Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The following essay was submitted by Cass R. Sunstein, the Robert Walmsley University Professor at Harvard University.
Cass R. Sunstein*
Abstract
In Bolling v. Sharpe, the Supreme Court struck down a federal statute segregating the schools in the District of Columbia. The Equal Protection Clause is inapplicable to the national government, and the Court relied on the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe has been followed by many cases that find an “equal protection component” to the Due Process Clause of the Fifth Amendment (“reverse incorporation”). These cases are impossible to defend on originalist grounds, and they are exceptionally challenging to defend on textualist grounds. They are best understood as an embodiment of “living constitutionalism” or some related approach (potentially including common good constitutionalism). Dobbs v. Jackson Women’s Health Center, overruling Roe v. Wade, adopts an interpretation of the Due Process Clause of the Fourteenth Amendment, rooted in a combination of text, originalism, and tradition, that generally sets itself against living constitutionalism or related approaches, and that is incompatible with the approach in Bolling and successor cases. Under the approach in Dobbs, discrimination on the basis of race and sex, or on any other ground, should be subject to rational basis review (at most) – and should frequently be upheld. If this is an unacceptable conclusion, it is a strong point for Bolling and against the approach in Dobbs, at least under one view about how to choose a theory of constitutional interpretation.
I. An Earthquake
Uh oh.
For constitutional theory, Bolling v. Sharpe[1] has always been a bit of a puzzle,[2] 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.[3] 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,[4] 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.”[5] 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,[6] and because the Supreme Court upheld segregation in 1896[7] and did not strike it down until 1954 (under the Equal Protection Clause).[8] Racial segregation was both practice and permissible for about a century.[9] 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 Bolling, Dobbs is an earthquake.
II. “Our American Ideal of Fairness”
As a technical matter, Bolling was a hard case, and the Court was keenly aware of the challenge that it faced. In noting the problem, the Court’s words belong in the annals of judicial understatement: “We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however.”[10] The reason that it is somewhat (!) different is that the Fourteenth Amendment, which contains the Equal Protection Clause, applies only to the states, not to the national government. It is challenging indeed, on originalist or even textualist grounds, to defend the argument that the national government is forbidden from engaging in racial discrimination.
Before Bolling, the Court frequently noted that the Fifth Amendment “contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.”[11] The Court was certainly aware of the relevant cases.[12] It announced that “the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive.” (It is worth underlining the emphasis on “our American ideal of fairness,” a phrase that seem to come from a different jurisprudential universe from that of Dobbs.) The Equal Protection Clause “is a more explicit safeguard of prohibited unfairness” than the Due Process Clause, but still, “discrimination may be so unjustifiable as to be violative of due process.” Indeed, “[c]lassifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect.”
As the Court understood it, “The term ‘liberty,’ in the Due Process Clause, is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.”[13] When liberty is at stake, what is needed is such an objective. Because “[s]egregation in public education is not reasonably related to any proper governmental objective,” it amounts to “an arbitrary deprivation of their liberty in violation of the Due Process Clause.”[14] And then the Court added what is plausibly the most important and revealing sentence in its very short opinion: “In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”[15]
Is that “unthinkable”? In one sense, it might be. Brown was expected to be exceedingly controversial, and it was. The Court might well have thought that it would be “unthinkable” for the Constitution to forbid Southern states from mandating racial segregation – while simultaneously allowing Congress to do exactly that. The Court might well have thought that such a difference would diminish the moral authority of Brown. This is a point about public reception and hence legitimacy in the sociological sense. There is a separate point about legitimacy in the moral sense. The constitutional ban on racial segregation was widely perceived to be a moral imperative. Would it be thinkable to say that the states could not segregate schools, but that Congress could do exactly that?
