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Thursday, March 03, 2005

But What of the Equal Protection Clause?

I very much enjoy T. More's post below on originalism, but have one point that I want to address and hope that he will respond to. Professor Primus pointed out, and I have elsewhere indirectly addressed an area where Thomas and Scalia are peculiarly and obviously not originalists--namely the equal protection clause. Here they fall into the same trap that the other justices live in where they depart from the text and original intent in an attempt to craft a workable solution given competing concerns and values.

What accounts for this inconsistency? I can't believe that this is merely Justices Scalia and Thomas being fallible the way T. More describes below. Such an explanation seems to work well for individual cases, but not for whole areas of constitutional jurisprudence. Or, maybe they both initially ruled this way, and now feel bound by their earlier reasoning to keep upholding a rigid and nonsensical view. I don't know.

If I were a Scalia/Thomas-hater, I would argue that this is proof that these two are pragmatists just like the rest of the court. They have the unique benefit of agreeing with the racist, chauvenist, states-loving founders on almost every issue, and adopt originalism to effectuate those results. On the issue of equal protection, they do not agree as strongly with the crafters of the amendment, and so they depart from the original purpose--eradicating discrimination, not barring affirmative action.

Maybe the explanation is just what T. More suggests, that this is an area, perhaps the biggest area, where the two superstars are just plain pragmatists. And I guess that's fine; nobody's perfect.

The problem I see is that we're now engaging in line-drawing--there are areas where the original intent is important and areas where we need to adopt a more dynamic interpretation. We can no longer claim that we follow Wechsler's neutral principles, since we are departing in an area where the originalist interpretation gives us an unfavorable outcome.

You may agree that the line is drawn with everything being originalist except the EPC, but that's a different justification than the one Scalia offers. There has to be an argument why the EPC, and nothing else, deserves the dynamic interpretation. Such an argument I have not heard.

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