The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Sunstein Challenges Originalists on Bolling v. Sharpe (Updated)

If the Supreme Court was correct in Dobbs, was it wrong in Bolling?


In a lengthy guest post at Ius & Iustitium (aka the "common good constitutionalism" blog), Harvard law professor Cass Sunstein argues that Bolling v. Sharpe, in which the Supreme Court held that racial segregation of public schools in the District of Columbia violated the Due Process clause of the Fifth Amendment, cannot be reconciled with originalism, particularly not as embraced in the Supreme Court's recent Dobbs decision.

Here is how Professor Sunstein's post begins:

Uh oh.

For constitutional theory, Bolling v. Sharpe has always been a bit of a puzzle, but it is suddenly much more than that. In Bolling, the Supreme Court held that the Due Process Clause of the Fifth Amendment forbids Congress from segregating the schools in the District of Columbia. That holding is important in itself. Actually, it is much more than important in itself, because it is the source of the broad idea that the national government may not engage in racial discrimination. But Bolling is important as the foundation of an even broader idea, which is that principles of equal protection generally apply to the national government. Because the Equal Protection Clause can be found in the Fourteenth Amendment, and not the Fifth, we have to do considerable work to generate a theory to make sense of Bolling. In Bolling, the Court itself offered some of the essential ingredients of such a theory (as we shall see).

In Dobbs v. Jackson Women's Health Center, the Court cut the legs out from under Bolling. In essence, the Court held that to qualify for protection under the Due Process Clause of the Fourteenth Amendment, a litigant must show that the relevant right is "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." It is exceedingly hard to show that a right to be free from segregation qualifies under this test – not least because segregation was required by the Black Codes, enacted throughout the South in the 1860s, and because the Supreme Court upheld segregation in 1896 and did not strike it down until 1954 (under the Equal Protection Clause). Racial segregation was both practice and permissible for about a century. Insofar as we are speaking of the Due Process Clause of the Fifth Amendment, the idea of a right to be free from racial segregation stands, under the Dobbs approach, on very shaky ground. In fact it is worse than that. For the approach in BollingDobbs is an earthquake.

(footnotes omitted.)

And here is how Sunstein concludes:

My conclusion is that under the approach that commands a majority on the current Court, Bolling was wrongly decided; the question is not even a difficult one. Under that approach, discrimination on the basis of race and sex, or on any other ground, is subject to rational basis review (at most) – and under prevailing standards, must generally be upheld. If that is an unacceptable conclusion (and I believe that it is), it is a strong point for some version of Bolling and against the approach in Dobbs, at least under one view about how to choose a theory of constitutional interpretation.

I suspect some originalist scholars might have thoughts on this.

UPDATE: In United States v. Vaello Madero, Justice Thomas made the case that the Fourteenth Amendment's Citizenship Clause prohibits the federal government from discriminating on the basis of race. Professor Sunstein rejects the Citizenship Clause argument, but it is worth noting nonetheless as an originalist argument for the result in Bolling that does not rest on Due Process.