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Bolling v. Sharpe and Originalism

Mike Ramsey reports on the posting of a new article by Gregory Dolin that attempts to justify the case of Bolling v. Sharpe, which held that a Fourteenth Amendment equality requirement applies to the federal government. This is a difficult argument to make, since the two provisions which are most likely to apply an equality requirement — the Privileges or Immunities Clause and the Equal Protection Clause — apply only against the states, not the federal government. There is some evidence that the Due Process Clause of the Fourteenth Amendment applies an equality requirement, but that Clause applies only to the states. There is not much evidence that the Fifth Amendment Due Process Clause, which applies to the federal government, contains such a requirement.

Dolin argues that an equality requirement derives from the Citizenship Clause of the Amendment, which provides that “All persons born or naturalized in the United States . . . are citizens of the United States.” While I have not read Dolin’s paper, this is a common argument these days, most recently defended by Ryan Williams in the Virginia Law Review.

Dolin argues

In this Article I argue that Bolling is justifiable as an originalist matter if one properly interprets the Citizenship Clause of the Fourteenth Amendment. Properly understood, the clause was meant to protect not just a right to a passport or nationality, but a much broader right of equal participation in the civic life of the Nation. The term “citizen” was understood by the framers and ratifiers of the Fourteenth Amendment to encompass a wide scope of political rights, including a right to equality before the law. When viewed from that perspective, it becomes apparent that Bolling was correctly decided not only from the political perspective, but from legal originalist one as well.

This type of argument is seriously problematic. In a recent article, I addressed this position in a footnote that sets forth the most serious problems:

In recent years, some scholars have argued that a Fourteenth Amendment equality principle applies against the federal government. . . . [through] the Citizenship Clause of the Fourteenth Amendment . . . . While this is not the place to attempt to rebut this argument, a few words may be in order. First, it would be extremely odd to read the Fourteenth Amendment in this way. The obvious meaning of the Amendment is that it confers citizenship rights in the Privileges or Immunities Clause, which stated that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. CONST. amend. XIV, § 1. If the Amendment had been intended to protect the privileges or immunities of citizenship against the federal government, it could have easily used the language “[n]o State nor the federal government,” as the Fifteenth Amendment would shortly do. Instead, the language of the Fourteenth Amendment makes perfect sense. The first sentence of the Amendment, the Citizenship Clause, indicates who is a citizen (persons born or naturalized in the United States); the second sentence, in the Privileges or Immunities Clause, indicates what their rights are (no state may abridge the privileges or immunities of citizens).

Second, the historical context for the Fourteenth Amendment is also informative. The Thirteenth Amendment, which had prohibited slavery, had failed to provide a firm foundation for the Civil Rights Act of 1866. While some Republicans had argued that not being a slave meant possessing basic civil rights, others argued that slavery referred to a specific institution and that one could be free of the bondage of chattel slavery without enjoying basic civil rights. One reason to pass the Fourteenth Amendment was to place the Civil Rights Act on a secure constitutional footing in a way that the Thirteenth Amendment had failed to do. But to rely on an inference that the mere status of citizenship conferred basic civil rights was similar to relying on the inference that the absence of slavery conferred such rights. Such reliance on an unclear inference would have committed the same error that the enactors of the Thirteenth Amendment had, in an amendment intended to correct that error. It makes much more sense to see the Fourteenth Amendment enactors as spelling out the rights of citizens—protecting against states abridging their privileges or immunities.

It is also relevant that applying an equality requirement to the states, but not the federal government, reflected the world view of the Framers of the 14th Amendment.  Based on their own experience leading up to the Civil War and during Reconstruction, they believed that the states were disposed toward abridging equality rights much more than the federal government was.  I develop this point and explain why these Framers excluded the federal government from the equality requirement here.

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on June 02, 2015 at 15:26:28 pm

Seems to me Dolin exaggerates the pressure to say that Bolling reached the correct constitutional result. Even if Bolling reached the wrong constitutional result, it still may have reached the correct result as a statutory matter. John Q. Public does not care much whether the result is justified by statute or by constitution.

There are two independent reasons why Bolling was decided correctly as a statutory matter. First, Congress never authorized segregation of DC public schools, and instead it was a local decision, so (as Michael McConnell has argued) the Court could have simply desegregated the DC schools absent a clear decision by Congress to the contrary.

