Do Originalists Ignore the Reconstruction Amendments? –

55 - Free Minds and Free Markets

Critics of originalism sometimes claim originalists only focused on the original 1787 constitution while ignoring the reconstruction changes that changed the constitution after the Civil War. Sometimes this criticism is combined with the argument that the neglect of the reconstruction changes is intended to privilege white men over blacks and other racial minorities whose rights have been secured by these changes. Such arguments have gained momentum again in the wake of the controversial appointment of Amy Coney Barrett to the Supreme Court – thanks in part to a New York Times published by Jamelle Bouie, which argues that originalists ignore the fact that "(t) he American, The thirteenth, fourteenth and fifteenth amendments, drafted, fought for and ratified for them, did nothing less than rewrite the Constitution with a view to a freer and more equal country. "He concludes that" the Constitution for reconstruction is a fundamentally different document than the constitution of 1787. However, our discussions about the & # 39; original meaning & # 39; seldom take this change into account. "

A recent article by MSNBC writer Hayes Brown also accuses originalists of "ignoring the fundamental constitutional change that came after the 13th, 14th and 15th amendments were passed." Such claims are not new. But they are very wrong. Those who accuse originalists of ignoring the importance of the reconstruction amendments are guilty of ignoring a large amount of originalist literature on the subject.

In reality, numerous prominent originalist legal scholars have written at length about the changes in the reconstruction and their significance. Michael McConnell (a noted originalist who was also a federal judge at times) has written prominent articles on the original meaning of the Fourteenth Amendment to both racial discrimination and the importance of due process. Steve Calabresi (another prominent originalist jurist and co-founder of the Federalist Society) has co-authored prominent articles in which he argues that the original meaning of the Fourteenth Amendment provides comprehensive protection against both racial and gender discrimination. Christina Mulligan has an important article that sets out how we can and should consider different perspectives (including those of women and ethnic minorities) in order to understand the original meaning of the Constitution. Your work is obviously relevant to interpreting the amendments on reconstruction.

Co-bloggers Randy Barnett, Evan Bernick, and Kurt Lash are among a number of originalist legal scholars who have authored important papers on the meaning of the privilege or immunity clause, arguing, in some cases, that it offers broad protection for a wide range of rights – far beyond what is protected by the courts today. Bernick also has a landmark new article advocating a broader interpretation of the equal treatment clause, claiming that its original meaning imposes a positive duty of protection on the state, not just a duty to avoid racial discrimination. Another leading originalist constitutional theorist, Michael Rappaport, has authored notable articles examining the implications of the original meaning of the Fourteenth Amendment on positive action programs and regulatory action.

In my book, The Grasping Hand, I discuss the implications of the Fourteenth Amendment's "incorporation" of the Bill of Rights against state governments for the "public use" of the state's ability to take private property. I contend that reconstruction-era understanding of public use – as shown in contemporary court decisions, debates on the abolition of slavery, and the authors' goal of protecting black and white unionists from state governments – provides a stronger foundation for that Enforcement of strict limits provides the government with the power to take over private property than is evident from the original meaning of the Fifth Amendment of 1791.

The originalists' interest in the reconstruction changes is not just a product of recent years either. McConnell's work on racial discrimination dates back to the 1990s. As early as 1980, Bernard Siegan published Economic Liberties and the Constitution, in which it is argued that the original meaning of the fourteenth constitutional amendment offers a much more comprehensive protection for economic freedoms than modern legal doctrine is willing to recognize. Prominent early originalists like Robert Bork and Raoul Berger also wrote about the original meaning of the Fourteenth Amendment in the 1960s and 70s, although most modern originalists (myself included) today would argue that Bork and Berger misunderstood many things.

It's also worth noting that pretty much all of the above authors acknowledge that the Reconstruction changes made substantial changes to the existing constitutional order. Few originalists claim that the original 1787 constitution remains in effect with little or no significant changes.

The significance of the thirteenth and fifteenth amendments was analyzed in a much less originalist manner. In large part, however, this is because these amendments are less controversial than the fourteenth. Nonetheless, there is growing originalist literature on these amendments too. Notre Dame law professor Jennifer Mason McAward, for example, has done some important work in pushing back the newly spread idea that the thirteenth amendment gives Congress broad powers to legislate against injustices that are in some way indirectly linked to slavery although she also emphasizes that there is broad power to self-suppress slavery and "involuntary bondage".

With the exception of Raoul Berger (a headstrong liberal who has often been associated with conservatives), the works listed above are all by conservative or libertarian originalists. They are most often accused of ignoring the rebuilding changes. However, it is important to recognize that Liberal Originalists also wrote important works on the changes in the reconstruction. Akhil Amar, for example, literally wrote the book on how these changes should change the interpretation of the Bill of Rights.

The works mentioned above are just one example of the vast amount of writings on the reconstruction changes that originalists have written over the past few decades. Due to lack of space, I had to leave out many important books and articles on numerous topics.

It is fair to argue that prominent originalist judges did not focus nearly as much on the original meaning of the reconstruction changes as academics (although this does not apply to some, like McConnell, who are or were both scholars and judges). Still, originalist judges are far from simply ignoring these changes.

For example, Clarence Thomas has written a well-known opinion in which he argues that the original meaning of the fourteenth amendment reinforces the case for "incorporating" the second amendment's right to bear arms against states. The authors of the amendment felt that this was an important safeguard for blacks' rights against oppression by racist state and local governments. As early as 1973, Judge William Rehnquist's objection was based in Roe v. Wade relied in large part on arguments that arose from the original meaning of the Fourteenth Amendment. And these are nowhere near the only examples of originalist judges grappling with Reconstruction changes on a wide variety of issues.

Originalistic judges can and should incorporate the original meaning of the reconstruction changes into their case law much better than many have before. However, it is wrong to claim that they simply ignored the issue or somehow believe that the Constitution has remained largely unchanged since 1787.

I don't expect columnists and other non-experts to be familiar with all of these writings. In fact, the literature has grown so large that even most constitutional lawyers (myself included!) Cannot keep track of everything. While it would be unreasonable to expect lay experts and commentators to study this literature in detail, they should at least consult relevant specialists before making sweeping claims about originalism.

Ironically, critics who claim originalists ignored the reconstruction amendments stand at odds with academic critics who argue that originalists are overly optimistic about their meaning (as Stephen Griffin argues in a key recent article) or that they are concerned about that meaning disagree so much that disagreement proves that originalism is indefinite. I have criticized the latter argument here. Such criticism of originalism would make little sense if the originalists had really largely ignored the changes in the reconstruction. The allegation of over-optimism is particularly at odds with claims that originalists seek to minimize or ignore the extent to which the reconstruction changes have altered the pre-existing legal system.

None of the above proves that originalists have found the "right" possible interpretation of the reconstruction amendments, or that originalism is superior to alternatives such as living constitutionalism. There are many legitimate criticisms of both originalist views on the reconstruction changes and originalism as a more general theory of constitutional interpretation.

I myself have reservations about many versions of originalism and only defend the theory for incidental "instrumental" reasons. I remain open to the possibility that another approach to interpreting the Constitution (perhaps one that is not yet fully developed) may prove superior. The public debate on originalism and constitutional theory, however, is not fueled by false claims that their proponents ignored the importance of amendments that they actually wrote at length about.