Still, Loving is one of the most important decisions in the history of the country. It aligned the Fourteenth Amendment not just with the protection of civil rights, which the Court did in Brown v. Board of Ed., but the the protection of social rights as well. The right to participate in society with equality and dignity is also protected by the Fourteenth Amendment, and that is what Loving stands for.
Which is why the case if kryptonite for originalist logic. Because if there’s one thing most nineteenth-century white men who wrote, debated, and adopted the Fourteenth Amendment were dead set against, it was the social equality of the races. I could make an argument that the Fourteenth Amendment wouldn’t have even been ratified if the white men supporting it thought it meant their daughters could marry Black people. There is no originalist understanding of the Fourteenth Amendment that comports with the Supreme Court’s unanimous opinion in Loving. Either our understanding of the Fourteenth Amendment “evolved” to include a rejection of racist anti-mescegenation laws, or it didn’t. If the Fourteenth Amendment doesn’t evolve, Alabama could force people to submit “pure-blood” certifications from Ancestry.com before issuing marriage licenses, and we’d need a while different constitutional amendment to stop them. Originalism has no satisfactory answer for Loving, and originalists expose the whole intellectural bankruptcy of their ideology when they try to fashion one.
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