For a unanimous Supreme Court, these points appeared decisive, and understandably so. But it is not exactly unthinkable to suggest that certain constitutional restrictions, imposed on the states, should not be imposed on the national government. We might think that at the national level, there are relevant safeguards, and perhaps imperatives, that do not apply at the state level. We can easily imagine the following view from the Reconstruction Congress: The Southern states cannot be trusted; they have shown themselves capable of engaging in actions against which the Constitution needs to guard. The national government stands on a different footing.[16]
Bolling has been roundly criticized.[17] Why, exactly, did the Court read liberty so broadly? Under what theory of interpretation did the Court adopt that reading? Why and when is discrimination a violation of due process? And what undergirds the conclusion that segregation is an arbitrary deprivation of liberty? As Justice Thomas has noted, “Bolling made clear that it was applying this Court’s ‘substantive due process’ doctrine,”[18] and “the Fifth Amendment’s text and history provide little support for modern substantive due process doctrine.”[19] Robert Bork wrote more bluntly: “Had the Court been guided by the Constitution, it would have had to rule that it had no power to strike down the District’s laws. . . . Bolling, then, was a clear rewriting of the Constitution by the Warren Court.”[20] John Hart Ely put it most memorably: Bolling “is gibberish both syntactically and historically.”[21]
As a reading of the Constitution’s text, Bolling is indeed challenging to defend. The Due Process Clause of the Fifth Amendment certainly does not read like a prohibition on discrimination on the basis of race. As Ely noted, due process, “read responsibly, means due process.”[22] According to a standard view, the Due Process Clause is a purely procedural safeguard, giving people a right to some kind of hearing before they are deprived of life, liberty, or property.[23] To that extent, the clause has nothing to do with segregation at all. Indeed, a careful analysis of the relevant history finds that the Due Process Clause of the Fifth Amendment does not even create a general right to a hearing, and that it is more narrowly a requirement of some kind of notice.[24] And if due process of law included an “equal protection component,” it is very hard to explain why the Fourteenth Amendment includes both the Due Process Clause and the Equal Protection Clause. If it does, isn’t one or the other redundant?[25]
As a matter of originalism, Bolling is impossible to defend, at least if it is taken as a reading of the Due Process Clause of the Fifth Amendment.[26] So taken, it might even be seen as preposterous. Bolling is best understood as reflecting an emphatically moral reading of the Due Process Clause,[27] one that is not frozen in time. As evidence and support, consider these words from Justice Felix Frankfurter in a private memorandum from 1953, during the Court’s deliberations about school segregation:
But the equality of the laws . . . is not a fixed formula defined with finality at a particular time. It does not reflect, as a congealed summary, the social arrangements and beliefs of a particular epoch. It is addressed to the changes wrought by time and not merely the changes that are the consequences of physical development. Law must respond to transformations of views as well as that of outward circumstances. The effects of changes in men’s feelings for what is right and just is equally relevant in determining whether a discrimination denies the equal protection of the laws.
Frankfurter was speaking of the Equal Protection Clause, of course, but the same ideas might well be applied to the Due Process Clause: “Law must respond to transformations of views as well as that of outward circumstances.” That, in fact, is the foundation of Bolling (as it is the foundation of many substantive due process cases in the modern era).[28]A great deal of work would be needed to specify the underlying theory. Frankfurter himself appeared to be speaking of “living constitutionalism”; other approaches, including common good constitutionalism, might support Bolling.
Bolling is not, of course, an isolated decision. Over the decades, it has come to stand for the idea of “reverse incorporation,” embodied in the proposition that the Due Process Clause contains an “equal protection component,” which means that the federal government is essentially subject to the constraints of the Equal Protection Clause, whether it is discriminating on the basis of race,[29] sex, citizenship,[30] sexual orientation, or any other ground.[31] Sex discrimination in particular has been scrutinized and struck down essentially under the theory of Bolling.[32] The same is true of affirmative action programs.[33]
III. Text and Tradition: The Limits of Due Process
In overruling Roe v. Wade,[34] the Dobbs Court combined textualism, originalism, and traditionalism. The text definitely mattered to the Court’s analysis: “Constitutional analysis must begin with ‘the language of the instrument,’ which offers a ‘fixed standard’ for ascertaining what our founding document means.”[35] The Court found it important that the “Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including . . . the Due Process Clause of the Fourteenth Amendment.”[36]
At the same time, the Court acknowledged that the Due Process Clause “has been held to guarantee some rights that are not mentioned in the Constitution,” but stated that its reach is limited to rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”[37] Pointedly, the Court emphasized that the very idea of “substantive due process,” by which the due process clause extends beyond procedural guarantees, “has long been controversial.”[38] At the same time, the Court acknowledged that the Court’s decisions have protected two categories of substantive rights. Both categories are, in the Court’s view, to be understood directly by reference to tradition.
