Profs. Dorf & Koppelman on Anti-BDS Laws

A couple of posts prompted by an error (since corrected) in an article that cited our brief.

Profs. Michael C. Dorf (Cornell), Andrew Koppelman (Northwestern), and I have filed a couple of amicus briefs arguing that anti-BDS laws (laws that require government contractors to certify that they aren't boycotting Israel) generally don't violate the First Amendment (see, e.g., here, plus this follow-up post from Mike). A Harvard Law Review unsigned student note described us as supporters of such laws, apparently assuming that, since we thought the laws were constitutional, we thought they were wise.

After we pointed out the error, the editors promptly corrected the online versions of the note; but this prompted Mike and Andy to post further on the subject, explaining that they don't endorse such laws as a policy matter. (My own inclination is to be skeptical of such laws, too, even when limited to conditions on government contracts, though my views on the subject are not firm, at least when applied to large contracts with large organizations.) In any event, if you're interested in the laws, please check out Mike's and Andy's follow-up posts.

Comments

[Krayt]

BDS, by its very definition and purpose, is going beyond speech into economic arm twisting.

You can argue you have this right, too, but it isn't about speech.

[Sarcastr0]

Money isn't speech now?

[Eugene Volokh]

Sarcastr0: Money isn't speech. Restricting the use of money to speak is a speech restriction, just as restricting the use of money to, say, get an abortion would be an abortion restriction, or restricting the use of money to hire a lawyer would be a restriction on the right to counsel. See http://volokh.com/2002_05_05_volokh_archive.html#85078059 .

Whether banning economic boycotts, discrimination, or retaliation is a speech restriction, when those actions are politically motivated, is a separate matter. In our brief, Mike, Andy, and I argue that such bans are not speech restrictions.

[Sarcastr0]

Yes, I understand the distinction you are making, though I remain a bit skeptical that its form devouring function.

that was not Krayt’s argument however.

[Krayt]

Money that buys mass production and distribution of speech is speech, and more accurately, use of the printing press, equally protected.

Other money is not.

Here's a contemporary example of Bernie's hero restricting mass production printing as backdoor censorship.

[Sarcastr0]

That is not the law, Krayt. Hasn't been for 40 years.

[Krayt]

Are you talking about direct donations?

[Sarcastr0]

Buckley is not limited to direct donations.

[librarian]

If buying exclusively from Israel is speech, or buying only fair trade products is speech, or not buying blood diamonds is speech, I would think BDS is also speech.

[Eugene Volokh]

I don't think bans on any such behavior would be generally treated as speech restrictions -- just as bans on buying exclusively from fellow Christians wouldn't be treated as speech restrictions.

[librarian]

Is that to say it would be legal to ban kosher? It all seems very harsh.

[bernard11]

Is that to say it would be legal to ban kosher? It all seems very harsh.

No. That would be a violation of free exercise.

[Longtobefree]

What is your position on forcing a kosher kitchen to bake a bacon cake?

[Bob from Ohio]

Is it a gay or lesbian asking for it?

[Armchair Lawyer]

It's a minority trans-sexual lesbian.

[Leo Marvin]

Yum.

[librarian]

Bacon isn't a sexual orientation.

[TwelveInchPianist]

I disagree.

[NToJ]

Why would you say something so hurtful?

[librarian]

Ok, banning kosher is a violation of free exercise. But what if there is an Orthodox jew who believes Israel is against his/her religion? Must this person sign the anti-boycott provision?

In general, though. Don't actions speak louder than words? Were the tea boycotts in the founding era not speech?

[NToJ]

You can't steal someone else's property, throw it into the harbor, and then defend on the basis of the 1A. Crime can express views, but that doesn't mean you can throw a rock at somebody's head.

[librarian]

Some actions are more speech-like than others. For example, showing up in the street with a large group of people holding signs is speech. Choosing not to eat, that is a hunger strike, is speech. Similarly, choosing not to drink, or drink tea, would be speech.

Fighting words are prohibited speech, as would be throwing rocks or tea.

[librarian]

Boycotting elections is also a thing. How would you like it if the state made you certify that you would not boycott an election? It's plainly coercive.

[NToJ]

I wouldn't like it at all. Just as I don't like anti-BDS boycott laws. I agree it is plainly coercive.

[NToJ]

Yes, holding up signs is closer to speech than stealing people's property or throwing rocks at their head. But you're eliding an important distinction here. The reason showing up on the street may be protected is because streets are public speech zones under Hague v. Committee for Industrial Organization, subject to reasonable time, place, and manner restrictions. Hague certainly doesn't stand for the proposition that you have a right to hold signs in someone else's front yard, even if holding signs is otherwise protected speech.

[librarian]

Throwing rocks at someone's head isn't at all like keeping control over one's own solitary behavior.

Boycotting is basically shunning. Can the government make shunning illegal? I understand that yes, if the shunning is based on immutable characteristics like race, sex, etc., then it can be illegal. But BDS is about protesting policy. And shunning is protesting another person's behavior.

[NToJ]

@librarian,

"Throwing rocks at someone’s head isn’t at all like keeping control over one’s own solitary behavior."

Stealing someone's else's tea and throwing it into a harbor is more like "Throwing rocks at someone's head" than it is like "one's own solitary behavior". To the extent you think boycotting by not purchasing someone else's goods is different, we agree. But the example you used for a "boycott" was not anything like what we are discussing here. It was theft, and destruction of private property. If your definition of "boycott" is so liberal, throwing rocks at heads fits.

