In yesterday’s installment of the Sunstein/Barnett debate, Sunstein raised the case of Bolling v. Sharpe, holding that the federal government may not segregate schools in the District of Columbia. Randy responded:
You are right to point out that the Supreme Court’s decision in Bolling v. Sharpe is very difficult to reconcile with the text of the Constitution. For this reason, you know that among constitutional scholars of all stripes Bolling is one of the most controversial and difficult cases ever decided by the Court. I do not have a fully worked-out opinion on this complex issue, but suppose that a commitment to originalism entails the reversal of Bolling.
I have an article forthcoming on Bolling in the Georgetown Law Journal, in which I explain that Bolling has been incorrectly interpreted as a “reverse incorporation” case applying 14th Amendment equal protection standards to the Federal government under the Fifth Amendment, when it was really a pure Lochnerian due process case, a fact Warren ultimately chose to obscure in the final opinion. I conclude:
[W]ith its roots in Buchanan v. Warley and the 1920s educational liberty cases, the liberty right to be from from compelled segregation in education is perhaps better-grounded than the [currenly recognized] liberty right to terminate one’s pregnancy, to engage in homosexual sodomy, or to be free from arbitrary punitive damages awards. This will not satisfy critics who oppose the Court’s substantive due process jurisprudence across the board. But for the vast majority of legal scholars who do support the Court’s current substantive due process jurisprudence, Bolling should be an easy case to defend.
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