Starkey on Inconsistent Originalism

I need to offer some kind of prize to people who win a trivia contest, and, hey, this is the faculty lounge.   What we try to do here is talk about scholarship.  So the prize for winning a trivia contest ought to be that we talk about the winner's scholarship.  That's a real pleasure for me to do with our most recent winner (of the two part civil rights trivia), Brando Starkey of Villanova Law School, because he writes on race and law.  Brando's got a lot of papers up on ssrn that interest me -- especially the series on the meaning of Uncle Tom.  But I thought that I'd talk about another recent article, "Inconsistent Originalism and the Need for Equal Protection Re-Invigoration."  Here is the abstract:

After Washington v. Davis, the Equal Protection Clause, as in Plessy v. Ferguson, was interpreted to prevent racial justice for communities of color. The Davis Court announced the intent doctrine; that the Equal Protection Clause only protects those discriminated against pursuant to a discriminatory motive. But as Charles Lawrence announced in his piece entitled The Id, The Ego, and Equal Protection, discrimination is frequently the result of an unconscious mind. By focusing on a motive inquiry, moreover, courts limit remedy to the most overt of discriminatory acts.  The evidentiary burden is too high. With the Equal Protection Clause no longer an effective tool for stigmatized minorities, it needs to be re-invigorated to further racial equality.

Those seeking to overturn Davis must, though, grapple with the reality that the original public understanding of the Equal Protection Clause does not render discriminatory acts resulting from unconscious bias unconstitutional. I argue that the Fourteenth Amendment’s original understanding is an anachronism and the future of the intent doctrine must not hinge on the ratifying generation’s formulation. Originalists implicitly agree with this contention. Indeed, Originalists’ equal protection opinions, particularly involving affirmative action, confound anyone with a basic knowledge of the Fourteenth Amendment’s legislative history. Originalists best establish how much the original understanding of the Fourteenth Amendment is unhelpful in dealing with contemporary race issues. The Equal Protection Clause, I argue, must be re-invigorated so that its new understanding reflects both our deepening knowledge of unconscious bias and our appreciation for how a discriminatory motive can be easily hidden.

This is part of a larger work on "The Intent Doctrine," it appears. 

I continue to be surprised by the extent to which talk of originalism dominates our thinking, but as Brando points out one looking towards an expanded equal protection principle probably needs to deal with rather circumscribed original meaning.  What he does here is point out that sometimes we depart from original understanding -- such as the argument that the fourteenth amendment was colorblind, when substantial evidence suggests that it do not originally prohibit segregated schools.  Pointing out this inconsistency is an important (if somewhat dicey) proposition -- for it argues that the Fourteenth Amendment allows race-conscious discrimination.  All of that goes to show that originalists have departed in certain circumstances from what originalism counsels.  If they have done so in some cases, then perhaps they should do so in others....  There is a lot to this article; I hope you have the chance to read it.

Comments

[Brando Simeo Starkey]

Much appreciation for this post! ...although this positive reinforcement for procrastinating can’t be good for me.

I finished that article 2 years ago around this time I believe. I’m writing a series of articles (just 2 left) that I hope to turn into a book (The Intent Doctrine) where I unearth the historical origins of equal protection’s requirement that claimants prove intent, argue why it’s a bad standard and then offer a workable solution (it’s more complicated but that’s the general gist of if). When I wrote that article, I had no idea what I wanted the solution to be but I knew that some self-described Originalists would criticize any effort to move away from a motive-centered Equal Protection Clause. So I wanted to cut off a counter argument to what my eventual solution would be and argue that if Originalists (specifically Thomas and Scalia) are so concerned with discrimination to support a colorblind Constitution, then they should be even more concerned that requiring claimants to prove intent hurts our ability to stamp out discrimination.

Now I’ve already devised my solution and I am assessing how it could force police departments to change discriminatory stop and frisk tactics. Specifically, I’m arguing that my new solution could help the class action plaintiffs in Floyd v City of New York. http://ccrjustice.org/floyd. That article will be done and on SSRN in a few days, I hope…