Do Liberals Need to Practice Originalism, Too? |
Not so long ago, originalism seemed safely contained. Ascendant during the Reagan era, originalists argued that the Constitution should be interpreted according to its original meaning, but when liberals dominated the Supreme Court, not many people outside of the academy felt the need to pay much attention. Still, the academic debates were revealing. Legal scholars both for and against originalism quickly found themselves debating questions that history professors might discuss with their undergraduates the first day of class—like, original meaning according to whom? In the case of the Constitution, the problem isn’t simply that its 55 Framers understood key clauses differently; it’s that the tens of thousands of ordinary Americans who publicly debated the document during the ratification process understood the text to mean different things, too. To paraphrase the historian Jack Rakove, there was never a single original meaning, only original meanings.
Most originalists today would say they adhere to an “original public meaning”—interpreting the document as it was understood by the broader public, not just the Framers. But this hardly clarifies things. Which public are we talking about? The people formally allowed to vote for delegates at state ratification conventions, which up until Reconstruction mostly meant white men? And what sources should we use to discern “public meaning”? Should we focus on pamphlets advocating for the Constitution’s adoption, like the Federalist Papers, which cast the document in the best possible light? Or should we put more trust in its staunchest critics, the Anti-Federalists, who, ironically enough, were largely responsible for the Constitution’s best-known parts: the first 10 amendments, or Bill of Rights, which include protections for freedom of speech and the right to bear arms.
All these debates might have been confined to law journals and classrooms were it not for the fact that we now have a Supreme Court dominated by conservatives, most of whom subscribe to some form of originalism. The response of many liberal pundits has been, as it often has, to argue that originalism is just conservative politics masquerading as history. But a few legal scholars have argued that liberals should embrace originalism themselves. Since the 1990s, Akhil Reed Amar, a law professor at Yale, has been the most prominent liberal scholar to take this view, and, in a series of popular histories since then, he has argued, either implicitly or explicitly, that a careful reading of the Constitution’s history would support many liberal outcomes.
In his latest, Born Equal: Remaking America’s Constitution, 1840–1920, the second in a proposed trilogy on the Constitution’s history, Amar traces the origins of the Reconstruction amendments—the Thirteenth Amendment, abolishing slavery in 1865; the Fourteenth Amendment, establishing birthright citizenship, due process, and equal protection in 1868; and the Fifteenth Amendment, granting Black men the vote in 1870—along with the Nineteenth Amendment, which extended suffrage to women in 1920. His central argument is that these amendments succeeded because their advocates framed them as fulfillments of the nation’s founding texts, above all the Declaration of Independence’s claim that “all men are created equal.” By rooting their arguments in the Declaration and interpreting the Constitution as the Founders supposedly intended, figures like Lincoln—the book’s central hero—emerge as the first true “originalists.”
Amar’s message is hardly subtle: Liberals and progressives who try to advance equality by dismissing the Founders and the Constitution misunderstand history. The nation’s greatest strides toward equality haven’t come in spite of the Founders’ words, he suggests, but through liberals’ fidelity to them. That’s a debatable claim on legal terms, but is it even good history?
In Amar’s telling, the Declaration of Independence—250 years old this year—is the truest expression of the Founders’ ideals. Language from its soaring preamble was quickly appropriated for new state constitutions written during the American Revolution. On the eve of the Civil War, most Northern states had adopted some version of its assertion that “all men are created equal” in their constitutions, and Northern judges and lawmakers often cited this legally binding language to justify gradual emancipation. When Lincoln invoked the Declaration to validate his........