Originalism and Loving v. Virginia

81 Pages Posted: 13 Mar 2012  

Date Written: February 1, 2012

Abstract

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.

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

Suggested Citation

Calabresi, Steven G. and Matthews, Andrea, Originalism and Loving v. Virginia (February 1, 2012). Brigham Young University Law Review, Forthcoming; Northwestern Law & Econ Research Paper 12-03; Northwestern Public Law Research Paper No. 12-06. Available at SSRN: https://ssrn.com/abstract=2020371

Steven G. Calabresi (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Andrea Matthews

Harvard Law School ( email )

1557 Massachusetts Ave
6 Ever
Cambridge, MA 02138
United States

Paper statistics

Downloads
249
Rank
99,677
Abstract Views
1,651