Archive for the 'First Amendment' Category

Some of the Colorado Supreme Court’s Mistakes in the Douglas County School Choice Case

Posted by on Oct 22 2015 | Constitutional Law, First Amendment, school choice

As people who follow education reform already know, the Colorado Supreme Court recently struck down the Douglas County school board’s school choice program. It did so based on Article IX, Section 7 of the state constitution. This is sometimes called Colorado’s “Blaine Amendment,” although that phrase is technically a misnomer.

Actually, the Blaine Amendment was an 1875 proposal to amend the U.S. Constitution. The amendment was promoted by James G. Blaine (1830-1893), who served as Speaker of the U.S. House of Representatives (1869-75), Senator from Maine (1876-1881), the 1884 Republican nominee for President against Democrat Grover Cleveland, and Secretary of State (1881 and again, 1889-92).

When Blaine was politically active, there was strong anti-Catholic sentiment in America, largely due to animus against mostly-Catholic immigrants from Ireland and Italy. Blaine’s mother was Catholic, which might have rendered him politically suspect to many. So to improve his political viability, he promoted his amendment to ensure that state money never flowed to Catholic schools.

Blaine’s amendment didn’t pass, but he and others who shared his bias used their political clout in Congress to require new states to place similar measures in their own state constitutions. Technically these provisions are not amendments, but parts of their original documents.

Congress passed Colorado’s enabling act (law authorizing statehood) in 1875. Colorado entered the Union the following year. The people of Colorado knew that Blaine and his allies would review their proposed state constitution, and that if Blaine & Co. didn’t like what they saw they might block Colorado’s admission as a state.

The drafters of the Colorado constitution therefore inserted Article XI, Section 7:

Neither the general assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or monies whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever . . .

The term “sectarian” was primarily a code word for “Catholic,” although as explained below it could refer to any unpopular religious denomination. “Sectarian” did not include inter-denominational Protestantism, which then dominated American public schools.

If you read Article XI, Section 7 carefully, you realize that it cannot mean what it literally says. Literally read, it would render it unconstitutional for a city fire department to extinguish a blaze at a Catholic church. Many “anti-sectarian” provisions in other state constitutions present the same difficulty, so state courts have had to interpret them.

One way courts do so is to divide state assistance into three categories: (1) direct, (2) indirect, and (3) incidental. Direct aid is a grant program from the state to a school. An example of indirect aid is a voucher plan, such as the federal Pell Grant program for higher education. It is designed to benefit students, but the government sends money directly to the school chosen by the student or family. An illustration of incidental aid is the fire department scenario. Another example comes from a Montana case where that state’s highest court upheld a program that reimbursed expenses for a mother using a church adoption agency. The state paid the money to the mother, not to the agency.

Courts in Blaine states generally invalidate programs of direct aid to “sectarian” institutions. They sustain incidental aid. Opinions are split on indirect aid.

The Colorado decision is troubling for several reasons. Here are three that I don’t think have been sufficiently discussed:

First: The majority held that the Blaine provision did not violate the First Amendment’s Establishment Clause because the word “sectarian” was merely synonymous with “religious.” That is, the provision did not single out any particular religion or religions for discriminatory treatment. Incredibly, the majority’s sole source for treating “sectarian” as a synonym for “religious” was a law dictionary published—not in the 19th century when the Colorado constitution was adopted—but in 2014!

Nineteenth century dictionaries tell a very different story. A quick Internet search yielded three of them, and they all defined “sectarian” in a way that disparaged minority religions compared to others. Here are their definitions:

Webster (1828): “SECTARIAN, adjective. . . . Pertaining to a sect or sects; as sectarian principles or prejudices. . . . SECTARIAN, noun. One of a sect; one of a party in religion which has separated itself from the established church, or which holds tenets different from those of the prevailing denomination in a kingdom or state.”

Webster & Walker (1864) “adj: “Pertaining or peculiar to a sect. n. One of a sect, or one devoted to the interest of a sect; one of a party in religion which has separated itself from the established church. See Heretic.

Webster’s Academic Dictionary (1895): “Pertaining to a sect or to sects; bigotted attachedly to the tenets of a denomination. n. One of a sect.”

Obviously, the word “sectarian” in an 1876 document doesn’t mean merely “religious.” As the definitions suggest, it has connotations of “prejudice,” “bigot,” and “heretic.”

Under modern U.S. Supreme Court doctrine, this official disparagement of some religions as compared to others is a clear violation of the Establishment Clause.