The first category consists of rights guaranteed by the first eight amendments. The Due Process Clause has long been understood to “incorporate” most of those rights and thus to apply them to the states; the Dobbs Court takes the relevant cases as given and raises no questions about them. The second category consists of “a select list of fundamental rights that are not mentioned anywhere in the Constitution.”[39] According to the Court, this list is limited to those that are deeply rooted in tradition and essential to our nation’s “scheme of ordered liberty.”[40] Noting that “the Constitution makes no mention of abortion,”[41] the Court emphasized that for purposes of evaluating Roe, the second category—the “select list of fundamental rights that are not mentioned”—is the relevant one.[42]
But crucially, the Court urged that the analysis of the two categories is essentially the same. In the context of incorporation of the bill of rights, the Court’s decisions have emphasized traditions. In cases involving excessive fines and the right to keep and bear arms, the Court paid exceedingly close attention to practices at the time of ratification, and thus the Court rooted its incorporation holdings in “relevant historical evidence.”[43] With respect to incorporation itself, this is a form of due process traditionalism, with a strong originalist theme.[44] In the Court’s view, “it would be anomalous if similar historical support were not required when a putative right is not mentioned anywhere in the Constitution.”[45]
This is a key claim, and the Dobbs Court was very far from the first to offer it. Similar ideas have occasionally played a role in the Court’s rulings.[46] In the Michael H. case, Justice Scalia, for a plurality, argued that careful consideration of specific traditions ensures that judges will remain faithful to “the society’s views.”[47] Justice Scalia wanted to ask whether there is a specific tradition in support of (say) a right to send one’s child to a private school, not whether there is an abstract tradition on support of (say) freedom of choice. Justice Scalia urged that the problem with general readings of traditions is that they provide “such imprecise guidance, they permit judges to dictate rather than discern the society’s views.”[48] And if judges are not bound “by any particular, identifiable tradition,” they are not bound by the “rule of law at all.”[49]
In refusing to recognize a right to assisted suicide in the Glucksberg case, the Court emphasized that such a right was not “objectively, deeply rooted in this Nation’s history and tradition.”[50] There is a direct line from the plurality opinion in Michael H. to Glucksberg to Dobbs, and at least some of the incorporation cases support the central idea. Notably, Glucksberg seemed, until Dobbs, to be a failed effort to entrench due process traditionalism, an outlier superseded by Lawrence, protecting the right to same-sex sodomy, and Obergefell, protecting the right to same-sex marriage; Glucksberg is back.
According to the Dobbs Court, one reason for limiting the term “liberty” in these ways is that the term is “capacious,” and there is a “natural human tendency to confuse” what the Fourteenth Amendment “protects with our own ardent views about the liberty that Americans should enjoy.”[51] With that point in mind, “the Court has long been ‘reluctant’ to recognize rights that are not mentioned in the Constitution.”[52] Unless it respects “the teachings of history,” the Court notes, the justices could well fall “into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York.”[53]
Does the abortion right find support in “relevant historical evidence”? According to the Dobbs Court, it does not. Until late in the twentieth century, “there was no support in American law for a constitutional right to obtain an abortion.”[54] In every state, “abortion had long been a crime.”[55] The common law made abortion “criminal in at least some stages of pregnancy,” and in the 1800s, American law “expanded criminal liability for abortions.”[56] When the Fourteenth Amendment was adopted, “three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining states would soon follow.”[57] The Dobbs Court offered a great deal of detail in an effort to support these historical claims.
IV. The Problem
If the reach of substantive due process is limited in the way suggested by Dobbs, it is difficult to see how Bolling can stand. The whole idea of reverse incorporation, or of an equal protection component to the Due Process Clause of the Fifth Amendment, might be seen as a kind of constitutional barnacle. We might, of course, suggest that there is a difference between the Due Process Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment. That is certainly possible. But it is hard to see how the reach of the latter could be broader than that of the former. On textual grounds, they are the same; on originalist grounds, it is the reach of the former that should be greater.[58] How, then, should we understand Bolling, and the idea of reverse incorporation, after Dobbs?