The second statutory reason why Bolling yielded the correct statutory result is because the Civil Rights Act of 1866 (reenacted in 1870) was still mostly on the books in the 1950s (as it is today), and it arguably forbade thus type of racial discrimination. True, the CRA was not interpreted that way by most people shortly after it was written, but many people interpreted it that way including its author Sen. Lyman Trumbull. If you look at the actual words of the CRA, Trumbull was right.

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Andrew Hyman
on June 03, 2015 at 12:30:44 pm

While I don't think the 14th Amendment addresses Congress' duty to treat all citizens equally, I think that duty is implied in the original Constitution. That is replete with uniformity requirements restricting Congress' enumerated powers. It includes the Titles of Nobility clause which I read to forbid Congress to favor anyone on a hereditary basis and the Privileges And Immunities clause which expresses the notion that there are privileges and immunities of citizenship which are national and uniform. Congress has no (enumerated or implied) power to fragment the "privileges and immunities" of citizenship, which include a right to equality before the law and impartial treatment by the authorities-- that being the difference between citizens and aliens or "other persons."

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Perceptron
on June 03, 2018 at 22:10:35 pm

I've got a question for you, Andrew--if the U.S. Congress would have never explicitly authorized the segregation of restrooms by sex (or by gender) in the schools and federal buildings in the District of Columbia, would that have meant that anyone of either gender (or either sex) would have been allowed to use whatever restroom he or she would have wanted to use in the schools and federal buildings in the District of Columbia?

Basically, I am curious about this because if race-based segregation requires explicit authorization from the U.S. Congress to be valid, wouldn't the same also be true of sex-based segregation (such as in regards to sex-segregated restrooms)?

Secondly, you ignore Dolin's point is that, in the absence of Bolling v. Sharpe, the U.S. government could set different naturalization rules for people of different races. True, the odds of this actually happening are virtually zero, but from an originalist perspective, it looks like this would be permissible--and that might be a problem for someone who is trying to sell originalism to the public.

Thirdly, I'd like to see exactly which part of the 1866 Civil Rights Act forbids segregated schools. To my knowledge, the "no discrimination in civil rights" phrase was removed from this act during the drafting process out of a fear that this phrase will be construed more broadly than intended by judges. (Indeed, Raoul Berger wrote about this in his 1977 book Government by Judiciary.)

Finally, as a side note, I am going deep into living constitutionalism (and away from originalism) here, but it's quite interesting that the principles of Bolling combined with modern Equal Protection jurisprudence could easily result in the conclusion that the natural-born citizen requirement for the U.S. Presidency should be invalidated/nullified. After all, if the Fifth Amendment contains an implicit equal protection clause whose scope is identical to the 14th Amendment's explicit equal protection clause (as Bolling and some later cases say), and if the 14th Amendment prohibits U.S. states from limiting their Governorships to natural-born U.S. citizens (note: this isn't an originalist argument), then one can easily argue that the Fifth Amendment implicitly repealed the natural-born citizen requirement for the U.S. Presidency. Indeed, this is where a consistent application of the principles of Bolling and modern equal protection jurisprudence leads to. In fact, Paul Clark even wrote an law review article about this very topic back in 2006:

https://repository.jmls.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1287&context=lawreview

Anyway, I certainly hope that you would respond to my comment here. Take care and best regards.

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Daniel
on June 04, 2018 at 19:25:57 pm

Daniel, thanks for your comment. Three years and one day after my own comment! :-) I will first answer your third question: “I’d like to see exactly which part of the 1866 Civil Rights Act forbids segregated schools.” Then in subsequent comments will address your other questions.

You’re correct that the following sentence was removed from the Civil Rights Act of 1866 during the drafting process: “there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of servitude.” One reason for the removal of this material was that Congress did not want to be understood as protecting political rights like the right to vote and the right to hold political office. Regarding non-political rights, the Civil Rights Act’s main sponsor in the House denied that removal of that sentence would reduce the bill’s protection of those rights. See CONG.GLOBE, 39th Cong., 1st Sess. 1366 (1866)(Congressman James F. Wilson said, “I do not think it materially changes the bill....”). See generally Steven G. Calabresi & Andrea Matthews, Originalism and Loving v. Virginia, 2012 B.Y.U.L.REV. 1393, 1446 (2012) (concurring with Congressman Wilson).

