Michael Ramsey on laws banning interracial marriage and the methodology of originalism [updated with a note on the views of Justice Antonin Scalia and the majority of the Supreme Court]

August 17

In my recent Jotwell essay reviewing David Upham’s important new article on originalism and laws banning interracial marriage, I argued that Upham’s work effectively demonstrates that legal experts in the 1860s believed that the 14th Amendment bans anti-miscegenation laws, but is far less clear on the issue of whether ordinary citizens interpreted it the same way. This matters because some theories of originalism hold that the true original meaning is the one understood by ordinary citizens at the time or by hypothetical “reasonable” readers of English, who may not be legal experts. University of San Diego law professor Michael Ramsey argues that this issue may not be so important, because it is clear that the Amendment should be interpreted according to the understanding of legal experts:

I agree this is an important methodological issue, but I think (particularly in this case) the right approach is clear. Words get meaning from their context. The context of words in a constitution, statute, treaty, etc., is that they are part of a legal document. In a legal document, one would expect to encounter a legal vocabulary. Thus the right way to understand words in a legal document — whether you are a member of the legal community or an ordinary non-legal person — is to understand those words’ legal meaning.

This approach is not something unique to law: if I — a lawyer, not a doctor or an engineer — am reading a medical document or an engineering document, I am going to try to find out the medical or engineering context of the words in the document, not try to work out what the words (shorn of their context) mean to me at first sight. Or at least, that’s what I should do.

This approach is particularly sensible when the words in question do not have an obvious non-legal meaning. To take Professor Upham’s subject, “privileges or immunities of citizens” does not have a common meaning apart from its legal context. To the extent it has any specific meaning, that meaning must come from the way the phrase was understood in the legal vocabulary.

As a result, I think that regardless of whether the objective is the original legal meaning or the meaning to a well-informed ordinary reader of the time, the answer is the same. An ordinary well-informed reader would seek out the legal meaning, because that it is the best way to understand words in a legal text.

Professor Ramsey may be right. But I think the issue is more complicated than he suggests. The analogy to a medical or engineering texts is not a very good one, because medical and engineering texts do not derive their legitimacy from the approval of nonexperts. By contrast, at least on some versions of originalist theory, a constitutional text derives legitimacy from the approval of a political process in which ordinary citizens – not just legal experts – get to participate.

Ramsey is right that ordinary people might interpret a technical sounding phrase such as “privileges or immunities of citizens” to mean whatever the community of legal experts believes it means. But it is also possible that they interpreted it as meaning something like “important rights that most Americans believe all citizens should have.” In that event, they might not have understood the phrase to include a right to enter into interracial marriages, since (as I noted in the Jotwell review), most white Americans in the 1860s were opposed to such marriages. While there is certainly a long tradition of believing that words in a “legal text” should be understood according to the interpretations favored by legal experts, there is also a long tradition holding that the words of the Constitution must be understood in a way accessible to ordinary readers, a tradition endorsed in several Supreme Court decisions (I discuss this issue here).

Finally, Ramsey notes that “it would be troubling if there was evidence of a wide gap between the original common understanding of the text and the text’s original legal meaning.” In this case, there is reason to suspect the existence of just such a gap. As discussed in my Jotwell essay, most white Americans in the 1860s (including many northern whites) were strongly opposed to interracial marriage between blacks and whites. It is therefore likely (though not far from certain) that they did not interpret the Fourteenth Amendment as a ban on state laws that forbid such marriages. If they had understood it that way, it is possible that the Amendment would not have gotten enough public support to be ratified. To be sure, it is also possible that many ordinary citizens did understand it as banning such laws, but chose to support it anyway, even if they did not approve of this one aspect of it. More research is needed on the issue.

None of this necessarily proves that the original meaning of the Fourteenth Amendment permits state laws banning interracial marriages. Originalists have a variety of strategies for rejecting that result. Among others, they can endorse original intent originalism (the view that judges should follow the meaning intended by the political elites who drafted the relevant part of the constitution), they can privilege the meaning understood by legal experts, or they can look for evidence that the general public really did defer to the views of legal elites on these issues or was more liberal in its racial views than traditionally supposed. Some could also conclude that, while the original meaning should be a major factor in constitutional interpetation, it need not always trump all other considerations. But the issue is at least considerably more difficult than Ramsey suggests.

Some may dismiss this entire discussion as purely academic. After all, the Supreme Court is not about to overrule Loving v. Virginia. Nor are state governments likely to bring back laws banning interracial marriage, even if the Court did allow them to do so. But for reasons I noted in the Jotwell review, the debate over whether such laws are compatible with originalism has broader significance for the debate over originalism itself. And the distinction between the original meaning as understood by experts and that understood by the general public has significance for a variety of controversies about the original understanding of other parts of the Constitution.

UPDATE: In United States v. Sprague (1931), the Supreme Court indicated that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” This principle was reaffirmed in 2008, in Justice Antonin Scalia’s majority opinion in District of Columbia v. Heller. Scalia adds that, in his view, originalism “excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.” The fact that a majority of the Supreme Court, including its leading originalist justice, endorses this approach does not necessarily make it the correct version of originalism. Scalia could be wrong, and scholars who privilege the understanding of legal experts could be right. But it does suggest that the approach endorsed by Scalia and the Court deserves serious consideration.

UPDATE #2: In the original version of this post, I accidentally neglected to include a link to Michael Ramsey’s post. I apologize for the mistake, which has now been corrected.

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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