[librarian]

@NToJ Who said anything about stealing someone else’s tea and throwing it into a harbor?

[NToJ]

I thought you, since I had mistakenly interpreted "the tea boycotts in the founding era" as having something to do with the Boston Tea Party.

[Armchair Lawyer]

None of those are speech

[librarian]

In the instance of fair trade, how is making a purchase from a company that as part of the bargain promises to spend the proceeds on speech activities, not speech?

As another example, purchasing an anti-terrorism bracelet is speech because the customer is giving money to an organization in order for that organization to do its own advocacy. Banning the purchases of the bracelet means no bracelets and no speech. It is silencing speech, even if the buyer is capable of fashioning his/her own bracelet.

[librarian]

Nevermind, it's not the same.

[Krayt]

By the very definition, it is going beyond frowny-face speech disapproval into deliberate and more coercive economic harm.

Go invent a time machine to visit college campuses in the 1980s regarding South Africa to see the difference. The US policy was to not boycott because that "harmed the little guy". Yet the little guys begged for the boycott so they could be free one day.

There is only a speech component in it insofar as there is general approval in any positive thing you do or buy, or don't.

Robert Heinlein once said, "If you eat meat, you can't consider yourself morally superior to the butcher." There is a speech component to eating meat for (general anyway) approval of butchers morally. Shall we use this as an argument to overturn laws against eating horse, or dogs, or cats?

Ok, I guess. Unless we are soulless frauds relying on situational ethics.

[NToJ]

In this instance "economic arm twisting" means "deciding who you will do business with". It may not be "speech" under current 1A law, but deciding with whom you do business is uncontroversially a matter of personal liberty. And it certainly implicated associational rights.

It's impossible to determine the motive or cause of dozens of decisions over decades, but my suspicion is that boycotting could not be speech under prevailing law because that would put the 1A against anti-discrimination laws, and the latter are basically sacrosanct in the US, at least where racial anti-discrimination laws are concerned.

[Duck916]

Can't really blame them for thinking the authors were fans of the laws. I mean, these days it seems most people analyze a law's constitutionality based on whether or not they like the outcome. So, running into a principled analysis was probably a novel experience.

[ReaderY]

I have a problem with the illicit subjective motive argument.

In Brown v. Board of Education, the Supreme Court, citing Social science studies with dolls, overturned de jure school segregation in part because of the message it sent. If it could be shown that was the motivation, does that turn seller boycotts on black people by schools into expressive activity protected by the First Amendment?

If it’s conduct, it seems to me that a legislature (or court’s) being motivated by “sending a message” doesn’t convert it into a speech restriction. Otherwise, Brown v. Board of Education would itself violate the First Amendment.

[Ilya Shlyakhter]

Why isn't it compelled speech to "require government contractors to certify that they aren't boycotting Israel"? The certification itself is a public declaration that the contractor does not think Israel deserves boycotting, a declaration the contractor may not want to make.

[Alpheus W Drinkwater]

Exactly! I just can't see the clear line that other posters and commenters see on this issue.

But the other side of Prof. Volokh et al's issue is that the people who argue that the laws are unconstitutional are labeled as supporters of an Israeli boycott.

[Ilya Shlyakhter]

"people who argue that the laws are unconstitutional are labeled as supporters of an Israeli boycott" -- which is as absurd as labeling the ACLU as neo-Nazis for defending neo-Nazis' right to march.

[Ilya Shlyakhter]

P.S. If an anti-BDS law requires contractors only to _pledge_ not to boycott Israel, rather than to actually not boycott Israel, surely such a law regulates speech only? Many anti-BDS laws are like that.

[Bored Lawyer]

If an anti-BDS law requires contractors only to _pledge_ not to boycott Israel, rather than to actually not boycott Israel, surely such a law regulates speech only? Many anti-BDS laws are like that.

You seriously think that anti-BDS laws only require a pledge, and you can just lie and proceed to boycott Israel?
Care to give some examples?

[Ilya Shlyakhter]

Here is an example law: https://capitol.texas.gov/tlodocs/85R/billtext/html/HB00089I.htm

If a company makes the pledge but then quietly goes on to boycott Israel, there is no realistic enforcement mechanism to void the contract. The _only_ thing the law authorizes is to use "publicly available information regarding companies", and even then,
"Sec. 808.005. RELIANCE ON COMPANY RESPONSE. The comptroller and a state governmental entity may rely on a company's response to a notice or communication made under this chapter without conducting any further investigation, research, or inquiry".

[Brett Bellmore]

"May". You'd have a stronger case if they were mandated to rely on it, but they're not. They're simply not mandated to make an independent inquiry once they've got the response.

They're still free to do the inquiry if somebody brings to their attention reason to suspect that the certification was false.

[Bored Lawyer]

The certification itself is a public declaration that the contractor does not think Israel deserves boycotting, a declaration the contractor may not want to make.

If requiring someone not to boycott is not speech (it isn't), then the certification is a way of ensuring that the contractor has met the conditions the state imposes. The certification is not a statement of what Israel "deserves," it is a statement that the contractor will comply with a condition that the State imposes on any contract with it. The contractor may think the State policy is wrong, immoral or stupid, but he still has to comply.

Let's say the state decides to build a highway, and decides, for safety, that it is going to require a concrete divider. The contractor might think this is a colossal waste of money. He is entitled to lobby the State to not require the divider or speak out and advocate that the State not have this requirement.