The Civil Rights Act of 1866 stated: “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to…. full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” A black student’s personal security in a classroom was thus guaranteed as much as any white student’s in that classroom, and no black student could be penalized for skin color. Granted, many states and local governments did not live up to those words in the Civil Rights Act, or disagreed with Congressman Wilson’s interpretation of them. But, many years later, Justice Robert Jackson wisely remarked, “even the North never fully conformed its racial practices to its professions.” What the Civil Rights Act professed is more important than whether it was obeyed.

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Andrew Hyman
on June 04, 2018 at 19:50:05 pm

Daniel, your second question was: “if the U.S. Congress would have never explicitly authorized the segregation of restrooms by sex (or by gender) in the schools and federal buildings in the District of Columbia, would that have meant that anyone of either gender (or either sex) would have been allowed to use whatever restroom he or she would have wanted to use in the schools and federal buildings in the District of Columbia?” Not necessarily.

Michael McConnell makes a good argument that, “[f]ederal courts should not presume that Congress has delegated the authority to depart from general principles of equal protection of the laws to subordinate agencies without a clear statement to that effect.” If he’s correct, then your question requires us to answer whether gender-specific bathrooms violate general principles of equal protection, like whether gender-specific bathrooms involve a fundamental right or target a suspect class, and if so whether the bathroom rule is narrowly tailored to address a compelling state interest such as protecting women's privacy or protecting women from violence. I don’t know for sure what the outcome of such an analysis would or should be, but I doubt that gender-specific bathrooms target either gender.

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Andrew Hyman
on June 04, 2018 at 20:11:27 pm

[Oops, my previous comment addressed your FIRST question, not your SECOND.]

Your second question mentions that I ignore Dolin’s point that, "in the absence of Bolling v. Sharpe, the U.S. government could set different naturalization rules for people of different races." I seem to recall that the U.S. has essentially done so in the past by limiting immigration based on national origin. From an originalist perspective, might that have been permissible? And might such permissibility be a problem for someone who is trying to sell originalism to the public? Yes, and yes.

The Supreme Court long ago said that the greatest security for fundamental rights "resides in the right of the people to make their own laws, and alter them at their pleasure." We could give the courts carte blanche to strike down all bad laws, or all very bad laws, but what if the electorate disagrees?

Thomas Jefferson once said to a colleague, "you seem ... to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privileges of their corps. Their maxim is ‘boni judicis est ampliare jurisdictionim,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective countroul."

Many other countries have no Bill of Rights at all. Former Australian Prime Minister John Howard argues against a bill of rights for that country because it would transfer power from elected politicians to unelected judges and bureaucrats. Of course, we in the US have a Bill of Rights including the Fifth Amendment's Due Process Clause, but just because our Bill of Rights allows judges to strike own particular kinds of very bad laws does not imply that they can strike down all very bad laws. I think our Bill of Rights is a happy medium between the Australian situation and the opposite extreme.

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Andrew Hyman
on June 05, 2018 at 19:20:55 pm

Sex-segregated restrooms are a form of symmetric discrimination which affects both sexes, though.

In December 1871, in response to Senator Joshua Hill, Charles Sumner talked about how symmetric race-based discrimination affects both races:

https://books.google.com/books?id=Y8OUECUmJmQC&pg=PA4&dq="on+both"+"does+the+inequality+to+which+the+senator+refers+operate?"&hl=en&sa=X&ved=0ahUKEwjCzoaG1L3bAhVTCTQIHQtDAqsQ6AEIKTAA#v=onepage&q="on%20both"%20"does%20the%20inequality%20to%20which%20the%20senator%20refers%20operate%3F"&f=false

The key phrase here is "On both." Similarly, sex-segregated restrooms are a form of inequality which affects both sexes.

Also, for what it's worth, the idea that women need to have private spaces where men cannot enter might itself be based on sexist stereotypes--such as that men are violent and dangerous and that women are delicate little flowers who need protection.

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Daniel
on June 05, 2018 at 19:26:10 pm

OK--so the removal of the "no discrimination in civil rights" phrase did not materially change the bill itself.

However, it is worth noting that James Wilson explicitly said that the 1866 Civil Rights Act will not require White and Black children to attend the same schools:

https://books.google.com/books?id=_2RNDwAAQBAJ&pg=PA334&dq=james+wilson+"same+schools"+balkin&hl=en&sa=X&ved=0ahUKEwiOzY7n073bAhW1ITQIHchlCogQ6AEIKTAA#v=onepage&q=james%20wilson%20"same%20schools"%20balkin&f=false

As you see, James Wilson said that going to school is not a civil right.

