This article makes an originalist argument in defense of the Supreme Court’s holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi’s work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving is a classic conflict between text and legislative history.

I am taking a look at this, and seeing how it ties into his work on gender discrimination.

McConnell evidently feels that there are just too many statements in the congressional legislative history from the 1860’s and 1870’s in support of laws banning racial intermarriage for Loving v. Virginia to be defensible on originalist grounds. McConnell undoubtedly thinks Loving is right as a matter of policy and that it ought never to be overruled, but he is unable to say he would have joined the opinion when it was first handed down in 1967.

We think the conventional wisdom on Originalism and Loving is totally wrong! In fact, we think that a proper application of Scalia-style originalism and textualism leads rather easily to the conclusion that Loving was rightly decided. The mistake Scalia’s critics make is that they rely exclusively on the statements made in the legislative history of the Civil Rights Act of 1866 and of the Fourteenth Amendment, which suggest the Framers of those Acts did not expect them to legalize racial intermarriage. Scalia-style originalists and textualists, however, should reject the use of any legislative history as a tool in statutory or constitutional interpretation. Originalists believe that it is the original public meaning of the words of a legal text that govern and not the subjective spin put on that text by members of Congress in the legislative history. In other words, Scalia-style originalists should not concern themselves with original intent.

Originalists think that lawmaking in a democracy is a public act whereby the American people, their representatives in the two houses of Congress, and the President all agree on a text, and it is that agreed upon text which becomes the law. Isolated comments by representatives and senators involved in the bill drafting process are not law nor are they reliable guides to what is the law. Such comments do not pass the hurdle of bicameralism and presentment set out in Article I, Section 7, and they are often spin that reflects either wishful thinking by those making the statements or possibly even inaccurate personal views about what a prospective law actually means

I agree about the use of legislative history in both statutory and constitutional interpretation (I think this  is something originalists by-and-large have ignored). Though, in light of Calabresi’s previous work, relying heavily on these statements, I am confused. Here, they reject all legislative history statements, though he and Rickert rely heavily on the statements surrounding the 14th and 19th Amendments to make their case. I am not familiar with Matthews’s work, but Calabresi relies HEAVILY on such statements made in the drafting process elsewhere. This is disconcerting.

And this paragraph, really troubles me–because the changes meaning of factual predicates is the core of their article:

Suppose Congress passed a statute that said the colors of the American flag were to be red, white, and blue, but that many statements in the congressional record indicate that important Members of Congress understood the word “blue” to mean “green.” Suppose further that the public understood the word “blue” to mean “blue” in accordance with its commonly accepted public meaning. The color of the flag in this case would be red, white, and blue notwithstanding Congress’s intent that “blue” actually means “green.” We are governed by the formal legal texts that Congress enacts into law and not by the un-enacted intentions of the Members of Congress who wrote those texts. For the same reason, we are governed by the laws our ancestors made during Reconstruction and not by their un-enacted intentions or expectations when they made those laws.

I really hoep this is an early draft.

I’m still waiting for an originalist defense of Bolling v. Sharpe. Maybe that’s next?