But, if the State is not convinced, then it can require him to do it as the State wants -- and to agree, in a written contract, that that is what he is going to do.

Likewise, the State might require him to pay his workers prevailing union wages and benefits. He might think this is stupid, greedy and excessive. He can speak out against it. But if the State decides that is required, it can both force him to do so as a condition of the contract, and require him to agree to it in writing.

[Ilya Shlyakhter]

The "concrete divider" and "paying wages" requirements govern how the _contracted work_ is done, not what the contractors does on his/her own time. And the state wouldn't be satisfied with a mere _declaration_ of intent to build the divider or pay union wages.

[Bored Lawyer]

Not necessarily. The State can require that the company agree (and pledge) to pay wages in all of its work, not just the work contracted with the State. Same thing for discrimination, for example.

[Brett Bellmore]

The "concrete divider" certainly isn't about what the contractor does on his own time, but the "paying wages" part is, if a minimum wage law is involved. And the contractor is still free to boycott Israel in their private, not commercial life.

To be clear, I think people are entitled to boycott Israel, even if the BDS movement is lousy with anti-Semites. But they're not entitled to that government contract, and engaging in a boycott isn't among the constitutionally protected activities the government can't condition contracting on.

Maybe it should be, but current jurisprudence isn't very favorable to economic liberties. If we're going to restore economic liberties, I think the right to get a government contract despite engaging in economic choices contrary to public policy in a foreign policy context is probably going to be the last economic liberty restored, not the first.

[bernard11]

If you are saying that the 14th Amendment doesn't outlaw school segregation, I don't buy your logic.

It is entirely possible that during the 86 years between the passage of the 14th and Brown we learned a thing or two about segregation and its effects.

We are not bound by 19th century ignorance. We are allowed to learn, and revaluate how the principles of the Amendment should be applied.

[Bored Lawyer]

IMO, Brown was rightly decided but for the wrong reason. For some 60 years, since Plessy v. Ferguson, the prevailing doctrine was "separate but equal." But everyone knew that was a complete farce. The entire intent and practice of segregation as it was done in the South was to be unequal -- to subjugate one race, and treat it as inferior, often very inferior. Black public schools (the subject of Brown) were grossly inferior to white ones.

Had I written the opinion, I would have said, Separate But Equal may be Constitutional, but it only exists in Never Never Land. We have tried that for 60 years and it has proven to be a lie and one used in bad faith to justify racial subjugation. So as a matter of equitable discretion, we are going to ban it. (There is such a doctrine in equity -- you can enjoin legal acts to ensure that illegal ones are not committed, especially where it is clear that merely enjoining the wrongful ones will not work.)

[NToJ]

"We are not bound by 19th century ignorance. We are allowed to learn, and revaluate how the principles of the Amendment should be applied."

An originalist would say we are bound by 19th century ignorance. In any event, your argument is the one that says Brown is just the natural result of the judicial realization that separate could never be equal in practice. But the argument against Brown is more fundamental than a factual disagreement over separate but equal. The idea is that "privileges or immunities of citizens of the United States" and that "equal protection of the laws" can't mean the broadest possible sense of those phrases, or else what point would there be to the 15A?

One narrower, totally plausible reading of the 14A is that it codified the attempts by the federal government to codify certain civil rights under the 1866 civil rights act. And that civil rights (unrelated to the establishment, support, or management of government) were distinct from political rights (like voting, sitting on juries, etc.). Where segregated schools falls under that dichotomy is hard to tell, but it's also hard to see that (per mad's point) that the ratifiers of the 14A intended desegregated schools, since there were segregated schools when the 14A was enacted, the feds were segregated, and both continued to happen long after virtually all of the ratifiers were dead.

Note that your argument that "[w]e are not bound by 19th century ignorance" in context is not an argument against originalism, because it isn't an interpretive argument. It is a rejection that interpretive arguments about what was said yesterday, bind people today. Or at the very least, that we are both (1) not bound by 19th century ignorance and (2) not bound by the amendment process envisioned by 18th century ignoramuses. Which is a full frontal attack on constitutionalism.

[bernard11]

An originalist would say we are bound by 19th century ignorance.

That originalist would be wrong. The argument seems to be that because the drafters of the amendment had no problem with school segregation the amendment must not have outlawed that practice. But the drafters' views were based on the state of their "knowledge" - mostly prejudice, but they thought it was knowledge - at the time.

We have no way to know what they would have thought given the information available in 1954. So their views ought not to carry much weight, if any.

what point would there be to the 15A?

To guarantee voting rights? Even if we take the view that the 14th did not guarantee such rights, what does that have to do with school segregation? And why presume that the 15th was in fact absolutely necessary? Maybe there was some debate about what exactly the 14th guaranteed, and it was thought prudent, even by those who thought the 14th did cover voting, to make the guarantee explicit.

it’s also hard to see that (per mad’s point) that the ratifiers of the 14A intended desegregated schools, since there were segregated schools when the 14A was enacted, the feds were segregated, and both continued to happen long after virtually all of the ratifiers were dead.</i.

See above. Their opinions were based on a misapprehension of the facts, or maybe they allowed segregation as a concession to popular opinion. Legislators are not generally noted for scrupulousness with respect to constitutional requirements.

It is a rejection that interpretive arguments about what was said yesterday, bind people today.

