Kreis on Overturning Inter-Racial Marriage Bans before Loving

Anthony Michael Kreis, a doctoral candidate in the University of Georgia School of Public and International Affairs, has posted The Historic Foundation of Collaborative Constitutionalism.  Here is the abstract:    

Legal scholars, political scientists, and historians have long inquired into the role courts play in society and republican governance. In terms of judicial capacity, many scholars reject the notion that courts can implement sweeping social change through brute force. Indeed, prominent social scientists have viewed courts’ efficacy in this arena with skepticism. Whether courts routinely safeguard minority rights against majoritarian impulses is also deeply contested. Relatedly, Alexander Bickel’s articulation of the “countermajoritarian difficulty” — the idea that judicial review is a deviant function in a democratic society — informs much of modern constitutional theory. Some have empirically tested judicial decision-making to learn whether courts actually act in a countermajoritarian fashion. Many historians and political scientists have concluded courts are more apt to follow rather than lead public opinion to the detriment of minority interests.

This question of judicial capacity and social change has returned with great intensity as courts have systematically dismantled state laws prohibiting same-sex marriage. Often in the course of debate, parallels have been drawn between same-sex marriage and interracial marriage. These connections, however, are generally thin in their analysis with respect to the comparative institutional influence of courts and legislatures. This article reconstructs the historical record to better assess the judicial function in social change during the 20 years prior to the U.S. Supreme Court’s pronouncement that interracial marriage bans are unconstitutional in Loving v. Virginia. The historical record reveals strong parallels between the movement to secure recognition of interracial marriages and that of same-sex marriage. Both movements relied upon courts as legitimizing institutions to erode marriage prohibitions. While the courts were woefully inadequate in combating interracial marriage prohibitions, they were not wholly absent actors. Judicial institutions were part of an evolving dialogue — engaging in a form of collaborative constitutionalism — that slowly chipped away at anti-miscegenation laws between 1948 and 1967.