Thursday, June 25, 2020

Optimistic Originalism, the Sequencing Problem, and Chris Green on the Sense-Reference Distinction (Part III)

Stephen Griffin

This is the third in a series of posts related to my article “Optimistic Originalism and the Reconstruction Amendments.”  This post discusses a central argument in the article advanced against theories of original public meaning (OPM), which I call the sequencing problem.  I will  illustrate this problem by focusing on an influential article by Chris Green, “Originalism and the Sense-Reference Distinction.”  I employ his article partly because this appears to be Chris Green week at Balkinization and also because he had plenty of objections to what I said about his work in “Optimistic Originalism” at the February originalism conference at the University of San Diego.  So this is also by way of reply.  The conference is viewable on YouTube.

The sequencing problem is related to an originalist argument advanced by Justice Harlan in dissent in Reynolds v. Sims.  This case mandating the apportionment of state legislatures on the basis of population alone is surely a key test for any form of living constitutionalism or originalism.  Along with other Warren Court cases, it is the origin of a doctrine still very much with us – that the equal protection clause limits the ability of states to restrict the right to vote.  However, Justice Harlan notably criticized the majority opinion for completely ignoring the adoption history of the Fourteenth and Fifteenth Amendments.  He noted that none of the clauses of section 1 of the Fourteenth Amendment were regarded at the time as creating a right to vote.  Indeed, this was something specifically denied by its framers.  That the Fourteenth Amendment had nothing to do with voting rights is supported by what happened next – namely, that the framers thought it necessary to create a presumably new restriction on the ability of states to deny the right to vote on grounds of race in the Fifteenth Amendment.  This suggested to Harlan that although the Fifteenth Amendment is directed at preserving the right to vote against such denials, the Fourteenth is not.

The logic of this argument can be extended to all of the Reconstruction amendments.


The amendments suggest a sequence in which the framers are trying to solve a number of problems    arising out of the Civil War to be sure, but one especially knotty problem in particular, that is, how to guarantee equal rights to African Americans as a matter of state law (with the proviso that the Thirteenth Amendment of course applies to federal law and individuals as well).  This formulation is strongly implied by the focus of the 1866 Civil Rights Act, the first significant enactment concerning rights after the passage of the Thirteenth Amendment.  This Act is obviously centrally concerned with providing rights to black citizens that are already provided to white citizens.  All three Reconstruction Amendments can be usefully viewed as providing different and potentially overlapping answers to this conundrum – taking on the elimination of slavery in the Thirteenth, defining citizenship and providing basic civil rights (although not voting rights, as just mentioned) in section 1 of the Fourteenth, and voting rights in the Fifteenth.

As I discuss in detail in the article, an objection to OPM emerges when it becomes clear that it cannot view the meaning of the amendments in this sequential fashion.  This is because OPM allows its adherents to downplay or even ignore the specific views of the framers on the grounds that they are merely the “intent” or “expectations” of specific individuals.  Remarks made during the adoption history of the amendments may be evidence of original meaning, but they are not controlling.  That is, they are not the law.  Indeed, they cannot be if you understand OPM theory because it appeals ultimately to the common public meaning the words and phrases had at the time.  The implications of this move for the Reconstruction amendments is especially evident in the recent scholarship of Steven Calabresi.  He embraces the invitation to, in effect, throw out evidence from adoption history in favor of producing what amounts to an alternate reality “optimistic” history of Reconstruction.  But why pay attention to adoption history at all?  Isn’t that the discredited idea of looking to intent?  Actually, whether we look for the “public meaning” or the “intent” of the Reconstruction Amendments, neither of these inquiries cover all the possibilities of how the process of adoption constitutes the law, at least in a conventional sense.

This can be seen if we turn to an example provided in the Chris Green article mentioned above.  I should preface this next part by saying it is not meant as a thorough discussion of Green’s article, which is long and complex.  I pick out the elements that seem most relevant to my argument in “Optimistic Originalism.”  But there is one specific example Green provides which is very helpful.  In a lengthy footnote, he illustrates the sense-reference distinction by describing a debate between Raoul Berger and Hugo Bedau over the “cruel and unusual punishments” clause of the Eighth Amendment.  In the end Berger agreed that for him, the sense of the clause was ineluctably tied to its specific eighteenth-century referents (those specific punishments used in the eighteenth century), a position which has few adherents as Green suggests.  On the basis of this example, the sense-reference distinction seems cogent and can be applied to the Reconstruction amendments.  That’s the project Green advances in his useful article.

But the sequencing of the Reconstruction amendments demonstrates a difficulty with OPM which Green does not anticipate.  Suppose the framers of the Eighth Amendment had not hit their target precisely the first time?  Suppose they adopted another amendment (and then a third, and so on) to fix a problem with the first.  Would it not follow that the meaning of the original Eighth Amendment was restricted in the way suggested by the sequence?  That is what is going on with respect to voting rights during Reconstruction.  If you look closely at Reconstruction history (as many historians have!) you can find plenty of OPM-qualified evidence that the Thirteenth and Fourteenth Amendments especially were taken to means all sorts of things that the framers of those amendments directly denied they meant in the processes of adoption and ratification.  The way OPM slices this historical reality is thus revealed as partial, even biased, at least in terms of Reconstruction, in favor of an overly “optimistic,” or presentist view of what the amendments mean.  In other words, a view overly flavored with contemporary values.

Perhaps history did in fact turn out that way so that the “radical” Republicans won the day, as Michael McConnell in effect contended in his famous article on Brown.  Or perhaps not.  But if history took another path, you won’t find that out using OPM methodology.  Where does this leave us?  With respect to the general tenor of Green’s argument, he does not take account of the fact that during Reconstruction, the framers of the amendments had and were taken to have epistemic and legal authority over the legal content of the amendments.  Amidst a party-political constitutional regime to which they had to answer, the framers controlled the legal content of the amendments.  They knew the amendments better than anyone else and, in addition, made all sorts of promises to their fellow party members about what the Thirteenth and Fourteenth amendments covered and what they did not.  To take another example, they assured everyone that the amendments would not change the legal status of women.  Then as many scholars have argued, they botched the adoption of the Fifteenth Amendment so that it did not apply to ostensibly race-neutral laws that unfortunately had the effect of denying the right to vote to nearly every African American in the South.  This shows that there is another category the debate over originalism has ignored, a category apart from considerations of “original meaning,” “intent” or “expectations.”  We can usefully regard this category as having to do with the design, plan, and institutionalization of the Reconstruction amendments.  We should direct more attention to understanding those factors.

The promises and mistakes of congressional Republicans during Reconstruction created the twentieth-century constitutional reality to which the civil rights movement responded during the Second Reconstruction.  Why that movement had to proceed largely through fundamental Supreme Court opinions and “framework” legislation rather than amendments is a story for another day.

What happens if we stay with OPM methodology?  We get what I call “Civil War denialism.” This denialism is well illustrated in the recent work of William Baude and Stephen Sachs, which will be the subject of my fourth and final post in this series.

Older Posts
Newer Posts