Monday, March 22, 2021

The Racist Roots of Originalism

 By Eric Segall

In an important new article in the American Political Science Review (behind a pay wall), Calvin TerBeek has uncovered substantial data to suggest that what we think of as modern originalism was motivated first and foremost by political and legal opposition to Brown v. Board of Education. Today's judges who self-identify as originalists will likely ignore this scholarship but originalist academics should not. They need to explain how a contemporary movement born in the racism of the 1950's and 1960's has evolved beyond that racism. At the end of this post, I'll offer a few tentative thoughts on race and originalism today.  

Most people who have catalogued originalism in articles and books tell a familiar story. Although the original intent or meaning of the Constitution has always been one factor in constitutional interpretation, or more precisely a factor in how judges explain their decisions, the oft-told story is that Judge Bork (as a Yale law professor) and Raoul Berger brought the movement to life in the 1970's as a response to the perceived excesses of the Warren Court. Their work was touted by  Ronald Reagan's Attorney General Ed Meese and Justices William Rehnquist and Antonin Scalia but originalism still skirted the edges of bench, bar, and legal academia. The Federalist Society was created around the same time by these men along with Steve Calabresi to make originalism mainstream, but the going was slow in the 1980's.

Once conservatives seized power of the federal judiciary in the 1990's after 12 years of Reagan/Bush  judges and justices, a new form of originalism emerged, led by Justice Scalia's pivot from original intent to original meaning and the work of academics such as Keith Whittington, Larry Solum, and Randy Barnett. These so-called New Originalists dropped the deference aspects of originalism touted by Bork and Berger and eventually moved away from a purely historical originalism to a more linguistic-focused originalism. Then came numerous other originalist theories, such as original-methods originalism and originalism-is-our law originalism. Today, most originalists admit that originalism is actually a family of different theories united by the ideas that the meaning of the Constitution was fixed at ratification and that meaning, where it exists, binds judges. This standard narrative is in my book Originalism as Faith as well as other historical summaries of originalism.

Now, Calvin TerBeek has entered the fray and rattled the premises of this oft-told story. His article suggests that most of the legal elites who people claim brought the originalism movement to the American people as a separate theory of constitutional interpretation were late comers. That, in fact, the movement was not created by Bork and Berger but rather by people like former journalists William F. Buckley and James Kilpatick as well as conservative politicians like segregationist Senators James Eastland and Richard Russell. This is not to say that the role of history in constitutional interpretation only started in 1954. It is to say that originalism as a social and political movement started after Brown.

Just days after the Supreme Court decided Brown, Russell took to the Senate floor to criticize the decision in the harshest of terms. Russell said the decision "substituted psychology for law." A like-minded conservative district court judge in Texas reacted to Brown by saying that "if the colored child" suffers harm from segregated schools, then "the white child by the same psychological processes of [Brown's] reasoning may be found subject to an inferiority complex by reason of being required to sit in classes with the colored child."

TerBeek's article explains how Kilpatrick, who had the ears of numerous racist Senators as well as George Wallace and the Republican National Committee, led a campaign arguing that Brown was sociology not constitutional interpretation. Shortly after the opinion came down, he wrote to Senator Harry Byrd and said, "I would toss an old battle-cry back at the NAACP. Hell, we have only begun to fight."

Soon thereafter, Buckley, Kikpatrick, and other conservative commentators launched a full-scale attack on Brown. One method was to argue that the Fourteenth Amendment was never validly adopted. In 1958, based on the work of Kilpatrick and others, the National Review ran an editorial saying that when "certain ancient spiritual values are recovered, the [14th & 16th] Amendments that have perverted the Constitution will in the nature of things be reamended." Other noted conservatives at the time, like Dan Smoot, a former FBI agent, argued that the Reconstruction Amendments were enacted by northern soldiers using "army bayonets" to escort "illiterate negroes and white carpetbaggers to the polls," and the only option to undo Brown, "was to eliminate the 14th Amendment and nullify all court decisions and laws based on it."

