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David R. Upham, Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause (2013), available at SSRN.

Legislation banning interracial marriage has long played an important role in debates over originalism and constitutional interpretation. When such laws came under legal attack in the 1950s and 1960s, their seeming compatibility with originalism was emphasized by conservatives and segregationists as a justification for courts to uphold them.Since the Supreme Court invalidated laws banning interracial marriage in Loving v. Virginia (1967), their apparent acceptability under the original meaning has been deployed by a very different set of commentators: opponents of originalism, most of them associated with the political left. For these critics, the compatibility of laws banning interracial marriage with originalism is not a reason to uphold them, but rather a reason to reject originalism itself. If originalist constitutional interpretation requires such an abhorrent result as upholding blatantly racist laws restricting marriage rights, then perhaps originalism itself is morally bankrupt.

Regardless of the purpose for which it is used, the originalist case for the constitutionality of laws banning interracial marriage seems initially strong. Public opposition to interracial marriage was widespread when the Fourteenth Amendment was ratified and for decades thereafter. Numerous states, northern and southern, banned interracial marriage at the time the amendment was adopted, and the Supreme Court unanimously endorsed the constitutionality of anti-miscegenation laws in Pace v. Alabama in 1883. As late as 1968, a year after Loving, a Gallup poll showed that only 20% of Americans approved of interracial marriage between blacks and whites. This and other similar evidence helps explain the longstanding conventional wisdom that the result in Loving cannot be justified on originalist grounds.

In his recent unpublished paper, “Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause,” Professor David Upham has produced the most far-reaching challenge to that conventional wisdom so far. The few previous originalist defenses of Loving, such as an important 2012 article by Steven Calabresi and Andrea Matthews, do not consider as wide a range of evidence. Moreover, Calabresi and Matthews concede that the “original intent” of the amendment and the expectations of the public were consistent with the constitutionality of laws banning interracial marriage, arguing only that the Amendment’s “original public meaning” cuts against those laws.

Upham’s extensive historical research shows that there was much greater support for striking down antimiscegenation laws among the Republican political elites who framed and ratified the Fourteenth Amendment than was previously thought. This understanding was also reflected in early judicial decisions interpreting the Amendment, especially those by Republican judges.

Upham shows that the right to marry other citizens was widely considered a standard common law privilege of citizenship in antebellum America. In the absence of constitutional barriers preventing it, most legislators and jurists believed that this privilege could be abridged by state legislation banning interracial marriage, as it indeed was in many states. The Privileges and Immunities Clause of Article IV, Section 2 only barred states from denying privileges and immunities of citizenship to out-of-staters on a discriminatory basis. It did not bar restricting interracial marriage (or any kind of marriage) by residents of all states alike.

This state of affairs changed, Upham argues, when the Privileges or Immunities Clause of the Fourteenth Amendment forbade state denial of the privileges or immunities of citizenship across the board, regardless of whether there was discrimination against out-of-staters or not. During the drafting and ratification of the Fourteenth Amendment, many Democratic opponents charged that it would have exactly this effect. Significantly, most Republican supporters either accepted the point, or chose not to deny it. In 1862, the Republican-dominated wartime Congress had repealed the District of Columbia’s law banning interracial marriage. Several Reconstruction-era Republican controlled constitutional conventions in former Confederate states voted against adopting such laws. Among the prominent Republicans who emphasized that black citizenship was incompatible with laws banning interracial marriage were Indiana Governor Oliver Morton and Massachusetts Senator Henry Wilson.

Perhaps even more persuasively, Upham shows that Republican judges and political elites interpreted the Amendment this way in the immediate aftermath of its enactment. By 1873, bans on interracial marriage had either been repealed or went unenforced in “both a clear majority of states and a super-majority of the states that had ratified the Amendment.” This was true in nearly all the Republican-controlled states in the North, and in those reconstructed southern states where Republicans held sway thanks to an alliance between white unionists and newly enfranchised African-Americans. Upham demonstrates that this combination of repeal in some states and nonenforcement in others was in large part due to the conviction of most Republicans that antimiscegenation laws were now unconstitutional.