Likewise, in 1872, Senator Lyman Trumbull said that "[t]he right to go to school is not a civil right and never was." Indeed, here is the source for this statement (specifically the 1872 Congressional Globe):

https://books.google.com/books?id=5P3mAAAAMAAJ&pg=PA3189&dq=trumbull+"the+right+to+go+to+school+is+not+a+civil+right+and+never+was"&hl=en&sa=X&ved=0ahUKEwjOvbq01b3bAhWFLXwKHXrkCTIQ6AEILzAB#v=onepage&q=trumbull%20"the%20right%20to%20go%20to%20school%20is%20not%20a%20civil%20right%20and%20never%20was"&f=false

If both Wilson and Trumbull said that education falls outside of the scope of civil rights, what exactly are we to make of this?

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Daniel
on June 05, 2018 at 19:27:46 pm

Out of curiosity--do you believe that all wrongly decided U.S. Supreme Court rulings--such as the one person, one vote cases--should be completely overruled?

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Daniel
on June 05, 2018 at 19:29:55 pm

Why exactly is my comment here not showing?

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Daniel
on June 05, 2018 at 19:30:51 pm

Sex-segregated restrooms are a form of symmetric discrimination which affects both sexes, though.

In December 1871, in response to Senator Joshua Hill, Charles Sumner talked about how symmetric race-based discrimination affects both races:

https://books.google.com/books?id=Y8OUECUmJmQC&pg=PA4&dq="on+both"+"does+the+inequality+to+which+the+senator+refers+operate?"&hl=en&sa=X&ved=0ahUKEwjCzoaG1L3bAhVTCTQIHQtDAqsQ6AEIKTAA#v=onepage&q="on%20both"%20"does%20the%20inequality%20to%20which%20the%20senator%20refers%20operate%3F"&f=false

The key phrase here is "On both." Similarly, sex-segregated restrooms are a form of inequality which affects both sexes.

Also, for what it's worth, the idea that women need to have private spaces where men cannot enter might itself be based on sexist stereotypes--such as that men are violent and dangerous and that women are delicate little flowers who need protection.

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Daniel
on June 05, 2018 at 19:34:57 pm

I'm sorry that my comments here are so out of whack, but I previously made a response here which for some reason didn't get published.

Anyway, here goes:

Congressman James Wilson explicitly said that the 1866 Civil Rights Act will not require Black and White children to attend the same schools:

https://books.google.com/books?id=_2RNDwAAQBAJ&pg=PA334&dq=james+wilson+"same+schools"+balkin+brest&hl=en&sa=X&ved=0ahUKEwiJxdCy173bAhUSG3wKHex9BwEQ6AEIKTAA#v=onepage&q=james%20wilson%20"same%20schools"%20balkin%20brest&f=false

He said that "these are not civil rights or immunities."

Likewise, in 1872, Senator Lyman Trumbull said that "[t]he right to go to school is not a civil right and never was." Indeed, here is the source for this (it is the 1872 Congressional Globe):

https://books.google.com/books?id=5P3mAAAAMAAJ&pg=PA3189&dq=trumbull+"the+right+to+go+to+school+is+not+a+civil+right+and+never+was"&hl=en&sa=X&ved=0ahUKEwjOvbq01b3bAhWFLXwKHXrkCTIQ6AEILzAB#v=onepage&q=trumbull%20"the%20right%20to%20go%20to%20school%20is%20not%20a%20civil%20right%20and%20never%20was"&f=false

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Daniel
on June 05, 2018 at 19:35:50 pm

I'm sorry that my comments here are so out of whack, but I previously made a response here which for some reason didn't get published.

Anyway, here goes:

Congressman James Wilson explicitly said that the 1866 Civil Rights Act will not require Black and White children to attend the same schools:

https://books.google.com/books?id=_2RNDwAAQBAJ&pg=PA334&dq=james+wilson+"same+schools"+balkin+brest&hl=en&sa=X&ved=0ahUKEwiJxdCy173bAhUSG3wKHex9BwEQ6AEIKTAA#v=onepage&q=james%20wilson%20"same%20schools"%20balkin%20brest&f=false

He said that "these are not civil rights or immunities."

