After Justice Antonin Scalia died, many speculated that
originalism would die as well, without
one of its most tireless adherents on the bench. Not if Justice Ruth Bader Ginsburg has
anything to say about it. While Justice
Ginsburg is rarely classified as an originalist, during her tenure on the
Court, she has written a series of brilliant text and history opinions,
powerfully making the case that Constitution’s text and history point in a
progressive direction. Her masterful
originalist opinion in Evenwel v.
Abbott, decided earlier this week, is just the latest example of
progressive originalism in action.
Evenwel, a case
engineered by conservative activist Ed
Blum, concerned the question whether states are required under the
Fourteenth Amendment to draw legislative districts composed of substantially
equal numbers of eligible voters. In
rejecting this radical claim, Ginsburg proceeded in originalist fashion: “We
begin with constitutional history.”
Justice Ginsburg’s opinion, joined by five other members of
the Court, including Chief Justice John Roberts and Justice Anthony Kennedy, walked
through the Constitution’s text and history in painstaking detail,
demonstrating that the Constitution’s Framers—both at the Founding and after
the Civil War—affirmed total population as the Constitution’s basis of representation,
insisting that all persons deserve representation. In the words of Senator Jacob Howard—whose
speech introducing the Fourteenth Amendment in the Senate was quoted at length
by Ginsburg—the total population rule “is the safest and most secure principle
upon which the government can rest.
Numbers, not voters; numbers, not property; this is the theory of the
Constitution.” As Ginsburg observed,
“[t]he Framers of the Constitution and the Fourteenth Amendment comprehended”
that “representatives serve all residents, not just those eligible or
registered to vote.” Evenwel is a huge win for our democracy,
affirming that all persons, whether or not voters, count in our polity.
Evenwel moves the law decisively in a progressive direction. Before this week’s ruling, a number of lower
courts had held that the decision whether to use total population or some other
metric was up to the states, relying on a 1966
ruling that permitted Hawaii to draw district lines based on the number of
registered voters to account for the state’s substantial temporary military
population. Rather than rely on that
precedent, Justice Ginsburg anchored her opinion directly in the Constitution’s
text and history, making clear that counting all persons is “the theory of the
Constitution” when it comes to representation.
If Blum tries to engineer
a new test case by convincing a state or local government to draw districts
based on the number of eligible voters, Ginsburg’s affirmation of
constitutional principles of representational equality offers a powerful
argument to challenge the exclusion of children, un-naturalized immigrants and
others who are not eligible to vote.
Ginsburg’s originalist turn is nothing new. In 2011, at a panel discussion on the 40th
anniversary of the decision in Reed v. Reed, in which then-lawyer Ginsburg
convinced the Supreme Court to strike down state-sponsored gender
discrimination as a violation of the Equal Protection Clause for the first
time, Ginsburg said that she “counts
[herself] an originalist.” Responding
to the argument that the Framers of the Fourteenth Amendment did not mean to
prohibit sex discrimination, she explained that the text of the equal protection
guarantee and the full sweep of our nation’s constitutional history—from the
Declaration of Independence, to the Fourteenth Amendment’s universal guarantees
of equality, and, finally, to the Nineteenth Amendment’s protection of a
woman’s right to vote—invalidates state laws that deny women equal citizenship
stature.
Justice
Ginsburg’s opinions on the Supreme Court embrace originalism as
well. In 2012, in NFIB v. Sebelius, Justice Ginsburg
laid out a powerful originalist case for upholding the constitutionality of the
Affordable Care Act, demonstrating that the original meaning of the Commerce
Clause gives Congress broad power to solve national problems. Ginsburg’s separate opinion in NFIB told how the Framers at the
Constitutional Convention in Philadelphia designed Article I’s grant of powers
to give broad powers to the federal government “in all Cases for the general
interests of the Union, and also those to which the States are separately
important.” This key idea—contained in
Resolution VI of the instructions given to the Committee of Detail, which was
body tasked with writing the Constitution’s actual language—had not previously
been cited by any Justice of the Supreme Court, but Ginsburg made it the
linchpin of her partial dissent, showing that the “ACA addresses the very sort
of interstate problem that made the commerce power essential in our federal
system.”
In 2013, in Shelby County v. Holder, Justice
Ginsburg delivered another brilliant originalist dissenting opinion, taking the
Supreme Court’s conservative majority to task for gutting the Voting Rights Act.
The majority, she wrote, had turned a blind eye to the fact that “the
Constitution vest powers in Congress to protect the right to vote, and in
particular to combat racial discrimination in voting” and ignored the
Reconstruction Framers’ purpose “to arm Congress with the power to protect all
persons within the Nation from violation of their rights by the States.” The Amendment’s Framers, Ginsburg argued,
had given Congress—not the courts—broad power to select the remedy for racial
discrimination in voting. By refusing to
follow this text and history and second-guessing Congress’ judgment that the
Voting Rights Act was still needed to stamp out state-sponsored racial
discrimination in voting, she wrote, “the Court errs egregiously.”
As NFIB and Shelby County exemplify, over the last
decade, Justice Ginsburg has powerfully shown that the Constitution’s text and
history point decidedly in favor of progressive outcomes. Now, in Evenwel,
she has shown that progressives can win at the Supreme Court using originalist
arguments, moving the law more in line with the inclusive democracy reflected
in our Constitution.
With a vacancy on the Court to be filled and the votes of
some of the Court’s current conservative Justices sometimes in play, Justice Ginsburg
may have a host of new opportunities to move the law back in line with the
Constitution’s text and history. On so
many of the biggest questions in constitutional law—from voting rights, to the powers
of the federal government, to access
to courts, to the protection
of fundamental rights and equality
under the law—the Constitution’s text and history favor progressives. As Evenwel
shows, Justice Ginsburg is an originalist to reckoned with.
David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center. This post is cross-posted on Text and History.