Balkinization: Optimistic Originalism and the Reconstruction Amendments

Optimistic Originalism and the Reconstruction Amendments

Stephen Griffin

After quite a bit of work over the last two years, I've finally posted "Optimistic Originalism and the Reconstruction Amendments" on SSRN. The link is here. I hope to be doing some posting on what I learned about Reconstruction and originalism from the project in the next few weeks (when I'm not posting about the current policy disaster!). The abstract follows:

This article critically examines the relationship of contemporary “public meaning” originalism to the legal achievement of the Reconstruction Amendments. It identifies an influential “optimistic” trend in recent originalist scholarship. A growing number of scholars contend that public meaning originalism can successfully address constitutional issues in light of the Reconstruction amendments. They argue that rightly understood, the Fourteenth Amendment’s original meaning aligns precisely with contemporary case outcomes, especially with respect to providing broad antidiscrimination rights to African Americans and women.

In this article I challenge originalism’s optimistic turn by examining it through a historical lens. Based on a wide-ranging review of recent historical scholarship, I argue that the theory of original public meaning in effect gives scholars permission to be optimists about Reconstruction by allowing them to sidestep its full historical context. This avoids the reality that relative to the point of view of Americans today, the constitutional law of the nineteenth century was unfortunate in many ways.

The argument presented in this article concerning the extent to which the Reconstruction amendments changed prior law has significance beyond the confines of the debate over originalism. The questions raised concerning the cogency of optimistic originalism suggests we should reassess the role of Reconstruction in contemporary legal scholarship. Many constitutional scholars are similarly “optimistic” about the Reconstruction amendments even though they do not count themselves as originalists. I have come to doubt whether the legacy of Reconstruction is as uniformly constructive as it is often represented – at least by legal scholars as opposed to historians.

I argue that the limits of Reconstruction become clearer once we focus on the question of whether there were constitutional reasons for its failure, reasons that were only later addressed, however incompletely, in the Second Reconstruction of the civil rights movement. My account suggests that if we are interested in understanding how constitutional law changes legitimately both inside and outside Article V, revisiting Reconstruction through the use of sound methods based in the practice of historians should steer us away from originalism and toward historicist theories of constitutional change.

The article proceeds in four parts. Because the debate between originalism and nonoriginalism is ongoing and multifaceted, Part I provides a necessary orientation to the debate and roadmap of the arguments and themes pursued in the rest of the article. Parts II and III are the heart of the article. Part II reboots the discussion of Reconstruction for legal scholarship by describing its historical context in a way that reveals its constitutional limits. I then use this context to critique prominent optimistic originalist accounts, including those presented by Michael McConnell and Steven Calabresi, of the Fourteenth Amendment in Part III. I first present what I call the “sequencing argument,” detailing a problem that arises only for public meaning originalism. The remainder of Part III discusses two central issues for optimistic originalism: racial equality, especially with respect to school desegregation, and equal rights for women. Part IV draws on the historical discussion in the previous parts and the idea of “constitutional change as state building” to provide an overview of the failure of the First Reconstruction and show why the Second Reconstruction was legally necessary.

Posted 3:35 PM by Stephen Griffin [link]