On Tuesday, Judge Amy Coney Barrett took a few minutes during her confirmation hearing to discuss her judicial philosophy, best known as originalism. It means, she explained, “that I interpret the Constitution as a law, I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time and it is not up to me to update it or infuse my policy views into it.”
Now, originalism is subject to a good deal of criticism and critique as a method for decoding the Constitution. Zeroing in on its narrow preoccupation with language, Jonathan Gienapp, a historian of the early American republic at Stanford, charges originalists with building a framework “such that no amount of historical empiricism can ever challenge it,” in which neither “the Framers’ thoughts or agendas or the broader political, social, or intellectual contexts of the late eighteenth century” have any bearing on the so-called original public meaning of the Constitution.
Likewise, the historian Jack Rakove, also at Stanford, argues in a 2015 paper, “Tone Deaf to the Past: More Qualms About Public Meaning Originalism,” that the events of the American Revolution put “sustained pressure” on critical terms like “constitution” or “executive power” that cannot be understood without a historical understanding of this political and intellectual tumult. “Anyone who thinks he can establish conditions of linguistic fixation without taking that turbulent set of events into account is pursuing a fool’s errand,” Rakove writes.
But today, at least, I don’t want to challenge originalism as a method as much as I want to ask a question: When we search for the original meaning of the Constitution, which Constitution are we talking about?
Barrett’s Constitution is the Constitution of 1787, written in Philadelphia and made official the following year. That’s why her formulation for originalism rests on ratification, as she states at the outset of a paper she wrote called “Originalism and Stare Decisis.”
Originalism maintains both that the constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative. This theory stands in contrast to those that treat the Constitution’s meaning as susceptible to evolution over time.
Many Americans think the same, identifying the Constitution with the document drafted by James Madison to supplant the Articles of Confederation and create more stable ground for national government. But there’s a strong argument that this Constitution died with the attack on Fort Sumter on April 12, 1861.
The Civil War fractured an already divided country and shattered the constitutional order. What came next, Reconstruction, was as much about rebuilding that order as it was about rebuilding the South. The Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country. “So profound were these changes,” the historian Eric Foner writes in “The Second Founding: How the Civil War and Reconstruction Remade the Constitution,”
that the amendments should not be seen simply as an alteration of an existing structure but as a “second founding,” a “constitutional revolution,” in the words of Republican leader Carl Schurz, that created a fundamentally new document with a new definition of both the status of blacks and the rights of all Americans.
Whereas the Constitution of 1787 established a white republic in which the right to property meant the right to total domination of other human beings, the Reconstruction Constitution established a biracial democracy that made the federal government what Charles Sumner called the “custodian of freedom” and a caretaker of equal rights. To that end, the framers of this “second founding” — men like Thaddeus Stevens, Lyman Trumbull and John Bingham — understood these new amendments as expansive and revolutionary. And they were. Just as the original Constitution codified the victories (and contradictions) of the Revolution, so too did the Reconstruction Constitution do the same in relation to the Civil War. [Continue reading…]