It is an assertion that what was said, or believed, yesterday, does not bind us today if the presumed facts behind what was said have turned out to be false. Suppose that the framers believed, for example, that women were intellectually inferior to men, and that led them to accept some restrictions on women's rights, even though the text, read naively, did not allow such restrictions. Why exactly should we be bound by their beliefs when we interpret the text? I see no reason.

Or at the very least, that we are both (1) not bound by 19th century ignorance and (2) not bound by the amendment process envisioned by 18th century ignoramuses. Which is a full frontal attack on constitutionalism.

On the contrary. I think we are bound by the principles laid down in the Constitution. I think we are at liberty to apply those principles in ways that the framers would have thought odd, because we are better informed than they were on a great many matters.

OTOH we are of course bound by the (foolish) amendment process they laid down, because that process describes a purely mechanical method, with no ambiguities as to the requirements.

[bernard11]

Come on, m_k.

You can do better than this. Say something substantive.

[bernard11]

Still, it was an accurate summation of your opinion. You want all the benefits of a constitutional republic but none of the downsides either.

I don't think that's accurate. I accept the downsides - some of which I dislike very much. I also accept the principles laid out.

My issue is this: The way those principles are to be applied should be based on the facts of the situation, and our grasp of those facts takes precedence over the framers' grasp. To apply a principle based on an incomplete understanding of the facts is foolish, and that's what we do when we say , "This is what the framers would have done, or did," when that action was based on an error, or incomplete understanding.

We can't know what the framers would have done had been better-informed, so to argue that "We should do this, because of what they did" is basing your argument on a possibly false premise.

There are related points as well. There was, even at the time, disagreement as to the scope of the 14th. Why we should adopt one particular view, even if held by a necessarily transient majority in Congress is not clear. Congress can pass laws, but its laws do not amend the Constitution. A law passed in 1869 does not supersede the 14th.

Also, as I noted, Congress, legislatures in general, are not scrupulous about constitutional matters. They go with the political winds and attitudes of the time.

The Founders were well aware of the trade-offs they were making,...To bad you can’t time travel to let them know your received wisdom.

It's not my received wisdom, it's what we as a society have learned over time.

[NToJ]

"Why exactly should we be bound by their beliefs when we interpret the text? I see no reason."

Again, this is an argument against constitutionalism. I'm concerned about the viability of any legal system in which the participants can reject application of laws they simply disagree with, so long as somebody thinks the "facts behind what was said have turned out to be false." Legislatures pass laws every day that I think are based on wrong facts. There are hundreds of millions of people in the United States. Democracy presumes that some people are entitled to be wrong.

"I think we are bound by the principles laid down in the Constitution."

This is just pablum. A lot of the principles laid down in the Constitution are fucking horrible. And if you're just cherry-picking "those principles" you already agree with, that isn't deference to constitutionalism. It's just opportunism.

"OTOH we are of course bound by the (foolish) amendment process they laid down..."

No, that process is amendable too. But what's the alternative? If we aren't bound by the Constitution unless you agree with the principle stated, what you're describing isn't a legal system.

[awildseaking]

"Suppose that the framers believed, for example, that women were intellectually inferior to men, and that led them to accept some restrictions on women’s rights, even though the text, read naively, did not allow such restrictions. Why exactly should we be bound by their beliefs when we interpret the text? I see no reason."

Because "their beliefs" are not "their beliefs." They are "your beliefs about their beliefs."

Picking and choosing the meaning of words and not examining their real world application is a dangerous precedent. Any kind of non-holistic approach is a recipe for disaster. Should laws change with language? If a law does the opposite of what it intended to do, does that outcome retroactively become the intent of the law? Do you see how rejecting original intent opens the door to reject modern interpretations as well? Who cares if we re-evaluate past opinions in this manner? My opinions will never be challenged using the same criteria, or at least I'll be long dead by the time they are!

I presume that's why you were told to have your cake and eat it too. That's pretty spot on tbh.

[David Nieporent]

That originalist would be wrong. The argument seems to be that because the drafters of the amendment had no problem with school segregation the amendment must not have outlawed that practice. But the drafters’ views were based on the state of their “knowledge” – mostly prejudice, but they thought it was knowledge – at the time.

We’re not talking about the drafters' "views." We're talking about their actions. Whether school segregation is harmful and whether they knew school segregation was harmful is beside the point. The question is whether they banned it or not.

[NToJ]

"The way those principles are to be applied should be based on the facts of the situation, and our grasp of those facts takes precedence over the framers’ grasp."

There's a process problem here. The idea is that we should be able to amend the Constitution so long as we disagree with the facts they relied on in making laws in the first place. But we're talking about Brown, not a popular referendum. When you say "our grasp" you don't mean the grasp of the people. You mean the grasp of unelected judges.

More importantly, if we can't "know what the framers would have done had been better-informed" how can a subsequent court (at any level) presume to rework the intended result of the amendment? Once you confess that there is insufficient evidence to support granting the plaintiff's requested constitutional relief on the basis of what was intended, the answer is not to trudge forth. Instead, a court should find that the plaintiff has failed to meet their burden.

You're insisting that mad and me believe our arguments are about what "We should do". I assume "We" means voters, society, etc. Our arguments are about what courts should not do. Namely they should not reach conclusions that you've now admitted they cannot justify, except on non-judicial grounds.

"Why we should adopt one particular view..."

How can you make this argument when you're the only one arguing for binding adoption of a particular view? A court that ducks a constitutional question does not bind Congress or the President or the voters from taking an alternative view. It's just the court saying "I don't see the constitutional violation here."