The simplest answer would rely on stare decisis. Bolling was decided nearly seventy years ago, and for decades, it has been settled law that the Due Process Clause has an equal protection component. It is one thing to overrule Roe v. Wade; it would be quite another to overrule a large number of cases that have become central to contemporary constitutional law. The challenge, of course, would be to rely on stare decisis alone, without giving any sense of why the idea of reverse incorporation is not egregiously wrong.
A more complicated answer would emphasize a part of Bolling that is perhaps not sufficiently appreciated, and that might not be entirely inconsistent with the analysis in Dobbs. It is the Bolling Court’s emphasis on the need to show—to survive scrutiny under the Due Process Clause—that government action is “reasonably related to” to a “proper governmental objective,” and its conclusion that because school segregation is not reasonably related to any such objective, it amounts to “an arbitrary deprivation of their liberty in violation of the Due Process Clause.”[59] Might that aspect of the Court’s opinion survive Dobbs? Dobbs does make space for substantive due process insofar as it requires “rational basis” review, even for abortion restrictions.
As the Court put it, “rational-basis review is the appropriate standard,” which means that a restriction will be upheld “if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”[60] With respect to abortion, the “legitimate interests include respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.”[61]
Could racial segregation be stuck down under rational basis review? There is an argument that it could be. Perhaps it is not connected with any kind of legitimate interest. As the Court has said, “[i]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”[62] Perhaps racial segregation could be characterized as reflecting “a bare desire to harm a politically unpopular group.” But if so, there is a question whether we are dealing with rational basis review in its standard form. In that form, rational basis review is highly deferential, and almost everything is upheld.[63]
Plessy v. Ferguson was overruled in Brown, of course, and it should not be cited with approval, but it is noteworthy that in using a precursor of rational basis review, it spoke in terms akin to those in Dobbs:
So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.[64]
Simply as a matter of historical fact, the Court’s reference to the “established usages, customs, and traditions of the people” is in evident tension with the suggestion in Bolling that “[c]lassifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect.”[65] As a matter of history, Bolling did not exactly get it right. Racial classifications have a long history in the United States;[66] it would be hard to argue that they are new, or a kind of French Revolution. In any case, and whatever we think about rational basis review as applied to school segregation, it is clear that many cases involving discrimination by the national government would have to be resolved in favor of the government if rational basis review were the appropriate test.
Alert to the difficulty of defending Bolling in its own terms, some people have urged that the outcome might be justified by reference to the Citizenship Clause of the Fourteenth Amendment.[67] That Clause reads as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”[68] The obvious (and minimal) function of the Citizenship Clause is to overrule Dred Scott: regardless of skin color or race, those who are born or naturalized in the United States count as “citizens.” At first glance, the Citizenship Clause does not create an independent or freestanding equality principle. At second glance, it is not easily read to create an independent or freestanding equality principle, for one simple reason: it is followed in short order by the Equal Protection Clause. If the Citizenship Clause already imposes an equality requirement, what is the Equal Protection Clause doing there?
We might be able to reduce the problem of redundancy if we emphasize that the Equal Protection Clause was understood as an effort not to create a general equality principle, but to solve the specific problem of unequal protection of the laws – as, for example, if the authorities protected white people, but not Black people, from criminal violence.[69]But even if that view is plausible (and it is[70]), then the Privileges or Immunities Clause, and not the Citizenship Clause, is more naturally taken as the general antidiscrimination principle of the Fourteenth Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”[71] The Privileges or Immunities Clause, of course, applies only to the states. For this reason, it is reasonable (1) to take the Citizenship Clause as establishing only what it purports to establish, and not to serve as a general source of substantive rights or as a general equality principle; (2) to take the Equal Protection Clause as requiring, well, equal protection; and (3) to take the Privileges or Immunities Clause as protecting a set of substantive rights and as forbidding discrimination with respect to their enjoyment.
