At First Things, David Upham (University of Dallas – Politics): The Constitutional Fidelity of Loving and Dobbs. From the introduction:
According to the dissent [in Dobbs] and many commentators, the Court’s reasoning threatens various unenumerated and innovative rights. Indeed, Justice Thomas, in his concurrence, specifically questioned the putative constitutional rights of contraception, nonmarital sexual activity, and same-sex “marriage.” These putative rights do, indeed, seem foreign to our Constitution and were only recently acknowledged by some of our laws.
The dissenters, however, mentioned the right of interracial marriage, first endorsed by the Supreme Court in Loving v. Virginia (1967). According to Justices Breyer, Sotomayor, and Kagan, the right of interracial marriage, like the abortion right, is not deeply rooted in our traditions. Indeed, laws banning such marriage once prevailed as widely as anti-abortion laws did; therefore, just as the new right of interracial marriage was vindicated in Loving, so was the new right of abortion six years later in Roe: “The Fourteenth Amendment’s ratifiers did not think it gave black and white people a right to marry each other. To the contrary, contemporaneous practice deemed that act quite as unprotected as abortion.” By this account, Loving, like Roe, was evolutionary, and anti-traditional.
But the Dobbs dissenters are wrong, egregiously so. Their opinion reflects a widespread and serious misunderstanding of our nation’s history.
The right of American citizens to intermarry, regardless of race, is, indeed, deeply rooted in our traditions of freedom and citizenship, and is, for this reason, consistent with the original intent and meaning of the Fourteenth Amendment. To be sure, bans on interracial marriage, of course, were once widespread in some parts of our county.
But such laws were never our American tradition. They were not original but innovative. …
And from later on:
The Reconstruction Amendments were supposed to settle this whole matter. By expelling slavery and clearly establishing American citizenship on a nonracial basis, the people agreed to restore our older and better traditions of freedom and citizenship. Accordingly, during Reconstruction, the predominant opinion, especially among the Amendment’s most fervent supporters, was that our Constitution now clearly prohibited the states from making or enforcing laws hostile to interracial marriage. Republican officials across many states, including Mississippi, Texas, and Alabama, repealed or struck down such laws. Thus, by constitutional amendment, the common-law liberty of intermarriage was restored by the firmer establishment of our multiracial republic. Contrary to the claims made by the dissent in Dobbs, by 1872, interracial marriage was lawful in a supermajority of states, largely because of the prevailing opinion that bans on such marriage were incompatible with our multiracial republic.
Sadly, with the end of Reconstruction, an unconstitutional but de-facto apartheid regime developed. In Southern and many other states, African Americans were excluded from many rights of citizenship. Most notably, by the beginning of the twentieth century, a clear majority of the states once again banned interracial marriage, and many effectively prohibited blacks from voting. To that extent, the Fourteenth and Fifteenth Amendments were nullified. And most white Americans supported, or at least acquiesced in, this nullification.
The American people, it seems, proved too racist for their own Constitution.
It was not until after World War II that Americans began earnestly to redress the injustice of Jim Crow by recovering their traditions and restoring their Constitution. As to marriage, the first success came in 1947, when a Catholic couple successfully challenged California’s law. In the following two decades, legislatures of Northern and Western states repealed their extant laws, so by 1965, such laws remained only in the former slave states. In Loving, the Court completed this work by striking down these remaining barriers.
In that case, the Court said merely what Southern jurists during Reconstruction had acknowledged a century earlier: Our Constitution bars the states from making or enforcing laws against interracial marriage between Americans. As the Court explained, its conclusion was consistent with the original understanding of the Amendment’s “most avid supporters.”
Loving, then, was not revolution but restoration—a recovery of America’s oldest, broadest, and best tradition—and a work of constitutional fidelity.
Posted at 6:07 AM