August 24, 2005
Originalism as if the Civil War Happened
Both Armando at Kos and Kevin Drum take their shots at saying why Constitutional Originalism is a problematic approach for judicial decisions. Mostly they ask why we should take the beliefs of people from the 18th century so seriously, when the world has changed so much.
But what both of them ignore is the fact that we had this thing called the Civil War, after which the Constitution was radically rewritten with the 13th, 14th and 15th Amendments. So if we are going to talk about "Original Intent", we'd have to take much more seriously the views of the Radical Republicans-- who were quite radical by even modern standards.
I've written about this in A New Birth of Freedom, so let me give you a sampling of views from those "founders":
John Bingham, the [14th] amendment’s main author, said the amendment was designed “to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.”And their intent in what those amendments meant were shown by the laws they passed, including anti-Klan legislation to imprison any private person interfering with another person's exercise of their rights, and a Civil Rights Act in 1875 that banned all segregation in public accomodations, including transportation, inns and recreational facilities. There were majorities to include public schools within this ban on segregation, but filibusters by a minority blocked their inclusion.
As the drafter of the 15th Amendment, Massachusetts Republican George Boutwell, explained: “With the right of voting, everything a man ought to have or enjoy of civil rights comes to him. Without that right he is nothing.”
As Michael McConnell, the conservative legal scholar appointed by George W. Bush to the 10th Circuit, detailed in his research arguing for his version of original intent, which included what the post-Civil War legislators believed, votes on the 14th Amendment matched votes on the 1872 anti-Klan bill: “All eleven members of the House who had voted in favor of the Fourteenth Amendment voted in favor of the bill; the three who had voted against the amendment opposed it.” When the Civil Rights Act finally passed in 1875, all the House members who had been around to vote for the 14th Amendment supported the new law; only one Senator who had originally voted for the 14th Amendment voted against the 1875 Act.
Unfortunately, the Supreme Court of that era didn't care what those passing the Amendments had in mind, so they struck down almost all the Reconstruction era statutes and ushered in the era of Jim Crow.
But let's be clear, the rightwing majority on the present Court who struck down the Violence Against Women Act and other civil rights laws in the name of federalism don't care about Originalism, since they ignored the clear intent of the Reconstruction framers. In fact, Rehnquist and company cited to the rightwing Supreme Court of that era for precedent, choosing judge-made constitutional doctrine over the original intent of the legislators who passed the 14th Amendment.
So the absurdity of Originalism is not that we pay too much attention to a few men back in the 18th century, it's also that we pay too little attention to the democratically-elected leaders who passed the 13th, 14th and 15th Amendments and ushered in the real Constitution that we live under today.
The Constitution fo 1787 died in the conflaguration of the Civil War, so who cares what its authors believed? Who we should care about are those who founded our nation anew under a Constitution that incorporated all its residents as persons with rights. And any Originalism that does not do that front and center is not absurd, but not real originalism at all.
Posted by Nathan at August 24, 2005 12:25 PM