[bernard11]

The idea is that we should be able to amend the Constitution so long as we disagree with the facts they relied on in making laws in the first place.

This is begging the question. I'm not talking about amending the Constitution. I'm talking about applying it. There's a rule and there are cases. "Equal protection" is rule. Does it mean we have to allow women to become lawyers? Well, if you think women have some inherent defect that affects their ability to practice law then maybe we can bar them from the profession. If you don't, then the rule pretty much says they can't be barred.

But we’re talking about Brown, not a popular referendum. When you say “our grasp” you don’t mean the grasp of the people. You mean the grasp of unelected judges.

As soon as I see the phrase "unelected judges" I smell BS. Judges are who we trust to decide constitutional questions.

how can a subsequent court (at any level) presume to rework the intended result of the amendment? Once you confess that there is insufficient evidence to support granting the plaintiff’s requested constitutional relief on the basis of what was intended, the answer is not to trudge forth. Instead, a court should find that the plaintiff has failed to meet their burden.

You are begging the question again by claiming to know "what was intended." We do not necessarily know what was intended. More precisely what I mean is that we do not know what the framers would done given a more accurate set of assumptions, or perhaps a preview of how their views actually worked out.

Our arguments are about what courts should not do. Namely they should not reach conclusions that you’ve now admitted they cannot justify, except on non-judicial grounds.

Cannot justify?? What you are arguing is that the courts should reach conclusions based on historical prejudices which they cannot justify. Does the 14th permit school segregation? Yes, you say, based on historical practice, the text notwithstanding. But historical practice was based on a variety of unjustified prejudices and opinions. So who is urging the courts to reach unjustified conclusions?

[bernard11]

m_k,

As for the 14th Amendment, yes that is a disagreement on the scope, but isn’t a huge piece of evidence what the *same congress* and *various states* did at the time of its ratification, specifically on the point of segregated schools? It seems silly to just handwave that away because you like the outcome, which protests aside, you’re doing.

Certainly it's a massive piece of evidence, but of what? Why exactly did they think segregated schools were OK? And if their reasons were faulty, what does that say about the conclusion? Fundamentally, we need to reconcile the text of the amendment with practice. To start with, people have a habit of not living up to their stated ideals, and this applies even more strongly to governments. So there's that. And if the method of reconciliation is fallacious, then the result may be also.

As for your love of whiggish history, please show a bit of hubris. While I happen to agree that separate but equal was morally wrong, don’t be so sure what “we as a society have learned” is actually objectively correct. It’s just popular.

No need resort to Whiggish history to suggest that our historical experience may prove some of the beliefs of 1868 wrong, or that science, broadly defined, has in fact taught us a few things.

[NToJ]

@bernard,

"I’m talking about applying it."

I can't agree with this. If you confess that you aren't trying to give effect to the original intent of the ratifiers, what you're doing is not legal application or interpretation. You're up to something else. And that's fine, but it isn't interpretation of the law. That's why I think you're advocating an assault on constitutionalism generally.

"Well, if you think women have some inherent defect..."

When you answer this way you're already telling me that you've provided substance to what "Equal protection" means in the first place. But that's the very thing that's in dispute. And since you've now said that what they believed "Equal protection" meant is irrelevant, why would you weirdly still cling to equal protection? If original intent is irrelevant, why can't the words be irrelevant too?

"You are begging the question again by claiming to know “what was intended.”"

No, me and mad are making proposals on what we think was intended. If your answer was "I've reviewed the debates, etc. and I think they actually intended desegregation" we'd be having an argument about original intent. But what you said instead was that their original intent is irrelevant. Our disagreement is not over who is right as to what was intended--you seem perfectly willing to concede that mad and I have correctly intuited original intent.

"...we do not know what the framers would done given a more accurate set of assumptions..."

I'm fine with this result! The answer, though, is to not rule either way. Can you imagine a judge "interpreting" a 70 mph speed limit by saying "When the legislature passed the law, speeding only killed X people per year. But now it is at X + Y. Since we don't know what they would have done given X + Y, the law is that the speed limit is 65."

[NToJ]

@bernard,

"What you are arguing is that the courts should reach conclusions based on historical prejudices which they cannot justify."

They don't have to justify historical prejudices to follow the law. The past is a foreign country, they do things differently there. Historical prejudices can be the law. And if the law or the facts don't support the plaintiff's case, what else is it you think a judge is supposed to do, except demur?

[bernard11]

Tell me on what basis, if any, the courts are allowed to conclude that a practice followed in 1869 is unconstitutional under the 14th Amendment.

In terms of one example I raised, would a law passed today that prohibited women from becoming lawyers pass muster under the 14th? If not, why not?

Is it written in stone that the laws from that time are necessarily constitutional? Because that is what your argument amounts to.

They don’t have to justify historical prejudices to follow the law. The past is a foreign country, they do things differently there. Historical prejudices can be the law. And if the law or the facts don’t support the plaintiff’s case, what else is it you think a judge is supposed to do, except demur?

And if the facts don't support the historical prejudices?

But what you said instead was that their original intent is irrelevant.

To be clearer, the way they would have applied a particular provision to a modern case will often be irrelevant, because they would not understand the context, or because the possibility would not have occurred to them.

[bernard11]

Once you deny the admittedly massive piece of evidence that segregated schools were constitutionally acceptable to the people who implemented the 14th amendment, there is a serious disconnect if we throw that out because you don’t like the implications.

