Originalism's Racist Birth and Subsequent Death

A few weeks ago at the Federalist Society National Convention, Judge Patrick Bumatay of the U.S. Court of Appeals for the 9th Circuit declared that, “we are in the golden age of originalism,” and that judges should have "unwavering adherence to the original public meaning of the Constitution, come hell or high water." At the same convention, 5th Circuit Court of Appeals Judge Andrew Oldham forcefully proclaimed that originalism had won and questioned whether the Federalist Society should remain a "debating society," or just declare victory because "originalism does yield clear and objective answers.”

These judges are incorrect. Originalism has not won other than as an identity card for people who want to attain success in conservative and Republican Party political and judicial circles. In a forthcoming article, I document extensively the almost complete absence of originalism in most important Roberts Court decisions.

But regardless of whether I am right or wrong about all that, if these judges and others think that we are in "the golden age of originalism," they should be interested in how we got here and the origin story of the doctrine they love so much. And here we have "breaking news" thanks to extensive research by a brilliant young historian. But first the back story.

In the late 1990's, I decided to search for the first law review article to ever discuss the virtues of originalism versus living constitutionalism. I discovered a 1900 Harvard Law Review article written by Arthur Machen, Jr., called "The Elasticity of the Constitution." I then wrote an article for Constitutional Commentary that argued that Machen said everything important there was to say about originalism and living constitutionalism. As I have summarized on this blog before:

Machen urged lawyers and judges to recognize that the . . . meaning of the Constitution never changes. That observation is consistent with what current adherents of the doctrine believe. The original meaning of the Constitution is fixed at the time of ratification and that meaning does not change. However, Machen went on to say this in the second part of his article:

It does not follow that an act which was unconstitutional one hundred years ago must necessarily be so held to-day.... For while denying in the most unqualified terms the notion that the Constitution is capable of a varying construction, we may often be swayed by the same arguments advanced in favor of that heresy, and even reach the same results, but in a perfectly legitimate way, simply by a careful discrimination between matters of law and fact. The law of the Constitution remains forever unchanging: the facts to which it must be applied are infinitely various.

Machen gave an example of what he meant. He suggested that a law passed at the behest of margarine sellers in the year 1900 forbidding the sale of butter would likely be interpreted by the courts as an arbitrary denial of due process of law. But if the facts about the two products changed, and people began preferring margarine to butter, and now people were concerned that sellers of butter were trying to pass off that product as margarine, then on "those facts the legislature might constitutionally prohibit the manufacture and sale of butter just as acts absolutely forbidding the sale or manufacture of oleomargarine are now upheld.  In that circumstance, the interpretation of the Constitution has not changed--the same definition of 'due process' would be given. It is the facts which would have changed."

In other words, judges can reach conflicting decisions over time by applying the same original meaning to changes in law and society. This is exactly the type of originalism, and the only one, that judges apply today. This method explains why in 1868 the phrase "equal protection of the laws" did not guarantee equal rights for women but does today, according to most originalists. 

They begin by saying that the original meaning of the 14th Amendment was anti-caste. The people back then did not see gender discrimination as anti-caste, but they were simply incorrect. This position is held by none other than the Co-Founder of the Federalist Society and leading originalist Steven Calabresi, as well as by Larry Solum, another leading originalist, who has written:

In Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender.... Bradwell could have been understood as consistent with the [14th Amendment] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. 

But a method of constitutional interpretation that allows judges to discard the known applications of the ratifying generation in favor of new applications is virtually indistinguishable from living constitutionalism, as many scholars, including Peter Smith and Tom Colby, have carefully documented.

I bring all of this up again because of a new article about Machen sent to me by historian Austin Steelman titled: "The Birth of the Dead Constitution: Arthur Machen Jr.’s Early Twentieth-Century Originalism." Steelman credits me with shedding new light on this article and agrees that originalism that can discard known expected applications is an originalism capacious enough to justify virtually any result an originalist wants to reach (as the Roberts Court has shown again and again), 

But what I did not know about Machen was that he was steadfastly opposed to equal rights for Black Americans and spent the decades after writing his article fighting against giving Black people the right to vote.  He put forth obviously inaccurate views of the 15th Amendment that: it a) was not lawfully enacted; and b) even if it were, it did not apply to state elections.

We now have two amendments to the traditional narrative about the history of originalism. Although most people, including myself, usually traced the beginning of the doctrine to the 1970’s and the Robert Bork/Raul Berger responses to the Warren Court, Calvin Teerbeek has shown that the desire to employ the original intentions (now meaning) of the Constitution actually begun as a racist response to Brown v. Board of Education in the 1950's. 

But it turns out, Teerbeek did not go back far enough. Machen's 1900 article, the first to ever use the phrase the "Living Constitution," would to a great extent lead to his racist rewriting of the 15th Amendment and his efforts to justify denying Black voters the franchise. I did not know this history when I first wrote about his article.

I strongly recommend Austin Steelman's  article which contains far more about originalism's birth than I am relating here. Not only does he persuasively argue that originalism was born in racism but that Machen's 1900 originalism suffers from all the same flaws today's originalism suffers from. According to Steelman, originalism then and now has the following defects (he supports all of these conclusions in great detail):

1) Originalists often incorrectly treat the 1791 Constitution more reverently than the Reconstruction Amendments (this was how Machen argued the 15th Amendment itself was unconstitutional);

2) Originalists favor the will of the anti-democratic Founders and Ratifiers over the desires of today's popular majorities to make America more democratic and equal for everyone;

3) There is a strong relationship between originalism and faith (Machen was deeply religious. I believe someone recently wrote a book called "Originalism as Faith");

4) Originalism as espoused by both Machen and today's originalists is capacious enough to justify just about any result anyone wants to reach in any real case. There is simply no constraint there; and 

5) Originalism then and now almost always takes a back seat to the values, politics, and preferences of whoever is using originalism as an interpretative tool.

To be clear, I am not saying today's originalists are racists or liars. I am saying that originalism was born and raised arm-in-arm with racism, and today's originalists should recognize that and distance themselves from the theory's origins.

But more importantly, originalism was born dead and remains dead to this day. It is imagination, not reality, identity, not serious legal interpretation. And this new article about the oldest originalism article yet discovered by anyone makes all those points and more. I highly recommend it.

-- Eric Segall