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.
x
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.