{"id":13235,"date":"2024-03-21T17:56:10","date_gmt":"2024-03-21T21:56:10","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=13235"},"modified":"2024-03-21T17:57:46","modified_gmt":"2024-03-21T21:57:46","slug":"originalism-a-conservative-doctrine-or-an-opportunity-to-expand-rights","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/originalism-a-conservative-doctrine-or-an-opportunity-to-expand-rights\/","title":{"rendered":"Originalism: A Conservative Doctrine or An Opportunity to Expand Rights?"},"content":{"rendered":"<p><strong>By Nathalie Beauchamps<\/strong><\/p>\n<p>In the aftermath of the Supreme Court\u2019s decision in<em> New York State Rifle &amp; Pistol Ass\u2019n, Inc. v. Bruen,<\/em> <a href=\"https:\/\/www.youtube.com\/watch?v=PWRJiC5L744\"><span style=\"text-decoration: underline\">legal scholars<\/span><\/a> have wondered how far the Court\u2019s text, history, and tradition test can extend. Could the Supreme Court use it to strip away all rights which did not exist during the Constitution\u2019s ratification?<\/p>\n<p>The Supreme Court\u2019s decision in <em>Bruen<\/em> was a win for constitutional originalists. In an era of mass shootings (there is an <span style=\"text-decoration: underline\"><a href=\"https:\/\/www.bbc.com\/news\/world-us-canada-41488081\">average of two<\/a><\/span> mass shootings in the United States per day), the Supreme Court took the opportunity to expand gun rights. Justice Thomas, <span style=\"text-decoration: underline\"><a href=\"https:\/\/www.supremecourt.gov\/opinions\/21pdf\/20-843_7j80.pdf\">writing for the majority<\/a><\/span>, shirked the means-end scrutiny test that the Court had previously utilized to evaluate potential intrusions on Second Amendment rights, and instead adopted a \u201ctext, history, and tradition\u201d test. As Justice Thomas explained, \u201cit has always been widely understood\u201d that the Second Amendment protects a \u201c<em>pre-existing<\/em> right.\u201d He argued that this right is \u201cinherited from our English ancestors,\u201d and that this right is so foundational to our nation\u2019s history that the Court is not entitled to engage in \u201cinterest-balancing\u201d by asking whether the right is really \u201cworth insisting upon.\u201d Rather, he argued, the Second Amendment is already a product of interest-balancing by the people who ratified the amendment. Thus, any government that chooses to stand in the way of this manifest history must show why its regulation is, instead, consistent with it.<\/p>\n<p>What is striking about the <em>Bruen <\/em>opinion is that it represents one of the few ways that originalism is used to expand a right <span style=\"text-decoration: underline\"><a href=\"https:\/\/www.brennancenter.org\/our-work\/analysis-opinion\/originalism-run-amok-supreme-court\">rather than to limit it<\/a><\/span>. While most progressives view originalism as a rights-stripping doctrine, even conservative jurists have failed to take originalism to its logical extent by exercising the various ways it could be used to expand rights. Originalism could reflect a version of American history which is far more complex than the historically cursory opinions of conservative jurists. It is, thus, worth carefully considering both the merits and pitfalls of originalism.<\/p>\n<p>Originalism arguably holds the greatest potential for expanding civil rights as it relates to rights created during the Reconstruction era. Legislative history leading up to the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments tells a far more dynamic story of the government\u2019s view of civil rights than many modern originalists have been willing to concede. For instance, the Reconstruction Congress adopted a number of social welfare programs in the years following the Civil War that were <span style=\"text-decoration: underline\"><a href=\"https:\/\/digitalcommons.law.uw.edu\/faculty-articles\/304\/\">only accessible to black Americans<\/a><\/span>. More telling is the <span style=\"text-decoration: underline\"><a href=\"https:\/\/www.senate.gov\/artandhistory\/history\/common\/generic\/FreedmensBureau.htm#:~:text=On%20March%203%2C%201865%2C%20Congress,including%20newly%20freed%20African%20Americans.\">legislative history<\/a><\/span> behind the Freedman\u2019s Bureau Act of 1866 which, in the aftermath of the Civil War, aimed to \u201cprovide food, shelter, clothing, medical services, and land to displaced Southerners, including newly freed African Americans.\u201d Congress at the time debated whether the act justifiably focused on freedmen (who were all black Americans) or if the act was objectionable for giving \u201cspecial treatment\u201d to black Americans. After President Johnson vetoed multiple versions of the bill, <span style=\"text-decoration: underline\"><a href=\"https:\/\/digitalcommons.law.uw.edu\/faculty-articles\/304\/\">it finally passed<\/a><\/span> with a super-majority of Congress believing that \u201cspecial treatment\u201d of former slaves was authorized under the Thirteenth Amendment. <span style=\"text-decoration: underline\"><a href=\"https:\/\/digitalcommons.law.uw.edu\/faculty-articles\/304\/\">In that same year<\/a><\/span>, Congress passed the Civil Rights Act of 1866, which protected black Americans\u2019 right to enforce contracts, sue in court, inherit, lease, and hold personal property, and more broadly enjoy