To be sure, some portions of the relevant debates might be taken to suggest a broader role for the Citizenship Clause, and I do not mean to settle the question with this very compressed discussion.[72] The only point is that it is difficult indeed to defend, all of a sudden and essentially now, the conclusion that the relevant statements are enough to suggest that the Citizenship Clause contains a broad equality guarantee, sufficient to support Bolling (let alone its successors).
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.[73]
* Robert Walmsley University Professor, Harvard University.
[1] 347 U.S.497 (1954).
[2] See, e.g., Richard A. Primus, Bolling Alone, 104 Colum. L. Rev. 975 (2004); Gregory Dolin, Resolving the Original Sin of Bolling v. Sharpe, 44 Seton Hall L. Rev. 749 (2014); Ryan Williams, Originalism and the Other Desegregation Decision, 99 Va L Rev 493 (2013).
[3] 347 U.S. 497 (1954).
[4] Dobbs v. Jackson Women’s Health Org., No. 19-1392, slip op. (U.S. June 24, 2022).
[5] Id. at *5.
[6] See John Hope Franklin, History of Racial Segregation in the United States, 304 Annals Am. Acad. Pol. & Soc. Sci. 1 (1956).
[7] Plessy v. Ferguson, 163 U.S. 537 (1896).
[8] Brown v. Board of Education, 347 U.S. 483 (1954).
[9] And slavery, of course a form of discrimination, dates back far longer.
[10] 347 U.S. at 498.
[11] Detroit Bank v. United States, 317 U. S. 329, 337 (1943); see also LaBelle Iron Works v. United States, 256 U. S. 377, 392 (1921).
[12] I am bracketing the puzzles raised by Hirabayashi v. United States, 320 U. S. 81 (1943) and Korematsu v. United States, 323 U.S. 214 (1944), where the Court did not much grapple with the text of the Constitution, or the original understanding, in suggesting that discrimination by the federal government at least raises constitutional questions. Thus the Court said this in Korematsu: “It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. . . . Korematsu was not excluded from the Military Area because of hostility to him or his race.” (From the standpoint of an originalist Court, a traditionalist Court, or a Court skeptical of substantive due process, the question is: Why?) As the Court had it, “Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” (From the standpoint of an originalist Court, a traditionalist Court, or a Court skeptical of substantive due process, the question remains: Why?)
[13] Bolling, 347 U.S. at 499-500.
[14] Id. at 500.
[15] Id.
[16] See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 33 (1980).
[17] See, e.g., Ely, supra note 14 at 32; Richard A. Primus, Bolling Alone, 104 Colum. L. Rev. 975, 977 n.7 (2004); Peter J. Rubin, Taking its Proper Place in the Constitutional Canon: Bolling v. Sharpe, Korematsu, and the Equal Protection Component of Fifth Amendment Due Process, 92 Va. L. Rev. 1879, 1880 (2006); Lino A. Graglia, Constitutional Law: A Ruse for Government by an Intellectual Elite, 14 Ga. St. U. L. Rev. 767, 773–74 (1998) (citing Bolling as an example of “[t]he irrelevance of the Constitution to constitutional law”).
[18] United States v. Vaello Madero, 142 S. Ct. 1539, 1545 (2022) (Thomas, J., concurring).
[19] Id.
[20] Robert H. Bork, The Tempting of America 83 (1990).
[21] Ely, supra note 16, at 32.
[22] Id. at 33. An interesting and valuable response can be found in Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment (2021), but their focus is on the Due Process Clause of the Fourteenth Amendment, not the Fifth.
[23] See Ely, supra note 16.
[24] Lawrence B. Solum & Max Crema, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. 447 (2022).
[25] A valuable effort to sort out the meanings of the various provisions of the Fourteenth Amendment is Barnett & Bernick, supra note 21.
[26] See, e.g., Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale L.J. 408, 428–59 (2010) (examining evidence indicating that the public understanding of the Fifth Amendment’s Due Process Clause in 1791 likely did not encompass substantive rights). On originalism in general, see Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B.U. L. Rev. 1953 (2021); Lawrence B. Solum, The Constraint Principle 81 (2018).
[27] On moral readings, see Ronald Dworkin, Freedom’s Law (1993).
[28] See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 576 U.S. 644 (2015); Cass R. Sunstein, How To Interpret the Constitution (unpublished manuscript 2022).