Second: The Colorado court’s majority relied heavily on an earlier decision, Americans United for Separation of Church and State v. State. That holding was based on an inquiry into how “pervasively sectarian” funding recipients were. Yet later case authority holds that the approach in Americans United—advantaging some institutions because they are less religious than others—itself violates the Establishment Clause.

Third: The court treated the Douglas County program as a voucher plan. It had some justification for doing so, because even its friends sometimes refer to it as such. But in fact, the Douglas Count program is not a voucher plan. The school district does not write the check directly to the school of choice, but to the parent. The parent then independently endorses the check to the school. One can argue about whether this difference is sufficient to render the program one of “incidental” rather than “indirect” assistance. But the majority did not even address the issue.

There were some shortcomings in the dissent, also. It failed to reference any 19th century dictionaries, for example; and it failed to distinguish incidental from indirect aid.

Keep tuned: This case is going to the U.S. Supreme Court, so we have not yet heard the last word.

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The Lamp of Experience: Constitutional Amendments Work

Posted by on Mar 09 2014 | Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, First Amendment, Fourth Amendment, Freedom of Speech, History, Natelson Rob', Rob Natelson, U.S. Constitution

(This article originally appeared in the American Thinker.)

Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much. It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.

The “too much” contention was first promulgated in modern times by apologists for the liberal, ultra-activist Earl Warren/Warren Burger Supreme Court. Specifically, these apologists feared a convention might propose amendments to reverse their favorite judicial decisions. Their tactic was to claim that an amendments convention, even if legally limited, could turn into a “con-con” that disregarded its limits, repealed the Bill of Rights, and restored slavery. (Yes, some of them really said that.)

The liberals who promoted this scenario must have been amused when some deeply conservative groups fell into the trap and began using the same argument to kill conservative amendments.

The “too much” line, however, has been losing its persuasiveness. New research shows it to be legally and historically weak, and Americans increasingly are pondering the very real dangers of not resorting to the convention process the Founders bequeathed to us.

Hence the shift to the “too little” argument. Its gist is that amendments would accomplish nothing because federal officials would violate amendments as readily as they violate the original Constitution.

Opponents will soon find their new position even less defensible than the old. This is because the contention that amendments are useless flatly contradicts over two centuries of American experience — experience that demonstrates that amendments work. In fact, amendments have had a major impact on American political life, mostly for good.

* * * *

The Framers inserted an amendment process into the Constitution to render the underlying system less fragile and more durable. They saw the amendment mechanism as a way to:

* correct drafting errors;
* resolve constitutional disputes, such as by reversing bad Supreme Court decisions;
* respond to changed conditions, and
* correct and forestall governmental abuse.

The Framers turned out to be correct, because in the intervening years we have adopted amendments for all four of those reasons. Today, nearly all of these amendments are accepted by the overwhelming majority of Americans, and all but very few remain in full effect. Possibly because ratification of a constitutional amendment is a powerful expression of popular political will, amendments have proved more durable than some parts of the original Constitution.

Following are some examples:

Correcting drafting errors

Although the Framers were very great people, they still were human, and they occasionally erred. Thus, they inserted in the Constitution qualifications for Senators, Representatives, and the President, but omitted any for Vice President. They also adopted a presidential/vice presidential election procedure that, while initially plausible, proved unacceptable in practice.

The founding generation proposed and ratified the Twelfth Amendment to correct those mistakes. The Twenty-Fifth Amendment addressed some other deficiencies in Article II, which deals with the presidency. (My reference to a particular amendment does not mean I agree with every provision in it.)

Both the Twelfth and Twenty-Fifth Amendments are in full effect today.

Resolving constitutional disputes and overruling the Supreme Court

The Framers wrote most of the Constitution in clear language, but they knew that, as with any legal document, there would be differences of interpretation. The amendment process was a way of resolving interpretative disputes.

The founding generation employed it for this purpose just seven years after the Constitution came into effect. In Chisholm v. Georgia, the Supreme Court misinterpreted the wording of Article III that defines the jurisdiction of the federal courts. The Eleventh Amendment reversed that decision.

In 1857, the Court issued Dred Scott v. Sandford, in which it erroneously interpreted the Constitution to deny citizenship to African Americans. The Citizenship Clause of the Fourteenth Amendment reversed that case.

In the 1970, the Court decided Oregon v. Mitchell, whose misinterpretation of the Constitution created a national election law mess. A year later, Americans cleaned up the mess by ratifying the Twenty-Sixth Amendment.

All these Amendments are in full effect today, and fully respected by the courts. Some argue, in fact, that the Supreme Court actually over-enforces the Eleventh Amendment — a contention with which I do not agree.

