Posted by David Bernstein:
A Revisionist View of Bolling v. Sharpe:
http://volokh.com/archives/archive_2005_05_01-2005_05_07.shtml#1115293999
In [1]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 [2]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 accross 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.
References
1. http://legalaffairs.org/webexclusive/debateclub_cie0505.msp#Wednesday
2. http://mason.gmu.edu/~dbernste/bolling.htm
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