Likewise, in 1872, Senator Lyman Trumbull said that "[t]he right to go to school is not a civil right and never was." (Source: 1872 Congressional Globe.)

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Daniel
on June 05, 2018 at 19:37:10 pm

I’m sorry that my comments here are so out of whack, but I previously made a response here which for some reason didn’t get published.

Anyway, here goes:

Congressman James Wilson explicitly said that the 1866 Civil Rights Act will not require Black and White children to attend the same schools:

https://books.google.com/books?id=_2RNDwAAQBAJ&pg=PA334&dq=james+wilson+“same+schools”+balkin+brest&hl=en&sa=X&ved=0ahUKEwiJxdCy173bAhUSG3wKHex9BwEQ6AEIKTAA#v=onepage&q=james%20wilson%20″same%20schools”%20balkin%20brest&f=false

He said that “these are not civil rights or immunities.”

Likewise, in 1872, Senator Lyman Trumbull said that “[t]he right to go to school is not a civil right and never was.” (Source: 1872 Congressional Globe.)

What exactly should we make of these statements by Trumbull and Wilson?

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Daniel
on June 05, 2018 at 20:00:19 pm

Here are sources for the Trumbull quote:

https://books.google.com/books?id=X4y1tW65oCkC&pg=PA973&dq="the+right+to+go+to+school+is+not+a+civil+right+and+never+was."&hl=en&sa=X&ved=0ahUKEwjsx72y3b3bAhUljVQKHXjHA20Q6AEIKTAA#v=onepage&q="the%20right%20to%20go%20to%20school%20is%20not%20a%20civil%20right%20and%20never%20was."&f=false

https://books.google.com/books?id=5P3mAAAAMAAJ&pg=PA3189&dq="the+right+to+go+to+school+is+not+a+civil+right+and+never+was."&hl=en&sa=X&ved=0ahUKEwjsx72y3b3bAhUljVQKHXjHA20Q6AEINDAC#v=onepage&q="the%20right%20to%20go%20to%20school%20is%20not%20a%20civil%20right%20and%20never%20was."&f=false

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Daniel
on June 05, 2018 at 20:01:14 pm

Here is a sources for the Trumbull quote:

https://books.google.com/books?id=X4y1tW65oCkC&pg=PA973&dq="the+right+to+go+to+school+is+not+a+civil+right+and+never+was."&hl=en&sa=X&ved=0ahUKEwjsx72y3b3bAhUljVQKHXjHA20Q6AEIKTAA#v=onepage&q="the%20right%20to%20go%20to%20school%20is%20not%20a%20civil%20right%20and%20never%20was."&f=false

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Daniel
on June 05, 2018 at 20:02:00 pm

Here is a source for the Trumbull quote:

https://books.google.com/books?id=X4y1tW65oCkC&pg=PA973&dq="the+right+to+go+to+school+is+not+a+civil+right+and+never+was."&hl=en&sa=X&ved=0ahUKEwjsx72y3b3bAhUljVQKHXjHA20Q6AEIKTAA#v=onepage&q="the%20right%20to%20go%20to%20school%20is%20not%20a%20civil%20right%20and%20never%20was."&f=false

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Daniel
on June 05, 2018 at 20:12:25 pm

I am not expressing any opinion here about whether all bathrooms should be open to both genders (nor am I opining about any related issues involving transgender people who think that they ought to have a right to use a single-sex bathroom corresponding to their self-identification). I'm just saying that if the courts continue allowing state-owned buildings to have single-sex bathrooms, then Michael McConnell's test allows the local D.C. government to do the same without any action by Congress.

Many people argue that single-sex restrooms in state-owned buildings violate the Equal Protection Clause. For example:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2937718

But that view has not prevailed as of yet in the courts. And the courts do not treat gender discrimination the same way as racial discrimination; they apply "intermediate scrutiny" to the former but "strict scrutiny" to the latter. This is partly because women are not a minority.

Incidentally, my own view is that the Supreme Court has generally misinterpreted the Equal Protection Clause to deprive Congress of any substantive role in determining what state action violates that clause. See:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2468984

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Andrew Hyman
on June 05, 2018 at 20:34:16 pm

I don't pay much attention to post-enactment comments because a lot of them are political spin. The Civil Rights Act was passed in 1866, and the 14th Amendment was ratified in 1868, whereas Trumbull was speaking in 1872.

