Black Originalism, Part 2

Crispus Attucks

In my last post I introduced the idea of “black originalism.”  Before delving more into some of the materials I am looking at, I want highlight what are likely to be some key points that frame the project.  Some of these might be described as methodological, others normative.  But in either event from what I have looked at so far, I think these provide a bit of the framework for the project (subject to ongoing revisions, of course!).       

John Brown

First, Black Originalism as a project should prioritize the Reconstruction Amendments and their implementation.    A common theme of black writers and speakers from the 1860s is that the antebellum United States—not just the South, but the entire country—contained important parallels to British America, with the Civil War being a second Revolution.  As activist and lawyer John Rock said, “the John Brown of the second Revolution is but the Crispus Attucks of the first.”   Reconstruction was a second founding, and should be treated as such.  This will be a markedly different view than is usually taken by originalists, who tend to privilege the founding and see Reconstruction as a restoration to a more correct (more perfect?) constitution without slavery.  

Second, the meanings that were being explored in the African-American public sphere were at once more general and more particular than is commonly addressed by originalism.  They were more general in the sense that the focus was not so much on specific “terms of art” such as “privileges and immunities” or “bear arms” as on more general concepts such as freedom and citizenship. In this sense Black Originalism is an originalism of general principles.  At the same time these discussions were more particular, involving the immediacy of freedom and citizenship: payment of wages, physical security, going to school, raising a family, boarding a streetcar, joining the army and getting equal pay, etc.  The focus was on what freedom meant in the daily lives of people for whom it had been denied (whether in slavery or in Jim Crow).  In this sense Black Originalism is an originalism of concrete expectations (although not expected applications as originalists use the term).  My sense is that to excavate the constitutional meanings evident in African-American thought and experience from this period requires a somewhat different approach to the relationship between the general and the particular than is commonly done. 

Third, the source materials will be different than in standard originalism.  Access to experiences of African Americans in the mid-19th century requires study of not only the public statements of African Americans in conventions, newspapers, essays, books, and speeches, but also the actual experiences of newly found freedom and its denial.  To the extent that there is something that can be profitably called Black Originalism, it is to be found in both written text and lived experience. 

Fourth, the very fact of thinking about Black Originalism assumes a value in, and the necessity of, pluralism in cultural meanings.  That is, if there is an African-American originalism, then there are multiple originalisms.  For those wedded to a search for fixed meanings, this will be anathema.  But this period was, in fact, a time of strict exclusions and separations.  Henry Highland Garnet’s sermon in the House was significant in large part because no African American had been permitted to speak in the chamber before him (and even his speech was not an official function).  Blacks had been barred from playing any part in the drafting of constitutional texts, including the Reconstruction Amendments (African-Americans in the South were, however, critical to ratification of the 14th and 15th Amendments).  Thus what we are presented with today is not a search for a common interpretive view of a single framing/ratifying community that can be discovered and fixed, but a series of historical interpretive communities, delineated by race and gender (and perhaps class), in which debates and discussion took place, at different levels of generality and in diverse contexts, about what a reconstructed society and political community should entail.  In this way Black Originalism rejects attempts to describe a single normative meaning or meaning community.  This is not to say that there won’t be overlapping meanings—free labor ideas permeated the discourse of both white and black communities, for instance—but rather that to understand the meanings of constitutional ideas such as freedom and equal citizenship one must look at a broad range of meaning communities and be open to multiple meanings and “meaning spectrums”, in ways too often omitted in investigations of this period (whether by originalists or non-originalists). 

At least that’s how I am currently approaching the project.  In my next post I will try to show some of this by discussing some key materials from the Black Convention Movement at the end of the civil war.

Comments

[rcg]

Nice post, especially in light of the recent discussion about ‘What Good is Legal Scholarship?’ This academic project should influence debate about the concept of originalism in general – thereby affecting academic discourse – but more importantly also educate courts about overlooked source materials when interpreting the Constitution.