It's true that I don't like the implications, but on a logical basis what I object to is the reasoning. You yourself admit that,

from a pure textualism analysis of the words of the Fourteenth Amendment, all protections of the Bill of Rights should have applied to all citizens in all states immediately after its passage in 1868.

OK. So why were there exceptions, and if there were to be exceptions, and the meaning was much narrower than that stated, why this wording?

[bernard11]

I’m fine with this result! The answer, though, is to not rule either way. Can you imagine a judge “interpreting” a 70 mph speed limit by saying “When the legislature passed the law, speeding only killed X people per year. But now it is at X + Y. Since we don’t know what they would have done given X + Y, the law is that the speed limit is 65.”

Bad analogy. A law setting a specific speed limit is specific, like the requirement that the President be 35 years old. I'm not arguing that should we discover that 30 year-olds are perfectly capable of being President that we should simply disregard that requirement. What I am saying is that when the Constitution makes broad rules about things like cruel and unusual punishment, equal protection, due process, etc., we should make our best effort, when trying to follow them, to do so in the light of the best information we have, and not throw away the knowledge accumulated since the words were written.

It is nonsense, IMO, to say that because the principle was applied to a specific case a certain way when written we must always apply it that way to similar cases, even if we have good reason to believe that the original application was based on error.

[bernard11]

Science has taught us lots of things, many of them wrong as shown by later science, and today’s scientific knowledge will be shown to be wrong on tons of stuff a century from now. Moreover, science doesn’t produce values. There are a host of 1868 values that were commonly held that are more correct than those held today, even scientifically speaking.

Nonetheless, we know more today than we did in 1868, by quite a lot.

[NToJ]

@bernard,

"Tell me on what basis, if any, the courts are allowed to conclude that a practice followed in 1869 is unconstitutional under the 14th Amendment."

My response is very little, since the following of that practice in 1869 is fairly strong evidence that the 14A was not a legislative remedy to that practice.

That's not categorical. I'm willing to be persuaded that not everyone lives up to their ideals. But it has to be the case that the ratifiers intended ideals when they ratified, and only later changed their minds. Some academics make the argument that the Alien and Sedition Acts are an example of that. However, based on the contemporaneous writings of many of the ratifiers of the 14A, it is pretty apparent to me that whatever lofty ideals you attribute to them were not in fact very lofty at all.

"...would a law passed today that prohibited women from becoming lawyers pass muster under the 14th? If not, why not?"

If "pass muster under the 14th" means survive current constitutional law, no. But the 14A has not been subject to original interpretation. If you're asking if I think the 14A prohibited states from preventing women from becoming lawyers, I don't know the answer because I haven't looked at it, but it wouldn't surprise me to find out that the 14A was not intended to ensure that women had access to the legal industry. I think there's widespread agreement that the protections for women under the 14A are not the same as the protections for, e.g., black people, which is why we had (for so long) intermediate scrutiny for sex-based discrimination, and the ERA, etc.

[NToJ]

@bernard,

"And if the facts don’t support the historical prejudices?"

What difference would it make? There is no exception to enforcement of the law that the legislature was just wrong. If the 14A said "Women are genetically inferior and are not subject to the 14A's protections" that would be the law, don't you think? Even though the historical prejudice underlying the law is wrong, it's still the law. There is no requirement that laws be factually supported, moral, etc.

"...or because the possibility would not have occurred to them."

This is a common rebuttal in favor of living constitutionalism. Since the ratifiers didn't know what the internet was, we shouldn't shackle ourselves to pure original intent because the 1A would lose content. I think that's a pretty good rebuttal (though overstated) as far as it goes. But that's not what we're talking about. Segregated schools was not a "possibility that would not have occurred to [the ratifiers of the 14A)". It was a very real possibility that they all lived with their entire lives.

You would respond that they may have known about segregation, but didn't comprehend its evil, or understand genetics, etc. All true, but that's just a long way of saying that in a counterfactual world in which the legislature had the benefit of what you know, they'd have passed a different law. But judges aren't asked to interpret counterfactual laws.

[NToJ]

@bernard,

"Bad analogy. A law setting a specific speed limit is specific..."

The purpose of this pointed analogy is to demonstrate that once you conclude that original intent is irrelevant, there is no longer anything connecting judicial decisions with the law-givers. Your argument was not that we don't know what the 19th century ratifiers intended. Your argument is that you don't care, because you know more than them.

If we believe "Equal protection" is a legal term with the same certainty as "70 miles per hour", then the judicial goal is to determine the outer limits of "Equal protection" as intended.

Let me throw you a bone. It is possible--and has been argued by originalists on this blog--that the original intent for various constitutional provisions (like the 8A, for instance) very much contemplated, as originally intended, a living interpretation that changed down the road. I have no problem with this argument. I think it's factually unsupportable where 14A and desegregation is concerned, but it's still an originalist argument. Because it rests of the original intent being that the law would be subject to change through judicial interpretation.

I do think the 14A has a component of this. Section 5 suggests that Congress can enforce it. One interpretation is that the ratifiers intended for Congress to have the primary role in determining the extent and scope of the 14A, but SCOTUS seized that role for itself in City of Boerne v. Flores.

[bernard11]

Thanks for the bone. I'm sure the soup will be tasty.

I have no problem with this argument. I think it’s factually unsupportable where 14A and desegregation is concerned, but it’s still an originalist argument. Because it rests of the original intent being that the law would be subject to change through judicial interpretation.