As for James F. Wilson, he had a relatively narrow view about what "civil rights" included, while other people like John Bingham had a much broader view (see the last paragraph on the page you linked to). I think a lot of the people involved in that 1866 debate would understand that education has become much more important and essential in our modern 21st century society, and thus is more likely to fall within the meaning of personal security. And, it's also possible that Wilson's comment about schools was more to get votes for the bill than to accurately explain what the bill actually said; this is why judges like Scalia pretty much disregarded statements by legislators during debate.

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Andrew Hyman
on June 05, 2018 at 20:47:03 pm

I am not expressing any opinion here about whether all bathrooms should be open to both genders (nor am I opining about any related issues involving transgender people who think that they ought to have a right to use a single-sex bathroom corresponding to their self-identification). I'm just saying that if the courts continue allowing state-owned buildings to have single-sex bathrooms, then Michael McConnell's test allows the local D.C. government to do the same without any action by Congress.

Many people argue that single-sex restrooms in state-owned buildings violate the Equal Protection Clause.

But that view has not prevailed as of yet in the courts. And the courts do not treat gender discrimination the same way as racial discrimination; they apply "intermediate scrutiny" to the former but "strict scrutiny" to the latter. This is partly because women are not a minority.

Incidentally, my own view is that the Supreme Court has generally misinterpreted the Equal Protection Clause to deprive Congress of any substantive role in determining what state action violates that clause. I wrote an article about it: The Substantive Role of Congress Under the Equal Protection Clause, 42 S.U.L. Rev. 79 (2014).

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Andrew Hyman
on June 05, 2018 at 20:54:46 pm

If you'd point to a specific case, then I'd be glad to answer. We were discussing application of equal protection principles to the federal government, whereas a case like Reynolds v. Sims was about state action rather than federal action. As I mentioned above, I don't think SCOTUS has properly excluded Congress from helping to determine what state action violates the Equal Protection Clause. Do you think that the Fifth Amendment rendered the United States Senate unconstitutional?

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Andrew Hyman
on June 06, 2018 at 01:52:27 am

Yes, Trumbull was speaking after the fact. However, my point here is that if Trumbull did not consider education to be a civil right in 1872, he is unlikely to have considered education to be a civil right in 1866. Indeed, please keep in mind that Trumbull was the author of the 1866 Civil Rights Act.

As for Wilson, while he appears to have had a narrower view of the 1866 Civil Rights Act than Bingham did, Wilson was the floor manager for this bill. Thus, one would think that his views should be given greater weight than those of Bingham.

Also, I'm well-aware that most originalists nowadays advocate original public meaning (or, alternatively, original public understanding). In turn, this raises an interesting question--did the supporters of the 1866 Civil Rights Act (among the general population) view this act as desegregating the schools of the District of Columbia? Or, alternatively, did the supporters of this act (among the general public) foresee that this act would eventually be used for this purpose?

Frankly, if I were an originalist (I'm not, but I do strongly respect original public understanding originalism), I would think that the people should be properly informed about what a bill or a constitutional amendment does. Indeed, if the people (specifically the supporters of a bill or constitutional amendment among the general public) will fail to understand that a bill or a constitutional amendment does something, then this application of this bill or constitutional amendment should be precluded.

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Daniel Gonik
on June 06, 2018 at 13:50:37 pm

My main point is that the FACTS have changed a lot since the 1860s even though the LAW has not changed. First, education has become vastly more important to succeed in the world. Second, “separate but equal” schools have been exposed as largely a myth, with the reality being that separate black public schools have been shown to almost always be inferior. Third, the psychological harm of racial discrimination has become medically detectable and recognized. All of these new facts have put segregated schools squarely within the prohibitions of the Cuvil Rights Act of 1866, particularly regarding personal security as well as pains and penalties. Originalism says the meaning of federal statutes doesn’t change until Congress changes them; Originalism doesn’t say that other facts about the world don’t change.

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Andrew Hyman
on November 01, 2018 at 00:36:32 am

'@Andrew: In regards to the U.S. Senate question, it's probably possible to make a case that the Fifth Amendment implicitly requires the U.S. Senate to be apportioned based on population. However, here's the catch--the Seventeenth Amendment explicitly states that all U.S. states will have two U.S. Senators. There's nothing in the U.S. Constitution beyond the 17th Amendment which either explicitly or implicitly contradicts what the 17th Amendment says about this topic. Thus, I think that the 17th Amendment should be controlling here.

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Daniel

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