the same fundamental privileges of citizenship as did white Americans. More compelling is that Congress planned to enforce this Act against private citizens. This would be inconceivable today, considering the Court has long established that the federal government can only enforce the Fourteenth Amendment (and the Fifteenth Amendment) against state actors. According to Nikolas Bowie in <em>Federal Constitutional Law<\/em>, legislative history shows that Congress proposed the Fourteenth Amendment in part to vindicate its right to enforce the Civil Rights Act of 1866 against private citizens, which is ironic considering the Supreme Court\u2019s subsequent development of the state action doctrine. Thus, during the immediate years preceding and following the ratification of the Reconstruction Amendments, the Reconstruction Congress (essentially the \u201cFirst Congress\u201d of the Reconstruction Amendments) greenlit the enforcement of civil rights against private citizens and created an affirmative action program.<\/p>\n<p>Reconstruction era history not only supports the expansion of equal protection and citizenship rights but also provides evidence for <span style=\"text-decoration: underline\"><a href=\"https:\/\/www.washingtonpost.com\/outlook\/2022\/05\/03\/reconstruction-amendments-matter-when-considering-abortion-rights\/\">Congress\u2019s support of reproductive rights<\/a><\/span>. In 1866, Senator Howard of Michigan noted on the Senate floor that formerly enslaved people had lacked access to reproductive and familial rights as a result of their servitude. Enslaved women were known to have refused to bear children or to have frequently self-performed abortions. Underlying this practice was enslaved people\u2019s strong aversion to bearing children born into servitude. The lawmakers of the Reconstruction era were aware of this history. As <span style=\"text-decoration: underline\"><a href=\"https:\/\/www.washingtonpost.com\/outlook\/2022\/05\/03\/reconstruction-amendments-matter-when-considering-abortion-rights\/\">NYU Law Professor Peggy Cooper Davis<\/a><\/span> put it, the Reconstruction Amendments were \u201cdesigned to extend to all people the right to have autonomous life choices of the kind that slavery had so cruelly restricted.\u201d Some congressmen were more explicit about this right to familial, reproductive, and bodily autonomy, including Representative John Creswell of Maryland, who lamented that enslaved people could not assert their rights to their own children or bodies.<\/p>\n<p>Thus, originalism could be utilized to uphold or even expand the rights that progressives care about. Where, then, does originalism go wrong?<\/p>\n<p>Unfortunately, the doctrine of originalism is too manipulable to be a principled approach for either expanding or for limiting rights. The conservative justices on the Supreme Court have frequently chosen to use originalism to limit rights, but they are inconsistent in how they deploy the doctrine. Originalism as a sophisticated approach to the Constitution did not develop until <span style=\"text-decoration: underline\"><a href=\"https:\/\/historynewsnetwork.org\/article\/who-invented-originalism\">recently<\/a><\/span>. The appeal of originalism, however, reaches deep into the American psyche. As <a href=\"https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=2379587\"><span style=\"text-decoration: underline\">Yale Law School Professor Jack Balkin<\/span><\/a> described, originalism reflects the \u201cpopular imagination [of] the American nation [which] was created by Americans themselves through a self-conscious act of political revolution.\u201d Moreover, this \u201cstory\u201d developed \u201cAmericans\u2019 special veneration of the founding generation and particular figures within that generation (like George Washington and James Madison) as culture heroes.\u201d<\/p>\n<p>Professor Balkin\u2019s use of the word \u201cstory\u201d is particularly accurate within the modern context of originalism because judges and justices use originalism to quite literally craft stories from the history of our nation. Judges are no historians, yet they often take bold stances on their preferred versions of history and what this history should tell us about ourselves. For instance, in <em>Dobbs v. Jackson Women&#8217;s Health Organization<\/em>, the <span style=\"text-decoration: underline\"><a href=\"https:\/\/www.supremecourt.gov\/opinions\/21pdf\/19-1392_6j37.pdf\">Supreme Court crafted a story<\/a><\/span> of abortion rights in the United States to suggest that the framers and ratifiers of the Constitution never intended to protect a right to abortion. As Justice Alito explained, \u201cover three-quarters of the States had adopted statutes criminalizing abortion\u201d when the Fourteenth Amendment was ratified. This evidence supported the assertion that voters at the time valued human life over a right to abortion. In doing so, Justice Alito ignored a part of history, rejecting the contention that this anti-abortion sentiment more likely reflected a Protestant movement against Catholic women who were, at the time, giving birth at higher rates in the United States. The Court, further, refused to consider the views of legislators at the time because \u201cinquiries into legislative motives are a hazardous matter.