to the more genuinely interesting questions about Justice Scalia’s views on race, originalism, and the Constitution.

Justice Scalia is well known for being deeply committed to the colorblindness principle (except, of course, where the rights of prisoners are involved). As a result he strongly associates himself with Justice Harlan’s dissent in Plessy v. Ferguson, announcing that “Our Constitution is color-blind” and arguing that separate but equal facilities are unconstitutional (except, of course, prisons).

But even if Justice Scalia’s methodology gets him to Brown v. Board of Education, it does not really justify much of modern equal protection law, including positions for which he has been the most ardent proponent.

First, although it’s clear that Justice Scalia would not have upheld segregated schools in the states, it’s not clear that he would be able to strike down segregated schools in the District of Columbia. In particular, we don’t have a good sense of what Justice Scalia thinks of the originalist case for Bolling v. Sharpe, which held that the Due Process Clause of the Fifth Amendment, ratified in 1791, prohibits racial classifications by the federal government. Consider this: in 1791 black people were held in slavery. It’s hard to argue that this clause, interpreted according to the expectations of the late eighteenth century generation that framed it, prevents the federal government from engaging in racial discrimination. Moreover, Justice Scalia has long been an opponent of reading the Due Process Clause to have substantive content. If so, why isn’t Bolling v. Sharpe an impermissible form of substantive due process, as impermissible as, say, Roe v. Wade? If Justice Scalia believes that Bolling is correct, it can’t be because of his originalist views. Rather, it is, as he would say, a case where courts just made new rights up.

Even if, under Justice Scalia’s methodology, Brown is correctly decided, it’s hard to hold that Loving is. The generation that ratified the Fourteenth Amendment expected that laws banning interracial marriage and interracial sex would be constitutional.

Bolling v. Sharpe and Loving v. Virginia pose the real problems for Justice Scalia’s methodology when it comes to race. In public settings, people should stop asking him about Brown v. Board of Education. There are plenty of other difficulties with his theory of interpretation that he has yet to work out.

I have pondered Bolling and Loving at great length. There is no equal protection clause in the 5th Amendment. When I read Bolling in class, I remember raising my hand and asking where equal protection clause in the 5th amendment was. Crickets.

How can the federal government possibly be mandated to enforce equal protection under an originalist jurisprudence. Further, how can miscegenation ban in Bolling possibly be unconstitutional if it was a common at the time of Reconstruction. Professor McConnell’s arguments,justifying these cases from an Originalist perspective, are not persuasive to me. This is a gaping hole in Scalia’s jurisprudence. Balkin’s right. Scalia’s wrong.

Now, I think Balkin’s Constitution in 2020 Philosophy has more holes than a piece of swiss cheese. So on the aggregate, I’m more comfortable with Scalia’s philosophy which has a couple of big holes, than accepting Balkin’s philosophy which is mostly results oriented jurisprudence towards establishing a progressive society, as he sees fit.

No philosophy is perfect. I adopt the one that makes the most sense. While Originalism may be a 80% solution, the Constitution in 2020 maybe gets me 20%. I’ll take 80 or 20 any day.