David Upham on originalism and laws banning interracial marriage

August 15

David Upham’s new paper “Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause” is an important contribution to the longstanding debate over whether laws banning interracial marriage are compatible with the original meaning of the Fourteenth Amendment. I recently reviewed it at the JOTWELL website (a site devoted to reviews of important new legal scholarship):

Legislation banning interracial marriage has long played an important role in debates over originalism and constitutional interpretation. When such laws came under legal attack in the 1950s and 1960s, their seeming compatibility with originalism was emphasized by conservatives and segregationists as a justification for courts to uphold them. Since the Supreme Court invalidated laws banning interracial marriage in Loving v. Virginia (1967), their apparent acceptability under the original meaning has been deployed by a very different set of commentators: opponents of originalism, most of them associated with the political left. For these critics, the compatibility of laws banning interracial marriage with originalism is not a reason to uphold them, but rather a reason to reject originalism itself….

Regardless of the purpose for which it is used, the originalist case for the constitutionality of laws banning interracial marriage seems initially strong. Public opposition to interracial marriage was widespread when the Fourteenth Amendment was ratified and for decades thereafter. Numerous states, northern and southern, banned interracial marriage at the time the amendment was adopted, and the Supreme Court unanimously endorsed the constitutionality of anti-miscegenation laws in Pace v. Alabama in 1883…

In his recent unpublished paper, “Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause,” Professor David Upham has produced the most far-reaching challenge to that conventional wisdom so far….

Upham’s extensive historical research shows that there was much greater support for striking down antimiscegenation laws among the Republican political elites who framed and ratified the Fourteenth Amendment than was previously thought. This understanding was also reflected in early judicial decisions interpreting the Amendment, especially those by Republican judges.

I do have one potential reservation about Upham’s argument:

Upham’s article is the most extensive originalist rationale for Loving v. Virginia to date. It represents major progress in the literature on the subject. But it does not completely resolve the debate over originalism and interracial marriage. The evidence it presents is stronger with respect to some versions of originalism than others….

Upham’s evidence is very powerful from the standpoint of theories of original meaning that emphasize the understanding of actual or hypothetical readers expert in law. Most of his evidence consists of the views of just such experts…. But many original meaning theorists emphasize not the understanding of experts, but that of the general public—either the actual public or a hypothetical non-expert “reasonable” reader at the time….

It is far from clear that ordinary citizens shared the understanding advocated by Republican elites in the 1860s and 1870s. The text of the Amendment does not unequivocally state that laws banning interracial marriage are now unconstitutional. The average reader of English would not readily understand that a provision barring states from “abridge[ing] the privileges or immunities of citizens of the United States” would necessarily require them to permit interracial marriage. And there is little doubt that most whites, in both the North and the South, strongly disapproved of interracial marriage, as they continued to do until late in the twentieth century.

I discuss the different versions of original meaning originalism and their implications in greater detail in this article. Much scholarship on originalism does not give sufficient consideration to the question of exactly whose understanding of the original meaning is the one that matters for legal interpretation. In some cases, the understanding held by the general public will differ from that of legal experts. And both differ in some ways from that of a hypothetical “reasonable” observer (who may or may not be expert in law, depending on the particular theory of originalism).

Despite this caveat, Upham has written an important paper, one that will be a major contribution to the literature on originalism and racial discrimination. It has not yet been published. So if you are a law journal editor considering, it’s something you should keep an eye out for.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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