Originalism and interracial marriage: The surprising result

I spent the weekend at the Originalism Works-in-Progress Conference at the University of San Diego Law School — an incredibly productive and interesting conference. I was quite impressed by the first paper we read there, “Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause,” by David Upham. I hadn’t expected it to find it persuasive, but I did!

Here are the central claims:

That before the Amendment, most (but not all) authorities concluded that such laws abridged a pre-existing right recognized at common law, which right represented a privilege of citizenship;

That during the adoption of the Amendment, both proponents and opponents generally (though not unanimously) declared, acknowledged, or conspicuously failed to deny, that the Amendment would invalidate such laws;

That contra the Supreme Court’s claim in Casey (and the argument of Virginia’s attorneys in Loving), within five years of the Amendment’s ratification, racial-endogamy laws were either non-existent or unenforced in a clear majority of the states, in large part because Republican officials — including virtually every Republican judge to face the question — concluded that African Americans’ constitutional entitlement to the status and privileges of citizenship precluded the making or enforcing of such laws; and

That the contrary holdings were made by Democratic judges hostile to Reconstruction, whose hostility was frequently manifest in their implausible interpretations of the Amendment.

Along the way, the paper also produces a number of surprising information about conceptions of citizenship in the antebellum Republic.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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Eugene Volokh · February 24, 2014