Originalism and Equal Protection
Equal protection doctrine may supply at least a partial answer to whether the constitution protects unenumerated rights when the Glucksburg test falls short.
Rights enjoyed by the majority are in peril less often in a democracy because the ballot box supplies the response to infringements. Minorities cannot protect themselves in the same way. Equal protection fills in the gap. Straight people have a right to marry? Well then so do gay people.
But originalism rears its ugly head. Those who ratified the Fourteenth Amendment clearly did not intend to constitutionally protect gay marriage, and arguably didn’t intend to protect inter-racial marriage or indeed perhaps racial integration at all.
And it is sometimes argued that this point proves the indefensibility of originalism. Respectable originalists do not wish to jettison Brown v. Board, yet surely by their own logic they must if segregation was accepted at the time the Equal Protection Clause was ratified, which it unquestionably was.
I don’t necessarily agree, because people in the past were just as fallible as we are today and failed to live up to their best ideals, just like we do. Or, to put it differently, people in 1868 could and did pass or ignore unconstitutional laws just like we can and do today. That a law was on the books at or soon after the time a constitutional provision was ratified does not make the law constitutional, ipso facto.
We should disaggregate the principle from the application. The concept of equal protection as understood then and now I would argue is that the law should, other factors being equal, treat people the same. The fact those who wrote the Fourteenth Amendment failed to live up to that ideal in certain cases because of unexamined prejudices does not mean that we must also do so.
In addition, we may learn things with experience that those in the past did not know. Separate but equal might not be inherently discriminatory, for example, if the races were actually treated equally.1 In fact separate facilities are still utilized today between the sexes in appropriate circumstances without much constitutional difficulty.2 But what we learned from Jim Crow is that, as applied to the race, state mandated segregation is inevitably discriminatory in practice.
The problem with Plessy, in other words, was not necessarily its reasoning, abstractly speaking, but rather its willful blindness to the facts on the ground. Brown then can be understood as a correct application of equal protection as originally understood, in light of subsequently learned facts.
But, as to those originalists who argue we must slavishly3 apply the constitution just as those who ratified it would if they were somehow anachronistically standing in our shoes, I agree with Professor Dorf that Brown proves their incoherence.
I don’t mean to imply that racial segregation would be a good idea, as a policy matter. I emphatically don’t believe so. This discussion addresses only the constitutional logic.
Transgender individuals are currently mounting a kind of attack on sex segregated facilities, but their attack, as I understand it, is distinct. They do not challenge the concept of sex segregated facilities per se. Indeed, their challenge seems to presuppose them. Rather they appear to contest which class they are a member of.
Pun intended.