These direct attacks on the validity of the Fourteenth Amendment were, however, according to TerBeek, "too transparent" and therefore the conservative opposition to Brown moved to arguing that the intent of the Amendment demonstrated that Brown was incorrectly decided. Barry Goldwater's famous conservative book The Conscience of the Conservative, which Pat Buchannan called "our new testament," argued that recovering the Constitution's intent was a judge's sole job, and that "the [14th] amendment was not intended to, and therefore did not, authorize any federal intervention in the field of education." The book was published in 1963, years before Bork's famous Indiana Law Journal article which many scholars, including myself, mistakenly marked as the beginning of the modern originalism movement.

TerBeek's article proceeds to document the efforts of numerous politicians and pundits in the 1960's to argue that the intent of the 14th Amendment was to allow segregated schools and that the Brown Court acted unlawfully by rejecting that original understanding. For example, in 1962 Kilpatrick wrote a book called "The Southern Case for School Segregation," in which he argued against Brown on the basis that there is only one legitimate method of constitutional interpretation and that is to "give effect to the intent of the framers of the organic law and of the people adopting it." This was a decade before Raoul Berger wrote his influential book "Government by the Judiciary," in which he argued Brown was decided incorrectly based on the original intent of the 14th Amendment.

There is a lot of other fascinating history in TerBeek's article that goes beyond the conservative criticisms of Brown based on originalism. An influential law professor named Alfred Avins argued in favor of literacy tests in 1966 in Katzenbach v. Morgan. After the argument, he wrote to William F. Buckley that the "beginning, middle, and end of all constitutional inquiry is the original intent of the framers." Again, this was well before Bork and Berger published their works on originalism. Avins also wrote to Buckley after the latter published an article in opposition to civil rights legislation that, "from this Article, I gather you have an interest in race relations."

TerBeek's main thesis in his article, which is part of a larger book project, is that the true beginning of today's originalism stemmed from conservative opposition to Brown, to civil rights laws, and to other progressive decisions such as Reynolds v. Sims' one person-one vote rule, which itself was a response to racist districting to keep Blacks from having any real voting power. This re-telling of the origins of originalism is, of course, important as an historical matter but why, if at all, is that history important today?

One of the most powerful arguments against originalism today is that it privileges the values and opinions of slaveholders and segregationists over more contemporary understandings. Additionally, today's originalists generally believe that affirmative action is unconstitutional, that voting suppression tactics such as Voter ID laws are constitutional, that Congress' power to enforce the 14th and 15th Amendments should be quite narrow, and that after centuries of slavery and segregation we should just start over with a non-textual, rigid, color-blindness rule. As I've written before here, "one would think anyone wanting judges to make decisions today based on a world where only white males had equal rights under the law would develop a sophisticated theory why that is something judges ought to do. Very few originalists deal with this problem in any manner, much less a persuasive one."

Today's originalists are not racists like Senators Russell and Byrd and journalists Buckley and Kilpatrick. No one should read me as suggesting that. But it is also true that most of today's originalists are much less receptive to judicial interference with institutional racism than non-originalists. Given how the movement started, given that originalists are overwhelmingly white, and given that, as TerBeek shows, originalism has deep racist roots, this newfound history must be a part of the originalism story and maybe, just maybe, today's originalists should be a little more sensitive to, and reflect more deeply about, the connections between originalism and race.

8 comments:

  1. "One of the most powerful arguments against originalism today is that it privileges the values and opinions of slaveholders and segregationists over more contemporary understandings."

    I think the appropriate path of constitutional interpretation is to allow all of history to be our guide. This concern factors in but it only takes me so far. If the "founders" were benign types, I still would find it wrong to rely on some fixed point of time two hundred years hence or something, even if we as a society became worse in the span.

    Just what history "tells" us in this area has also been greatly debated. In this context, the people who crafted the 14th Amendment at times (AT TIMES) involved people with views that would now seem radical to many. Liberals can use history too in that regard. The 14A was ratified to fight the slaveowners after all. Some were against segregation. The Chief Justice even dissented when a woman lost her challenge that she had the privilege to practice law.

    But, even there, the understanding only went so far. Charles Sumner (who lost a battle to desegregate Boston schools along with a black lawyer in the 1850s) on his deathbed begged Congress to pass a civil rights bill to desegregate public accommodations. There was a strong opposition and the law was watered down before passage. The Supreme Court later found Congress went too far, with one dissent.

