Black Originalism, Part 1

In prior posts I wrote about two speeches/dialogues from 1865: Henry Garnett’s speech and sermon in the House (here and here), and the exchange between William Sherman and Garrison Frazier in Savannah.   As I mentioned, these are two sources that I am looking at in my project of exploring African-American writings, speeches, and actions from the period to help think about the possible meanings of the Reconstruction Amendments.  I'll now take a break from my 150-year anniversary posts to give an overview of the project.

By the 1860s African Americans had built a well-established discourse and activist community in the North.  It developed with the abolitionist movement, but it also functioned as a support network for building African-American civil society in the Jim Crow culture of the North.  With the end of slavery, southern black communities immediately engaged in public discussions and debates about the meaning and implementation of freedom and citizenship.  And with Reconstruction, black representation in local, state, and national government was brief but substantial. The ideas discussed and advanced within the black public sphere provide an important source for how freedom and citizenship were being thought about at the time by the people for whom it meant the most.  And while historians have been exploring black history from this period for a number of years, very little of this has made its way into legal or constitutional analysis.

The main exception to this has been the use of African-American sources in the Second Amendment cases, Heller and McDonald, relying in part on work by scholars (Akhil Amar, Robert Cottrol & Raymond Diamond, and others), and in Justice Thomas’s opinions on affirmative action (e.g. Grutter).  Both the majority opinion and Justice Thomas’s concurrence in McDonald cite black newspapers and black conventions to support an individual rights reading of the amendment as incorporated through the Fourteenth Amendment.  I don’t know about you, but this struck me as odd. 

First, it seems strange that the main use of sources from Reconstruction-era black history is to support the right to bear arms and not more “traditional” civil rights such as access to public facilities.  This is especially so given that, from what I was aware, the writings and speeches of African Americans from the period barely touch on the right to bear arms, compared to questions such as voting, education, public accommodations, etc.  (Arms-bearing was important, it just was not front-and-center the way other issues were--more on that later.)  Second, it struck me as odd (and interesting) that it was the conservative wing of the court employing originalist analysis that has made the most use of these sources. Liberals have generally overlooked those sources, even when they use other historical materials.

This got me thinking about the possibilities of what could be called “Black Originalism.”  Originalism is generally seen as incompatible with, and even hostile to, the interests and concerns of African Americans, as Jamal Greene as so nicely shown.  Yet non-originalists (livingists, if you will) have not done a very good job of considering, let alone incorporating into constitutional interpretation, the sources and meanings of black history either.  Perhaps, then, it is worthwhile to look at sources from black orators and writers from the period surrounding the Reconstruction Amendments and see how they might speak to constitutional meanings.  If we do, what might we see?  What was the role of an individualist right to bear arms?  How important were ideas of suffrage, access to public facilities, education?  To what extent did these ideas map discussions in the dominant society, and in what ways did they differ for black Americans?  How did ideas of gender play out in discussions of freedom and citizenship?

As can be seen even in the sources such as Garnet’s sermon and Frazier’s colloquy, there are themes one can find in these materials, themes such as the importance of labor rights, education, and land ownership to any meaningful conception of freedom and equal citizenship.  And as the Garnet sermon also shows, these themes were embedded in a 19^th Century context which is not necessarily amenable to a modern conservative-liberal lens. 

At least these were some of the questions and thoughts I had.  As I will tease out more in subsequent entries, whatever this project does, it is going to require a quite different approach to originalism than is generally accepted.  But as I also hope to show, originalism may create some opportunities for giving black history from this period more valence and weight in constitutional analysis, something which might be valuable for originalists and living constitutionalists alike.