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.