Responding to Changed Conditions

The Twentieth Amendment is the most obvious example of a response to changed conditions. Reflecting improvements in transportation since the Founding, it moved the inauguration of Congress and President from March to the January following election.

Other amendments as well were wholly or partially triggered by changed conditions. The Seventeenth Amendment, which transferred elections for Senators from the state legislatures to the people, is still controversial in some quarters. But it was adopted only after social changes had caused widespread breakdown in the prior election system. (That is why the state legislatures themselves sought the change.) With the partial exception of Mark Levin, few if any of its critics address the very real problems the Seventeenth Amendment was designed to solve.

Similarly, the Nineteenth Amendment, which assured women the vote in states not already granting it, was passed for reasons beyond simple fairness. When the Constitution was written, overwhelming domestic duties and very short female life expectancies effectively disqualified most women from politics. During the 1800s, medical and technological advances made possible by a vigorous market economy improved the position of women immeasurably and rendered their political participation far more feasible. Without these changes, I doubt the Nineteenth Amendment would have been adopted.

Needless to say, the Seventeenth, Nineteenth, and Twentieth Amendments all are in full effect many years after they were ratified.

Correcting and forestalling government abuse

Avoiding and correcting government abuse was a principal reason the Constitutional Convention unanimously inserted the state-driven convention procedure into Article V. Our failure to use that procedure helps explain why the earlier constitutional barriers against federal overreaching seem a little ragged. Before looking at the problems, however, let’s look at some successes:

* We adopted the Thirteenth, Fourteenth, Fifteenth, and Twenty-Fourth Amendments to correct state abuses of power. All of these are in substantially full effect.

* In 1992, we ratified the Twenty-Seventh Amendment, 203 years after James Madison first proposed it. It limits congressional pay raises, although some would say not enough.

* In 1951, we adopted the Twenty-Second Amendment, limiting the President to two terms. Eleven Presidents later, it remains in full force, and few would contend it has not made a difference.

Now the problems: Because we have not used the convention process, the first ten amendments (the Bill of Rights) remain almost the only amendments significantly limiting congressional overreaching. I suppose that if the Founders had listened to the “amendments won’t make any difference” crowd, they would not have adopted the Bill of Rights either. But I don’t know anyone today who seriously claims the Bill of Rights has made no difference.

In fact, the Bill of Rights continues to have a huge impact more than two centuries after adoption. The courts enforce, to at least some extent, all of the original ten except, arguably, the Ninth. Some, such as the First Amendment, have been “super enforced.” Others, such as the Second and Fourth are under relentless pressure, but remain far better than nothing at all.

What about the Ninth and Tenth? They are certainly under-enforced today, but we must remember that they enjoyed full effect for nearly 150 years. No reasonable person would classify 150 years of effect as anything but a stellar political success. Even today, the Tenth retains some of its power, as Congress learned when the Supreme Court upended its effort to corral all the states into the Obamacare Medicaid expansion.

“I have but one lamp by which my feet are guided; and that is the lamp of experience,” Patrick Henry said. “I know of no way of judging of the future but by the past.”

In this case, the lamp of experience sheds light unmistakably bright and clear: Constitutional amendments work.

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Major Victory in Court for the First Amendment!

Posted by on Apr 02 2013 | First Amendment, Petition Rights, PPC

Colorado has the initiative process; that is, we lowly citizens can act as the legislature and change law. Elected officials of all stripes hate the initiative, and you can understand why. The initiative is the check and balance on their power. Would politicians ever vote to limit their own terms? Of course not. Fortunately, through the initiative, we the people did. Would they ever vote to limit how much they spend, or ask voters for a tax or debt increase? We the people did through the Taxpayer Bill of Rights. Would politicians ever vote to make all their meetings open to the public? Well, we the people did…you get the idea.

So in 2009, the legislature passed a bill, HB-1326, that made it so onerous, expensive, and potentially personally bankrupting that no thinking person would ever put something on the ballot again. (And as you’ll see, I am no thinking person.) So we decided to fight to keep our right to petition. It has been a long and expensive fight, but with a judge’s order on Friday, we have now completely won!

Let me give you an idea just how bad this law was. It made the proponents of an initiative personally liable for the actions of petition gatherers. I’ve been a political activist for over two decades and, like most Americans, never thought that being part of the democratic process would land me in court and possibly bankrupt me. Well, that’s just what happened.