    It might surprise that on the 14A point, those rulings are actually still good law.

    The article doesn't surprise me though in these cases I tend to leave open how far to take something -- various factors tend to be involved. It would be interesting to compare it to how history was used in constitutional legal race questions in antebellum times.

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  2. "One of the most powerful arguments against originalism today is that it privileges the values and opinions of slaveholders and segregationists over more contemporary understandings."

    By that logic, then any consideration of original meaning is illegitimate. Non-originalists like to say that they respect constitutional text when it is clear. But respecting the clear rules of the constitution is still privileging the values and opinions of long dead slaveholders. No sensible person writing a constitution today would elect the president through a mechanism like the electoral college. If the real contest is between the values and opinions of slaveholders versus the values and opinions of modern society, then the clarity or not of the text that those slaveholders wrote has nothing to do with it.

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  3. If it is clear, it's clear -- it is when it is not crystal clear when the other stuff starts to be put in the weighing. The Constitution has a lot of open to argument.

    If something is clearly required by text, we are stuck with it. The debates, however, come when there is more breathing room. So, e.g., the Fugitive Slave Clause was something that an antebellum judge was stuck with. But, what is compelled by it is far from clear. The book "Justice Accused" discussed judges allegedly "forced" into doing things that were actually choices.

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  4. This post lays out baseline evidence for my whole take on originalism:

    Originalists today know in their heads and heart that you can’t get to Brown via their philosophy. In psychology terms, that creates a boatload of cognitive dissonance - i.e., “how can I possibly sleep at night defending Plessy?” So in classic mental coping mode, they rationalize a more flexible originalist paradigm, leaving just enough room to enter the modern age.

    But what’s critical here is that resolving cognitive dissonance doesn’t equate with sound judicial perspective. In fact, the former just results in arbitrarily moving the goal posts in the latter to feel better about things. And the whole contortion exercise just proves that the constitution isn’t determinate on big things; even those who tout a static rule set evolve the filters.

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  5. With respect, Mr. Segall, this is a very very bad attempt at connecting originalism and racism. While Russell et al. were undoubtedly wrong in their opposition to and/or criticism of Brown, claiming originalism has racist origins makes as much sense as saying the House of Representatives has racist origins: in both cases, those origins are minimal at best and no evidence exists to say definitively "This [the House or Originalism] would not exist but for the racist origins." The strongest justification I have found for Originalism, in the sense of "original meaning", a justification which still holds independent of any associated racism or lack thereof, comes from the Supreme Court nomination hearings of then-Judge Scalia (for the record: I am no Scalia fan; he merely articulated the argument better than anyone I have otherwise heard): to paraphrase and extrapolate from His Honor's testimony, the Constitution and its words, phrases, clauses, and sentences, whether in the original body or amendment, were all adopted with a reasonably expected meaning at the time of that adoption via a democratic process and to have a non-democratic body use anything other than that reasonably expected meaning would be to replace that democratically adopted meaning, violating the Law of Least Surprise; therefore, the reasoning goes, the Judiciary must interpret the same in the manner most consistent with that reasonably expected meaning at the time of adoption, giving a greater sense of stability in the law, insulating it from any undue twists of the political winds, and reducing the perceived partisanship of the Judiciary as a whole, even if individual members of the Judiciary might appear partisan from time to time.

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  6. @egarber: If the Original Meaning doctrine had been used in Plessy, the Court would have ruled the opposite way and the subsequent mandatory integration would mean Brown would have been unnecessary. So, there is nothing intellectually inconsistent with an Originalist saying "Plessy was wrong; therefore Brown was right." Unless you are conflating "original meaning" with "precedent"? If so, you might be working with the wrong framework.

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  7. The thrust of my point is that originalism has morphed from expected application to these other paradigms to avoid ugly results. So in my view, public meaning is just moving the goal posts around. As a result, at this point originalism is plastic enough for pretty much any desired result.

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  8. I'm reminded of Justice Souter's Harvard speech.

    https://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/

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