\u201d<\/p>\n<p>Furthermore, originalism can often lead to undesirable outcomes even when a historical analysis, albeit cursory, is generally accurate. Justice Alito entertained a similar originalist argument in his <span style=\"text-decoration: underline\"><a href=\"https:\/\/www.supremecourt.gov\/opinions\/19pdf\/17-1618_hfci.pdf\">dissent<\/a><\/span> in <em>Bostock v. Clayton County<\/em>, in which he rejected the majority\u2019s assertion that Title VII of the Civil Rights Act of 1964 applies to discrimination on the basis of sexual orientation. He stipulated that it is simply not reasonable to think that Congress in 1964 meant to protect the LGBTQ+ community because \u201cthe plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment.\u201d Alito\u2019s argument is reminiscent of Justice Taney\u2019s argument in <em>Dred Scott v. Sanford<\/em>, one of the most loathsome Supreme Court decisions in United States history. In determining whether the Constitution viewed black people as citizens, <span style=\"text-decoration: underline\"><a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/60\/393\/\">Justice Taney argued<\/a><\/span> that it was simply not reasonable to think that the Framers meant to encompass black people into the citizenry because \u201cthey were at that time considered as a subordinate and inferior class of beings who . . . had no rights or privileges but such as . . . the Government might choose to grant them.\u201d Perhaps Justices Alito and Taney had a point, which suggests the more obvious shortfall of originalism: the United States often had a far narrower sense of justice and equality in the eighteenth and nineteenth centuries than it does today, and originalism cannot expand beyond those historical limits.<\/p>\n<p>Overall, it appears that originalism could serve as a vehicle for progress or for restraint, and reckoning with the truly nuanced aspects of American history could support either use. Regardless, however, a central issue with originalism is that judges are no experts on history. Rather, judges have frequently demonstrated that they are unable to reckon with the complexity of American history and choose time and again to cherry pick the parts of history that best serve their goals. I would posit that originalism should not be abandoned simply because it does not promote the \u201cright\u201d rights (for instance, gun rights instead of abortion rights), but because it relieves courts from doing the work to consider which rights we care about today. <span style=\"text-decoration: underline\"><a href=\"https:\/\/newrepublic.com\/article\/63773\/what-jefferson-said\">Thomas Jefferson<\/a><\/span> himself wrote that the Constitution should be re-written every nineteen years such that each generation should have the \u201csolemn opportunity\u201d to update it. The Constitution matters not because of what the Framers thought about it, but because of what Americans today think about it.<\/p>\n<p>Living constitutionalism is not so difficult a task as some make it out to be, nor is it any more unmoored from the text of the Constitution than is originalism. As with <em>Bruen, <\/em>the Supreme Court in <em>Obergefell<\/em> <em>v.<\/em> <em>Hodges<\/em> looked beyond the text of the Constitution to determine whether it should enforce a right. While the <em>Bruen <\/em>court surveyed American history to find the principles that would moor its opinion, the <span style=\"text-decoration: underline\"><a href=\"https:\/\/casetext.com\/case\/obergefell-v-hodges\"><em>Obergefell<\/em> Court evaluated<\/a><\/span> principles reflective of contemporary American society to conclude that same-sex couples have a fundamental right to marriage. These principles were 1) marriage is inherent in the concept of \u201cindividual autonomy,\u201d 2) marriage is a two-person union that is more fundamental than other relationships, 3) marriage protects children and families, and 4) marriage is a \u201ckeystone of our social order.\u201d From this, the Court found irrefutably that laws restricting same-sex marriage \u201cimpose stigma and injury of the kind prohibited by our basic charter.\u201d While the Court recognized that same-sex marriages had been denounced as immoral throughout much of this nation\u2019s history, this history did not limit or supersede the principles of the day.<\/p>\n<p>Ultimately, the Court should be more transparent about which principles it adopts rather than couching them within the doctrine of originalism. As <span style=\"text-decoration: underline\"><a href=\"https:\/\/www.youtube.com\/watch?v=PWRJiC5L744\">Yale Law School Professor Reva Siegel<\/a><\/span> argued, originalism is in fact a \u201cliving constitutionalism\u201d that is simply \u201cnot forthright about its values, aims, and commitments.\u201d Furthermore, to the extent that originalists hold the bona fide belief that there is merit in evaluating current-day rights through a historical lens, they should consider consulting with historians who will likely provide a more nuanced version of history than the version that originalists usually espouse.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Originalism could be utilized to uphold or even expand the rights that progressives care about. Where, then, does originalism go wrong?<\/p>\n","protected":false},"author":42,"featured_media":13236,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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