Loving and Constitutional Traditionalism

In light of the passing of Mildred Loving, it’s useful to return to standard set out by Antonin Scalia to apply the equal protection clause in cases that don’t involve installing a political ally in the White House:

I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). Such formulas are essential to evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with that “equal protection” our society has always accorded in the past [sic]. But in my view the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them.

Under this standard, I think Loving is clearly wrongly decided. Bans on interracial marriage are not unambiguously prohibited by the Constitution, and there was an unbroken tradition of such bans in 1967. With Brown, at least, the traditionalist (while on exceedingly shaky ground) might be able to claim that apartheid was a minority, sectional tradition rather than a truly national one. But bans on interracial marriage existed in many states North and South, and in Gallup surveys taken in the 50s were supported by huge national majorities. If traditionalism is the right way of interpreting ambiguous constitutional traditions, Loving is wrong.

The point here, of course, if not that there’s any chance that Scalia would vote to uphold such a ban today, but rather that the idea that traditions of discrimination are self-justifying is a singularly unappealing way of reading the Constitution. The idea that we can’t consider inviduous gender distinctions (for example) an equal protection problem because they weren’t considered problematic in 1865 is unpersuasive in the extreme.