Tuesday, February 27, 2018
Steven G. Calabresi and Lena M. Barsky have published an exciting new article in BYU Law Review titled An Originalist Defense of Plyler v. Doe. They offer this summary:
This Article offers a defense of the Supreme Court’s opinion in Plyler v. Doe based on the original public meaning of the Fourteenth Amendment when it was enacted in 1868. We argue that at that time, the Fourteenth Amendment granted certain rights, such as life, liberty, and possession of personal property, to immigrants under the Equal Protection and Due Process Clauses, but did not grant them the privileges and immunities of citizenship (e.g. all civil rights and the political right to vote). We also argue that public education is a right of all persons protected by the Due Process and Equal Protection Clauses and was protected at the time of the Fourteenth Amendment’s ratification. We thus conclude that the Fourteenth Amendment granted a free public school education to both citizens and immigrants from July 9, 1868, onward.
Calabresi also wrote another incredibly valuable article with Michael Perl a few years ago: Originalism and Brown v. Board of Education, 2014 Mich. St. L. Rev. 429. That article begins as an originalist assessment of school segregation, but is equally important in terms of an originalist assessment of the constitutional right to education. I found it extremely helpful in my article The Constitutional Compromise to Guarantee Education. Like the article on Brown, this article on Plyler will trigger additional new insights about the constitutional right to education.
If one were keeping score, the last several years have produced a new and consistent interest in originalist analysis of the right to education. Goodwin Liu's article, Education, Equality, and National Citizenship, 116 Yale L.J. 330 (2006), certainly played a significant role in this line of scholarship. Barry Friedman and Sara Solow then published The Federal Right to an Adequate Education, 81 Geo. Wash. L. Rev. 92 (2013). Calabresi has, of course, been part of two articles. And I have written two more--the one noted above and a second that I will post in the coming days. While these article all forward slightly (and sometimes significantly) different doctrinal approaches, the fact that they are being written on the same subject is important. I do not know any of these scholars, nor had I seriously considered any of their work prior to already reaching my own initial conclusions about the history. I don't know if the other scholars would say the same, but I do know that they all come to the subject from different places. Liu focused on education as a scholar, but none of the others do. Friedman appears to be more of a general scholar of the Court, writing on a variety of topics, and most recently has written about policing. Calabresi is similar. He is the author of a constitutional law casebook, a book on the executive, and a variety of law review articles on subjects as diverse as marriage, rule of law, capitalism, and liberty. In short, group think does not seem plausible with this scholars.
In a forthcoming chapter in a book edited by Kimberly Robinson, I remarked (even before Calabresi's new article and before I had started my second article):
the most striking aspect of theories is how mutual reinforcing these . . . three independent articles are. . . . All of theories put forth a core set of facts that are largely beyond dispute. These facts establish a compelling originalism account of education: in the years leading up to and following the enactment of the Fourteenth Amendment, those who wrote, enacted, ratified, and enforced the Amendment—Congress and the states—placed an unmistakable emphasis on the governmental provision of public education. They sought to protect education, fund education, and enshrine it through constitutional protections. And as [The Constitutional Compromise to Guarantee Education] points out, this collective effort was never in any serious dispute. Rather, it was one of the few issues upon which all could easily agree.
The Court could deploy this history through a number of different constitutional doctrines, but the result of all should be that education does warrant federal constitutional protection. An originalist approach, regardless of the doctrinal vehicle, largely relieves the Court of developing rationales that others could more easily label as activist. By heavily relying on history, the Court need not reinterpret doctrine, rely on modern valuations of education, or amorphous inquiries of liberty. It need only focus on the facts as they were in the second half of the nineteenth century.
This scholarship is also complemented by three independent federal lawsuits, each raising a distinct claim for federal protection of the right to education. More on those lawsuits here: The Constitutional Right to Education Is Long Overdue.
With this growing list, I have now come to expect the list will only grow more in the next few years. Hopefully, it will be followed by helpful judicial analysis.