Ken Levy, an associate professor of law at Louisiana State University, recently took to the pages of the New York Times to lend his voice to the fevered, en vogue, and media-driven fusillades against Supreme Court nominee Judge Neil Gorsuch and his judicial philosophy: originalism. He also echoed Senator Diane Feinstein who, last week, smeared Gorsuch’s originalism as a “really troubling” judicial philosophy.
The first mistake Levy makes is in not understanding the originalism he sets out to criticize, and he proves this ignorance when he says that originalism is about “genuinely following the Founders’ intent.” This is not what serious originalists understand originalism to be—just ask Georgetown law professor Randy Barnett. What it’s really about is determining the original public meaning of constitutional language and provisions, i.e., what the words meant when they were written.
But Levy goes on to one-up that first display of ignorance by smearing Judge Gorsuch, associating him and his method of constitutional interpretation with one of the most foul and incorrect Supreme Court decisions ever penned—Plessy v. Ferguson (1896)—and then implying that originalism lacks the justificatory intellectual resources to have prevented Plessy and will therefore also permit or even hasten into being future ghastly decisions of that very sort.
Here is the substance of his claim: If the Court in Brown v. Board of Education (1954) had followed “the text of the equal protection clause as it was understood by the ratifiers (the 39th Congress) it would have had little choice but to affirm Plessy.” Set aside for a moment that this characterization of originalism is a straw man that has been ably taken apart by Barnett and many others and focus instead on the substance of his claim: that originalism requires—or is it at least wholly unable to prevent—vile decisions like Plessy; worse, it cannot give us good decisions like Brown. (We may as well go for the trifecta and say it probably had something to do with Dred Scott, too.)
But this is rubbish. The 14th Amendment absolutely is designed to prevent exactly the sort of “separate but equal” nonsense-cum-wickedness given to us by the non-originalist Plessy Court.
Immediately after it confers citizenship on “[a]ll persons born or naturalized in the United States,” the 14th Amendment cabins state action—“No state shall make or enforce any law …”—pursuant to protecting said citizens’ (1) privileges and immunities, (2) right to life, liberty, and property, and (3) right to be equally protected by the laws. At issue in Plessy is a Louisiana railway car law which mandated separate railway cars for whites and blacks. This is a blindingly clear case of state-mandated discrimination, and a plain reading of the text of the amendment makes it equally obvious that such state-sanctioned discrimination is inimical to the purpose of the 14th Amendment (to say nothing of the private discrimination Congress attempted to stamp out with the passage of the Civil Rights Act of 1875). And yet the Court ruled in Plessy that “separate but equal” facilities established by law were constitutional. How can this be?
It’s simple, really. The outcome and logic in Plessy were unfaithful to any reasonable construal of originalism vis-à-vis the 14th Amendment. In addition to referencing Justice John Marshall Harlan’s powerful and compelling dissent in the Plessy case, we know this because of a case that was decided before the ratification of the 14th Amendment—a case which revealed Congress’ intended scope for the amendment and its goals for Reconstruction: Railroad Company v. Brown (1873).
In that case, the Court found that the practice that the Alexandria and Washington Railroad Company had of segregating its cars based on race (in direct defiance of Congress’ 1863 directive, a directive that proscribed any person’s being “excluded from the cars on account of color,” and in precisely the same manner as the Louisiana law at issue in Plessy would later mandate) was nothing more than “an ingenious attempt to evade a compliance with the obvious meaning of the requirement” and that the “temper of Congress at the time” made it obvious that this type of discrimination was “unjust” and therefore unconstitutional.
Congress placed that restriction on the railroad company in 1863, five years before the ratification of the 14th Amendment. To suggest that the 14th Amendment would not have come to embody a logic similar to this 1863 directive and entail a similar outcome is a difficult, if not impossible, circle to square.
Moreover, the question of whether railway cars could be segregated based on race without violating the 14th Amendment also arose in debates over an 1870 school desegregation bill advanced by Massachusetts Senator Charles Sumner, a bill that postdated the ratification of the 14th Amendment.
Senator Joshua Hill of Georgia, an exponent of segregation, explicitly argued that railroads should be permitted to segregate their passengers by race “provided all the comfort and security be furnished to passengers alike.” Proponents of the bill, however, found Sen. Hill’s position risible. They asserted that the notion that color and race could be reasons for distinctions among citizens was “a slave doctrine.”
Evidence that antedates and postdates the existence of the 14th Amendment makes it clear that it was obviously intended to nullify laws like Louisiana’s and, by extension, rulings like Plessy.
Levy’s laying Plessy and all manner of other judicial sins at the feet of Gorsuch and his originalism is grossly irresponsible, brings dishonor to the legal academy, and indicates that when he and his ilk attack Judge Gorsuch they are engaged more in wishful thinking than they are in reasoned argument.
After all, it’s much easier to casually tar one’s forebears—especially when they represent a political party that is positively despised in your professional community—as disgusting bigots than it is to be intellectually honest. I have no idea if Levy is a progressive, leftist, or member of the Democratic Party. But he certainly seems to share the Left’s inability to debate without resorting to flinging loaded rhetorical slurs.
The Court, as it so often does when it seeks to be a “super legislature” or a supremacist institution, just got it wrong in Plessy—as Justice Harlan in his superb dissent in that case made clear. Indeed, Plessy—and Dred Scott before it—are great examples of the ways in which the Court can err. The Court is not the final word on the Constitution as so many today on the Left seem to think it is when it is advancing the cause of Progressivism. Bad precedent can and should be overturned. The Senate should confirm Gorsuch immediately and ignore Prof. Levy’s anachronistic, incorrect, anti-GOP, and anti-originalist shrieks. Gorsuch’s originalism is all that stands between We the People and another disaster like Plessy.