Originalism and the "New Constitution"

(AP Photo/J. Scott Applewhite)

This writer happened upon an article on a website called Bearing Arms after linking to it from another article while noodling about on the Internet.  Doing the research, that article was in response to another article by Jamelle Bouie in the New York Times.  Violating my self-imposed policy about reading opinion columns in the New York Times, I just had to read the original.  Sometimes when you research something, you have to dirty yourself and do these things.

The Times article is, as noted, by Jamelle Bouie, an opinion columnist for that paper and others.  He is some self-described commentator on racial issues because he is black.  The title of his article is “Which Constitution Is Amy Coney Barrett Talking About?” with the subheading, “Her originalism ignores the significance of the Second Revolution.”  I believe his article shows ignorance on many levels starting with the title.  To wit, as far as anyone knows, there is only one Constitution- the one written in 1787, ratified in 1788, and amended several times throughout our history.

Bouie goes on to “define” originalism by citing selective historians and then veers from the subject saying he does not want to debate the efficacy of the philosophy of originalism.  It is a good thing that Bouie is a columnist and not a professor of Constitutional law, theory, or history.  Instead, he seems to believe that if one adheres to the originalist idea of Constitutional interpretation, then one is determined to return America to the 18th century where men have muskets, women tend to the children 24/7, and the South abounds in slavery.

Taking a few quotes from Barrett, he seems to have a problem with a paper Barrett wrote called “Originalism and Stare Decisis.”  He then makes the ludicrous assertion that the original Constitution written in 1787 was shattered by the Civil War and its aftermath.  He argues that the Reconstruction amendments- numbers 13,14, and 15- rewrote the Constitution.  Then, he goes all 1619 Project and states:

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. [Emphasis mine]

According to Bouie, these Amendments fundamentally changed the original Constitution and that “originalism” fails to take this into account.  This is a ridiculous argument since we can use originalism to prove it wrong.  Our Founders knew full well that despite their efforts, what they brought about in that hot Philadelphia summer of 1787 was not a perfect document in all respects.  We know that from Madison’s notes of the debates, the drafting and redrafting, the edit changes, and the many compromises that were necessary to “form a more perfect Union.”  We know because of the ratification debates in the states and from the Federalist Papers.

What they provided, with very little debate over the substance, was a means to make the Constitution “better” through the amendment process.  Even still, they created a document that attempted to come close to perfection and to protect it from being sullied by making the process of amending the Constitution necessarily tough.  It takes two-thirds of the states to add an amendment.  Convincing 67% of the states to agree on anything– in 1788 or 2020- was/is a tough task.  The original Bill of Rights was an easy task.  Others came about given particular political circumstances unforeseen and the amendments clarified the process.

Just as we view the Bill of Rights as part of the Constitution, so too do originalists view the Reconstruction amendments.  What Bouie misses and probably has no concept of is the idea of Constitutional incorporation.  Originally, the Bill of Rights applied only to the federal government.  But with the passage of the 14th Amendment, particularly its Due Process Clause, slowly the Bill of Rights were applied to the states.

Bouie states that these amendments so fundamentally changed the original Constitution that they effectively rewrote the Constitution.  In reality, it was the Supreme Court’s interpretation of the 14th Amendment that fundamentally changed things.  And that was a long road taken.

Most scholars believe that incorporation started in a case in 1897- more than 30 years after this alleged “new Constitution-” having nothing to do with the aftermath of the Civil War, but with the Just Compensation Clause of the Fifth Amendment.  States were not bound to the First Amendment’s Free Speech Clause until 1925.  As of 2020, only four amendments are fully incorporated with regards to states- the First, Second, Fourth, and Eighth.

Let’s take a look at this allegedly new Constitution written in 1867.  In the following, note the years of incorporation, since they blatantly disprove Bouie’s theory:

  • First Amendment Establishment Clause- Everson vs. Board of Education- 1947;
  • First Amendment Free Exercise Clause- Hamilton vs. Regents- 1934;
  • First Amendment Free Speech Clause- Gitlow vs. New York- 1925;
  • First Amendment Free Press Clause- Near vs. Minnesota- 1931 and;
  • Second Amendment Right to Bear Arms- McDonald vs. Chicago- 2010.

The Fourth Amendment’s incorporation did not occur until the 1960s and likewise with parts of the Fifth Amendment.  In 2019, the Excessive Bail Clause of the Eighth Amendment was finally incorporated (Timbs vs. Indiana).

A “new Constitution” was not written in 1867.  An original Constitution was amended.  Supreme Court jurisprudence then used those Civil War amendments to incorporate the Bill of Rights with respect to states.  It took 58 years (!) to apply the Free Speech Clause to the states and over a century with the Second Amendment.  That is hardly evidence for a “new Constitution.”

What Bouie misses in his whole argument and totally ignores is that an originalist views amendments as part and parcel of the Constitution.  That is the proper way to change or perfect the original document, not to perceive it as some “living, breathing document.”  As the Bearing Arms article correctly points out in contradiction to Bouie’s argument:

Bouie claims that the “Second Constitution” fundamentally differed from the actual Constitution ratified in 1787, but in actuality, neither the Thirteenth, Fourteenth, or Fifteenth Amendments created new rights. They extended the protections of existing rights to a class of Americans that had previously been denied their liberty.

Likewise, the women’s right to vote and lowering the national voting age to 18 extended existing rights; it did not create a right.

Whether you are an originalist in the mold of Scalia, Alito and Barrett, no one has a problem looking at the Constitution as written in 1787 and the underlying reasons for those words as well as every amendment since the original ratification.

Bouie cites Barrett’s comment regarding originalism:

…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. [Emphasis mine]

That is originalism in a nutshell.  To the extent that the Constitution “lives and breathes,” it does so through the amendment process, not through a judge injecting their personal views into the interpretation of black and white words on a parchment of paper.

That view may upset liberals who manage to find kindred judges willing to subvert the will of the people through their elected representatives, as recent election law changes by judges has proven, but the mindset of Barrett is what there must be more of on the Supreme Court.  Hiding behind a black robe to correct what they perceive as an ill affecting the country has no place on the Supreme Court.

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