I think school desegregation is a good example of the point I am trying to make.

The drafters of the 14th thought segregation was acceptable, because they thought that separate schools could nonetheless provide equal treatment.

But the very premise of Brown was that segregation automatically meant the schools were not equal. So the 1868 assumption was wrong, and segregated schools violated the Amendment.

If we believe “Equal protection” is a legal term with the same certainty as “70 miles per hour”, then the judicial goal is to determine the outer limits of “Equal protection” as intended.

I do not believe that. Seventy miles per hour is a specific physical measurement. (No Heisenberg jokes please.) "Equal protection" is not.

[Sarcastr0]

This may have been contentious, but it was a good exchange; reminds me of the old Conspiracy.

[Brett Bellmore]

"This may have been contentious, but it was a good exchange; reminds me of the old Conspiracy."

Agreed.

Note, I'm very much an originalist, but I fall into the camp that believes "separate but equal" became presumptively unconstitutional in light of the history demonstrating that, in practice, separate never IS equal. Not that it couldn't theoretically be equal, but just as a fact about our society: The people who want separate never want equal, they want separate specifically to get unequal.

[bernard11]

Thanks, sarcastro and Brett.

A way to put my point in terms of "intent" is to say that the Amendment was intended, among other things, to provide equal schools for blacks.

The segregation legislation was acceptable, at the time, because those passing it did think they were complying. But the passage of time taught us that the belief underlying the legislation was wrong, and that it therefore was in fact unconstitutional.

[Brett Bellmore]

"A way to put my point in terms of “intent” is to say that the Amendment was intended, among other things, to provide equal schools for blacks."

Maybe a minor quibble, but I would say it was intended to provide that, to the extent schools were publicly provided, they would be equal. The way you phrase it makes it sound like the 14th amendment would have been violated by simply not having a public school system, (Only about 50% of the population had them at the time.) or private schools being unequal. Which would have been a very ahistorical take on it.

[NToJ]

@bernard,

"The drafters of the 14th thought segregation was acceptable, because they thought that separate schools could nonetheless provide equal treatment."

This is putting the cart before the horse. I don't think "Equal protection" was originally intended to require equal treatment in public schools of black and white students. A narrower understanding is that it was intended to secure for blacks a very specific subset of rights afforded to whites, but which did not include things like voting, entitlement to service on juries, that sort of thing. I am not yet persuaded that the ratifiers of the 14A thought segregation was acceptable only so long as it was equal. The separate but equal doctrine was something cooked up by the Court in Plessy, decades after ratification of the 14A.

"I do not believe that. Seventy miles per hour is a specific physical measurement. (No Heisenberg jokes please.) “Equal protection” is not."

While it is easier to know what is intended with a 70 mile per hour speed limit enacted last week than it is to determine what "The Law Shall Be Fair" written 200 years ago, the judge's role remains interpretation in either event. I think the latter sort of law is more subject to an interpretation that assumes the legislature intended malleability in meaning. But in both instances we are still bounded by what we believe the legislature who enacted the statutes believed. If you say that the legislature's intent in "The Law Shall Be Fair" is irrelevant, it's also irrelevant in the case of the 70 mph law.

I do not think this is controversial, at least in the judiciary. (Academics is a different story.) Even non-originalist judges (however defined) have to pretend to be originalists. There is never going to be a judicial opinion in which a judge says "After reviewing the evidence and argument of counsel, I have determined that the legislature intended X. Nonetheless, I think not-X is better for society, and so I choose not-X." Posnerian pragmatism pretends to decide on the basis other than intent, but there are dozens of purely intent-focused Posner opinions. Even Justice Brennan frequently acted as a thorough originalist in statutory (City of Lafayette v. Louisiana Power & Light Co.) and constitutional interpretation (Atascadero State Hosp. v. Scanlon, dissenting) ("New evidence concerning the drafting and ratification of the original Constitution indicates that the Framers never intended to constitutionalize the doctrine of state sovereign immunity."). Because there aren't any other theories of interpretation besides originalism.

Which is a long way of saying that you may be right about what the 14A means, but it can't be because the original intent is irrelevant, at least in my view. The argument that we are not subject to rule by the dead is a fine argument, but it isn't an interpretive argument. It's just a claim against Constitutionalism in the first place.

[bernard11]

Brett,

Maybe a minor quibble, but I would say it was intended to provide that, to the extent schools were publicly provided, they would be equal.

I agree.

[bernard11]

Which is a long way of saying that you may be right about what the 14A means, but it can’t be because the original intent is irrelevant, at least in my view.

Maybe we just have a different way of viewing "intent." You want to argue that there was no intent to outlaw school segregation, in support of which claim you bring up the establishment by Congress of segregated schools in DC.

My view is that the intent was, partly, to provide equal treatment by the government in many spheres. That the same people who approved the Amendment created segregated schools may only prove that they thought segregated schools could be equal, which they surely did.

So when I say intent is irrelevant what I mean is that the way the Amendment was applied to the question of school segregation at the time is irrelevant because it was based on a false premise, and that once it is understood that the premise is false the application is seen to be incorrect.

[NToJ]

@bernard,

Then we're not as far apart as I had previously thought. I still think we have a serious disagreement. The argument you've presented is CJ Warren's argument. ("Only [by considering public education in light of its full development and its present place in American life nationwide] can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws."). But once it is conceded--and we all agree--that "Equal protection" could not possibly have been intended literally, that just pushes off the more complicated question as to what the 14A ratifiers intended with "equal protection of the laws".