In addition, numerous Republican-appointed judges reached the same conclusion when antimiscegenation laws were challenged in southern states that continued to try to enforce them in the early 1870s, including decisions in Alabama, Indiana, Louisiana, Mississippi, North Carolina, and Texas. In Alabama and Texas, the relevant decisions were made by the state supreme court.

This tide of support for the right to marry across racial lines was eventually undermined by two forces: the Supreme Court’s closely divided 5-4 decision in the Slaughterhouse Cases (1873), which adopted an extremely narrow interpretation of the Privileges or Immunities Clause, and the rise of racist “Redeemer” state governments in the Southern states, which reinstituted enforcement of laws banning interracial marriage and appointed judges who upheld them.

Still, the most relevant period for originalist purposes was that immediately around the time of drafting and ratification. The Republicans who drafted, ratified, and interpreted the Amendment in those years largely agreed that it banned laws forbidding interracial marriage.

Upham’s article is the most extensive originalist rationale for Loving v. Virginia to date. It represents major progress in the literature on the subject. But it does not completely resolve the debate over originalism and interracial marriage. The evidence it presents is stronger with respect to some versions of originalism than others.

When originalism first reemerged as a major school of thought in modern academic debates over constitutional interpretation, most originalists advocated “original intent”—the theory that provisions of the Constitution should be interpreted as intended by the political elites who drafted and ratified them. Upham’s evidence goes a long way to showing that the relevant elites mostly believed that the Fourteenth Amendment bans antimiscegenation laws.

Since the late 1980s, however, most originalists have shifted to the “original public meaning” camp, which argues that the Constitution should be interpreted as it would be understood by readers of the text at the time it was ratified. Original meaning originalists disagree about exactly whose understanding of the text is relevant. Some emphasize the understanding held by legally sophisticated readers, such as judges, lawyers, and legal scholars. Others focus on the understanding of a hypothetical “reasonable” reader of English at the time, who may or may not be legally sophisticated, depending on the views of the theorist in question.

Upham’s evidence is very powerful from the standpoint of theories of original meaning that emphasize the understanding of actual or hypothetical readers expert in law. Most of his evidence consists of the views of just such experts, particularly those associated with the political movement that supported the Amendment. But many original meaning theorists emphasize not the understanding of experts, but that of the general public—either the actual public or a hypothetical non-expert “reasonable” reader at the time. After all, ratification is ultimately supposed to be a democratic process that expresses the will of the people, not just a small elite.

It is far from clear that ordinary citizens shared the understanding advocated by Republican elites in the 1860s and 1870s. The text of the Amendment does not unequivocally state that laws banning interracial marriage are now unconstitutional. The average reader of English would not readily understand that a provision barring states from “abridge[ing] the privileges or immunities of citizens of the United States” would necessarily require them to permit interracial marriage. And there is little doubt that most whites, in both the North and the South, strongly disapproved of interracial marriage, as they continued to do until late in the twentieth century. Had a majority of the general public believed that the Fourteenth Amendment would require state recognition of interracial marriages between blacks and whites, opposition to the Amendment would likely have been much stronger, and it might not have been ratified. Upham does cite a few newspaper articles suggesting that popular support for interracial marriage was rising in the 1860s and early 1870s. But more evidence would be needed to show that such support had advanced to the point where anything like a majority of voters believed that the Fourteenth Amendment had banned antimiscegenation laws.

Upham has provided an impressive and important new defense of the view that Loving v. Virginia is consistent with originalism. His article does not definitively resolve the debate over the issue. But it is an important step forward.

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Cite as: Ilya Somin, Originalism and Interracial Marriage, JOTWELL (August 13, 2014) (reviewing David R. Upham, Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause (2013), available at SSRN),