[29] Fullilove v. Klutznick, 448 U.S. 448 (1980); Adarand Constructors v. Pena, 515 U.S. 200 (1995).
[30] See, e.g., Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572 (1976) (Puerto Rico statutory restriction of civil engineering licenses to U.S. citizens); Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (regulation excluding noncitizens, including lawfully admitted resident aliens, from employment in the federal competitive civil service); Schneider v. Rusk, 377 U.S. 163 (1964) (act stripping nationality from naturalized citizens for residing continuously in territory of their birth or former nationality).
[31] See, e.g., Jimenez v. Weinberger, 417 U.S. 628 (1974) (Social Security benefits for illegitimate children of “disabled wage-earner parent” contingent on parent’s having contributed to child’s support or having lived with child prior to disability).
[32] See, e.g., Califano v. Westcott, 443 U.S. 76 (1979) (provision of benefits to families with children with unemployed fathers but not to those with unemployed mothers); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (Social Security benefits payable to widows but not widowers on the basis of their deceased spouses’ earnings); Frontiero v. Richardson, 411 U.S. 677 (1973) (requirement that female but not male members of armed forces establish spousal dependency in order to claim benefits).
[33] Fullilove v. Klutznick, 448 U.S. 448 (1980); Adarand Constructors v. Pena, 515 U.S. 200 (1995).
[34] 410 U.S. 113 (1973).
[35] Dobbs, No. 19-1392, slip op. at *9.
[36] Id. at *5.
[37] Id.
[38] Id. at *11.
[39] Id. at *10.
[40] Id. at *10.
[41] Id. at *5.
[42] Id. at *12.
[43] Id. at *11.
[44] See Cass R. Sunstein, Due Process Traditionalism, 106 Mich. L. Rev. 1543 (2008).
[45] Dobbs, No. 19-1392, slip op. at *11.
[46] See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997); Michael H. v. Gerald D., 491 U.S. 110, 122-24 (1989); Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977).
[47] Michael H., 491 U.S. at 127 n.6.
[48] Id.
[49] Id.
[50] Glucksberg, 521 U.S. at 703.
[51] Dobbs, No. 19-1392, slip op. at *11.
[52] Id.
[53] Id.
[54] Id. at *12.
[55] Id.
[56] Id.
[57] Id.
[58] Lawrence B. Solum & Max Crema, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. 447 (2022).
[59] Bolling, 347 U.S. at 500.
[60] Dobbs, No. 19-1392, slip op. at *77.
[61] Id. at *78.
[62] See Romer v. Evans, 517 U.S. 620 (1996); see also Department of Agriculture v. Moreno, 413 U.S. 528 (1973).
[63] See Ferguson v. Scrupa, 372 U.S. 726 (1963); Williamson v. Lee Optical, 348 U.S. 483 (1955).
[64] 163 U.S. 537, 550-51 (1896).
[65] 347 U.S. at 499.
[66] See Franklin, supra note 4.
[67] Williams, Originalism, supra note 2; Dolin, supra note 2.
[68] U.S. Const. amend. XIV § 1.
[69] See Barnett & Bernick, supra note 21.
[70] Id.
[71] For a valuable discussion, see id.
[72] See Dolin, supra note 1. Williams’ comprehensive analysis ends honestly and cautiously, with the suggestion that “a comprehensive originalist defense of Bolling would require proof that public education fell within the class of interests to which the citizen-equality principle would have been understood to extend and that racial segregation in public schools should be understood to deny equality in a constitutionally relevant way.” Williams,supra note 1, at 600.
[73] See Richard H. Fallon, Arguing In Good Faith About the Constitution, 84 U. Chi. L. Rev. 123 (2017); Cass R. Sunstein, “Fixed Points” and Constitutional Theory (unpublished manuscript 2022); Cass R. Sunstein, How to Interpret the Constitution (unpublished manuscript 2022). It is possible, of course, to have views in accordance with which unacceptable or horrifying outcomes are essentially irrelevant. It is also possible to think that a view of constitutional interpretation should be embraced even if it allows for some unacceptable or horrifying outcomes, because it does so much else that is good.