The legislative history is unusually all over the place in light of the partial purpose of the 14A, which was to bring politically contentious people back into the fold. Broad language was used to placate angry northerners, while moderates assured the southerners that the words didn't mean what they said, and could never extend to political rights, miscegenation, etc. So it's complicated.

Why that's important is that the 14A was enacted with a long history of constitutional background behind it. Judicial review of legislation--even state legislation--had always been biased in favor of avoiding constitutional infirmity, owing to the fact that judicial review is not clearly spelled out, and to the "irreconcilable variance" language from Federalist 78. And so if the legislative history is muddled, the bias should be towards the narrowest plausible reading of the 14A to avoid judicial seizure of matters properly left to the people.

One rejoinder would be: Why put it in the Constitution if we didn't want judicial seizure? The obvious answer is that the 14A was intended to expand congressional power to permit Congress to decide the issues, rather than leaving it to the same court that decided Dred Scott.

Relatedly, even if you could resolve the intent of the legislatures as to the scope of the 14A it isn't obvious that it was intended for that scope to be defined by the judiciary. Your entire argument supports, in part, constitutional avoidance of 14A questions for the judiciary. Because to the extent you believe the 14A was intended (originally) to have its scope delineated by SCOTUS, that's just as subject to being another "false premise" that we can reject today.

Which brings us to the final issue. Assume you can overcome the hurdle of proving that the amendment intended X but only to the extent based on premise Y, and that once premise Y failed to obtain, X could change too. Who is to resolve the factual dispute over Y? You used the passive voice for "once it is understood". Understood by whom? Because I can agree with everything you say and still reject that Brown was correctly decided, if the answer to "by whom" is found in Section 5 of the 14A.

[bernard11]

Because “their beliefs” are not “their beliefs.” They are “your beliefs about their beliefs.”

No. I am not talking about what I imagine their beliefs were, but about a situation where we know, from the evidence of their words maybe, what they actually believed.

Do you see how rejecting original intent opens the door to reject modern interpretations as well? Who cares if we re-evaluate past opinions in this manner? My opinions will never be challenged using the same criteria, or at least I’ll be long dead by the time they are!

Of course I see that. And I accept that if current interpretations are shown to be based on false assumptions they will be rejected. I hope they will be.

Locking ourselves into a late 18th Century view of the world is ridiculous, and it would be equally ridiculous for 22nd Century Americans to feel bound by today's views.

[bernard11]

So you too accept the idea that we are obligated by the Constitution to provide equal educational opportunity to all, regardless of race.

What do you say to those like NTOJ and m_k who argue otherwise?

[Bored Lawyer]

Where do you see that in my post?
Nothing in the 14th Amendment requires a State to provide anything to anyone. (Which is what the Supreme Court held in DeShaney v. Winnebago County). If a State wanted to abolish all public schools and leave education to private efforts, that would be Constitutional, if foolish.
But that is not what the Southern states did. They, like the Northern states, spent considerable sums to create and provide for public education, from kindergarten through university. And that provided to blacks was decidedly inferior, on purpose. THAT does violate the 14th Amendment's Equal Protection provision.

[Bored Lawyer]

BTW, in terms of recognizing the reality if the intent of segregation, that was plain from the beginning. Here is part of Jjustice Harlan's dissent in Plessy v. Ferguson:

It was said in argument that the statute of Louisiana does not discriminate against either race but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statues in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travellers. The thing to accomplish was, under the guise of giving equal accommodations for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.

[bernard11]

Sorry.

I meant that if the state provides schools they must be equal.

(Though of course there is nothing technically wrong with what I wrote, since providing no public schools at all does treat everyone equally.)

[Bored Lawyer]

My answer to that is that Equal Protection, on its face, means that the states treat everyone equally regardless of race. I don't see any historical support for the notion that equality was only for certain things (the Privileges and Immunites Clause, maybe) and not others. Some rights might have been uppermost on their minds, because that is what they had at that point in history. But Equal Protection, if nothing else, means the state treats everyone equally, regardless of race.
The language of the 14th also supports that:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Equal protection applies to all of "the laws" in each jurisdiction. Not just some laws. They were certainly aware that States (and Congress for that matter) could and would pass all kinds of laws going forward, and may come up with all kinds of new things. The prior 75 years' experience had shown that. These were now required to be applied equally by race.

[Bored Lawyer]

Whoops, the last paragraph is mine, not supposed to be in Blockquote.

[NToJ]

Hey how do I blockquote?

"My answer to that is that Equal Protection, on its face, means that the states treat everyone equally regardless of race."

Race isn't mentioned in the 14A. Making that clarification itself assumes looking behind the words. Likes should be treated alike is also tautologous, so it's mostly useless. The entire purpose of the law is to distinguish people. The law has never treated murderers and non-murderers the same.

My view is limiting the 14A on race--or even more specifically to laws that treat black people differently than white--and to those civil rights contemplated under the 1866 civil rights act, is probably the narrowest plausible reading of the 14A. And for that reason the one that should be adopted by federal courts.

"I don’t see any historical support for the notion that equality was only for certain things (the Privileges and Immunites Clause, maybe) and not others."

One prominent example would be the 15A. If "Equal protection" extended to suffrage for blacks under the 14A, what was the point of a later amendment?