I was the sponsor of our Health Care Choice initiative in 2010, along with our health care star Linda Gorman. When the opponents wanted to derail the effort, they used the new law and claimed that a paid petition gatherer misrepresented my initiative to get a citizen to sign my petition. So into court I was dragged. If the opponents won I would be liable for their legal costs. We of course won, but still, my legal costs were about $100,000. This nuisance complaint did what it was created to do – cost time and money. If, however, we’d lost, I’d have had to pay hundreds of thousands to the opponents. I would have been wiped out and in bankruptcy.

After what happened to me, it became clear that no one would ever chance their own fiscal ruin by putting an initiative forward again. With our input, the Secretary of State has made rule changes to provide at least some protection to future sponsors.

If that wasn’t enough, HB-1326 outlawed paying petition gatherers by the signature. Instead, they were to be paid by the hour or on salary, which would make the process so expensive that only very rich people and political interests could get things on the ballot. We were able to get a judge to temporarily enjoin that just in time for us to get the signatures needed for the Health Care Choice initiative in 2010.

On Friday, the judge made that temporary injunction permanent! This is a major victory for the right to petition.

And if THAT wasn’t enough, HB-1326 required that petition gatherers be residents of Colorado, even though the most effective, professional gatherers travel around the country and may be out-of-state. Again, the law was made to make it unaffordable to get something on the ballot. On Friday, the judge permanently enjoined that part of the law, too. We’ve won on everything.

The lawyer we used was none other than David Lane, who skillfully navigated this suit. Thanks David.

To make a long story short, the Independence Institute is willing to take on the nitty-gritty battles, like this one, to protect our freedoms. And this is yet another victory in our path towards true liberty.

Advancing liberty ain’t always pretty, ain’t never cheap, and is always longer and harder than imagined. But if you and I don’t do it, who will?

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Monday Links

Posted by on Oct 01 2012 | education, energy, First Amendment, Freedom of Speech, Op-eds, PPC, U.S. Constitution

It’s Monday. Booooooo. No one likes Mondays. But allow me to help you cope with today.

If you happen to be male and reading this, then I’m certain you did not attend our women-only renewable energy debate we had this past Wednesday. I snuck in to watch for a few minutes here and there and let me tell you, it was fantastic. (It was even better than I thought after I listened to the full debate audio). We had an all-star panel for the debate, highlighted by none other than Veronique de Rugy of the Mercatus Center and Reason Magazine. If you were unable to attend the debate either because of your gender or your day job, check out the full debate audio here.

Secondly, I’d like to point you towards a couple of articles from I.I. authors that deserve a look. First, Ben DeGrow of the Education Policy Center saw a sneak preview of Hollywood’s take on the school choice/reform movement called “Won’t Back Down.” Ben admits in his review for Ed New Colorado that even though Won’t Back Down is no Citizen Kane, it still gets across a vital message: School reform will not wait!

Finally, frequent I.I. guest author Ari Armstrong published an op-ed in yesterday’s Denver Post arguing against Amendment 65, which appears on this November’s ballot and would demand that Colorado legislators get on board with more onerous and restrictive campaign finance reform. In other words, to be FOR Amendment 65, one must be against free speech. Ari is fervently pro-First Amendment rights however, and thus, makes a good case against Amendment 65. You might recall that our Research Director Dave Kopel is also a big fan of free speech rights and recently appeared on KNUS to debate Ken Gordon on the issue. You can hear that debate audio here.

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Bleg on First Amendment offensive speech

Posted by on Sep 21 2012 | First Amendment

I thought it would useful to compile a list of some of the most offensive words, images, etc. which have been held to be protected by the First Amendment. I’m especially interested in Supreme Court cases, but other cases are fine too. So commenters, please submit your nominations. Thanks!

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Dave Kopel v. Ken Gordon on Amendment 65

Posted by on Sep 21 2012 | Constitutional Law, First Amendment,, Kopelization, PPC, U.S. Constitution

The Supreme Court’s Citizens United decision in 2010 was a landmark case protecting political speech – whether in the form of a guy standing on the sidewalk promoting or bashing a political candidate or that same guy giving money on behalf of his corporation for or against a political candidate or cause. The Court found that restricting political contributions, even from groups of people formed as corporations, was antithetical to our Constitution in general and the First Amendment in particular. On the heels of that decision, the anti-speech interests around Colorado began constructing a plan to combat the ruling.

What ultimately ended up happening was a coalition of forces, mostly on the Left, raised a ton of money (irony?) to put Amendment 65 on this November’s ballot. As it appears on the ballot, Amendment 65 is titled, “Colorado Corporate Contributions Amendment.“Part of the Amendment 65 campaign’s stated goals is to overturn the Citizens United ruling.

