Originalism and Loving v. Virginia
Steven G. Calabresi
Northwestern University - School of Law
Harvard University - Law School
February 1, 2012
Brigham Young University Law Review, Forthcoming
Northwestern Law & Econ Research Paper 12-03
Northwestern Public Law Research Paper No. 12-06
This article makes an originalist argument in defense of the Supreme Court’s holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi’s work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving is a classic conflict between text and legislative history.
Number of Pages in PDF File: 81
Keywords: due process, legal history, state and local government law, constitutional law, sexuality and the law, law and society, jurisprudence
JEL Classification: K10, K19, K39
Date posted: March 13, 2012
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