This past Wednesday the 19th, local radio station KGNU hosted a debate on Amendment 65, featuring our Research Director Dave Kopel and former legislator Ken Gordon. As you might imagine, Dave took the position in favor of political speech and thus, against Amendment 65, while Ken Gordon argued against political speech and in favor of Amendment 65. You can hear the full 60 minute debate here on

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Independence Institute Writers In the News

Posted by on Jul 10 2012 | Constitutional History, Constitutional Law, Constitutional Theory, First Amendment, Health Care, obamacare, PPC

The Supreme Court Obamcare decisions and the first Amendment are topics of recently published works by Independence Institute writers.

In the Denver Post, Health Care Policy Center director Linda Gorman lays out some straightforward, market-based health care reforms should Congress attempt to replace and repeal Obamacare.  Writes Linda:

Advocates of Obamacare claim that unless we let the government (mis)manage even more of the health care system, there will no health safety net.

To the contrary, with patient-centered reforms, we can reduce ordinary health care costs for everyone, make insurance for extraordinary costs accessible and affordable, and provide an effective safety net for the poor.

Whole thing here.

In the Great Falls (Montana) Tribune, Rob Natelson writes on the importance of First Amendment freedoms when politicians, from both sides of the aisle, go gunning for media outlets they don’t like, using Great Britain as an example.  Writes Rob:

At a minimum, mainstream reporters have to mute what they write about sitting office holders so they can maintain access to sources. Less scrupulous reporters amplify messages promoted by favored politicos and dig up (or manufacture) dirt against political opponents.

Whole thing here.

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This First Amendment Defense Fails

Posted by on Feb 14 2012 | Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, First Amendment, Health Care, health control law, obamacare, PPC, U.S. Constitution

The religious and conservatives among us might not want to hear this, but I think it’s important to point out. Our Constitutional scholar Rob Natelson just wrote on the contraceptives and Catholic Church controversy. Many are making a First Amendment case against the Obamacare mandate forcing the church to provide products and services they find immoral. After all, the First Amendment protects religious freedom. However, Rob disagrees with this particular defense. He writes,

Does the mandate forcing Catholic hospitals to offer abortifacients and contraception violate the First Amendment? The surprising answer is: Probably not.

Read Rob’s constitutional arguments on his blog. You might be surprised to see that not all religious refuge can be taken in the First Amendment. A big thanks goes out to Rob for being true to objective constitutional scholarship – even if it means not giving an answer people want to hear.

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Recommendations for First Amendment textbook

Posted by on Feb 05 2012 | First Amendment, Law schools

Next spring semester, I will be teaching a First Amendment class. So I request advice from commenters about what textbooks they liked, or did not like, and why.

For the recommendations, please ignore entirely the textbook’s treatment of the religion clauses. Denver University has a separate class on them, so my class will be entirely on Speech, Press, Petition, Assembly, and Association.

Personally, I prefer textbooks which put their subject in historical context and order, which is one of the reasons I use Randy Barnett’s textbook for Con Law I and Con Law II. Like Barnett, I also prefer textbooks which pay attention to “the Constitution outside the courts,” and not just to Supreme Court cases.

Finally, I like to show students how to use one part of the Constitution to help understand another part. So I would be particularly interested in textbooks that highlight the First Amendment’s interplay with the Copyright clause,  the Fourteenth Amendment, and so on. I will of course give careful study to Eugene Volokh, The First Amendment and Related Statutes, Problems, Cases and Policy Arguments (4th ed.).

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The original meaning of the 14th Amendment regarding interracial marriage

Posted by on Dec 05 2011 | Anti-Semitism, congress, Constitutional History, Constitutional Law, federalism, First Amendment, Fourteenth Amendment, History, Racism, supreme court

Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.”  Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”

Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation  violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). According to the unanimous Burns court, the idea that contracts could be limited to members of the same race was absurd: “Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other. If so, laws prohibiting the races from suing each other, giving evidence for or against, or dealing with one another, would be permissible. The very excess to which such a construction would lead is conclusive against it.”

That same year, the Texas Supreme Court unanimously ruled that  the “the law prohibiting such a [common law] marriage [between a white and a black] had been abrogated by the 14th Amendment to the Constitution of the United States.” Bonds v. Foster, 36 Tex. 68 (1872) (inheritance case). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.

It was the Indiana Supreme Court  that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is  ”more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing a racial  mandate on the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).

I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex. App. 263 (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)

By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.

Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on void for vagueness, the fundamental unenumerated right to marry, and First Amendment  free exercise of religion, rather than a categorical attack on all racial discrimination).

Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.’”

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