Originalism, the Colorblind Constitution, and Some Preliminary Thoughts on Where the Debate Should Go From Here

In an earlier post titled "Was Originalism Born in Sin?," I sketched out some evidence suggesting Bork's proto-originalism, as found in his oft-cited 1971 Indiana Law Journal article, was informed by anti-Brown narratives, especially those focusing on the "original intent" of the Fourteenth Amendment’s framers, and the simultaneous disparagement of social science. These narratives were initially voiced by, among others, virulently racist Mississippi Senator James Eastland, massive resistance columnist James Kilpatrick, and Barry Goldwater's ghostwritten The Conscience of a Conservative (penned by National Review editor L. Brent Bozell). The upshot was that originalism's intellectual history, given that it is an important idea, is worth studying and it is a history originalists should grapple with (but largely have not).

One interesting critique of my argument, explicitly made by Steven Sachs, and implicitly by Rick Garnett, was that the genetic fallacy posed problems vis-a-vis any real bite to my argument: that is, the current content of originalism cannot or should not be impugned by its unsavory origins. I am not convinced by this critique, and set forth some reasons why here. Indeed, it seems lost on originalists and their fellow ideological travelers that their critiques of the Progressive Era and “living constitutionalism” highlight the racist views held by many of these reformers at that time (with the odd implication that originalists and libertarians are the heirs to racial liberalism today).  

At all events, it remains the case that no one has disputed the through lines from the segregationist/states' rights rhetoric to Bork's academic argument for original and framers' intent. Furthermore, another widely-held originalist argument, the colorblind constitution, is not subject to the genetic fallacy objection. Political scientists have demonstrated that the package of ideas making up colorblind constitutionalism, a view held by many originalists today, were repackaged by the very same racial conservatives who had previously spoken out against desegregation. It is also another instance of originalists failing to grapple with their own history.

A short delineation of this transformation and why it has significant implications for the current theoretical project of originalism follows below.

On July 21, 1978, under the guise of chastising the media for failing to properly recognize the difference between a Supreme Court decision based in "social policy" and one with "constitutional warrant," Robert Bork published an op-ed for the Wall Street Journal criticizing the Court's decision in Bakke. Bork told his (implicitly conservative) readers not to revel too much that "the hard-core racists of reverse discrimination" had been defeated because Powell's opinion gave the Court's imprimatur to "some, but not too much, reverse discrimination." Powell's vision of the 14th Amendment was neither "pro-black" nor "colorblind," but without a "constitutional footing of its own."

With a bit more sophistication and slight modification, this remains the core of the narrative many originalists prefer when discussing race-based rights claims. Michael Rappaport, a leading originalist legal academic, defends the notion of the color-blind constitution as consistent with 14th Amendment's original meaning. John McGinnis, Rappaport's frequent co-author, states that colorblindness was the “core ideology of the Republican Party” while inexplicably lamenting that it may no longer be so. The Federalist Society's blog is replete with briefs for the colorblind constitution. Steven Calabresi's Regnery Press book with a foreword by Justice Scalia, Originalism: A Quarter-Century of Debate, features a debate wherein the colorblind constitution is defended. (I am uninterested here in the thoroughly stale critique that Justices Scalia and Thomas never grounded their affirmative action decisions in originalism).

The argument is not limited to originalists, but constitutional conservatives inspired by a different tradition. Imprimis, a monthly publication of Hillsdale College (with a "genuinely stunning circulation of 2.7 million” and connected to the Claremont Institute (where Justice Alito gave a remarkable speech last February)), ran an article during the pendency of the Fisher I case. The article contended not only -- as is typical of this Jaffa-inspired group -- that the "Constitution was intended by the Framers to put the principles of the Declaration into practice" and that the "Constitution should not be subject to the faddish trends of social science," but instead the text dictates the "simple" and "elegant" solution of colorblind constitutionalism. (And this is to say nothing of Ed Blum’s spectacularly successful record of defending aggrieved whites subject to “reverse discrimination,” funded by the conservative donor network).

In sum, colorblind constitutionalism is as much an article of faith for the conservative movement as it is for many originalists. Yet, just as "original intent," "framer's intent," what James Bingham thought he was enacting (see Senator Strom Thurmond's questioning of Thurgood Marshall at the latter’s nomination hearings), all had racialized undertones, so too does the history of the argument for a colorblind constitution. As Desmond King and Rogers Smith usefully put it:

Senator Ervin best exemplifies the segregationists’ reformulation of their views. In 1956, Ervin helped draft the Southern Manifesto denouncing Brown v. Board of Education and asserting states’ rights to operate segregated institutions—which, again, Ervin saw as conforming to natural law. With South Carolina Senator Strom Thurmond, Ervin weakened the enforceability of the Civil Rights Act before voting against it. Then in 1969, Ervin, stressing that he had never endorsed racial inequality, assailed the Nixon administration’s Philadelphia Plan because it involved hiring ‘‘on the basis of race.’’ Ignoring his past support for segregation, Ervin insisted that constitutional principles of individual rights meant that public policies had to be fully color-blind, made ‘‘without regard to race." This was a textbook repurposing of political language.

Originalists will surely stress that theirs is a theoretical interest (this claim can be plausibly made by Keith Whittington) and can be divorced from this history. But this move – exemplified here in the face of substantial evidence to the contrary – is belied by the political acts of many originalist scholars. Originalists, it seems, retreat into a philosophy of law stance when it serves their purpose, but at the same time conduct litigation campaigns, appear on conservative talk radio shows, write op-eds supporting the appointment of conservative judges and justices, fete conservative justices at Federalist Society gatherings, and so on. Many times, it seems originalists have more in common with the New Left activist-intellectuals of the 1950s and 1960s than (say) H.L.A. Hart or even Ronald Dworkin (who had his own high-brow political perch at the New York Review of Books). It is difficult to think of another putatively theoretical school of thought that has embraced the political process as actively.  

This points up why originalism’s history has bite. When they engage in deeply political acts, originalists are, in the least, implicitly giving imprimatur to the political history of the conservative movement, including its racialized past (and present). Originalist theory qua theory could be more purely an academic enterprise, but originalism has become so tightly tied to the conservative movement it cannot be said to be simply that. Originalists, if they want to convince the skeptics their motives are what they say they are -- getting constitutional interpretation and construction “right” -- should shun the largely partisan political activity that currently inheres in the theory/movement as constituted. A clearer demarcation between those who interested in the theoretical enterprise and the political enterprise is needed. Those interested in crafting the best theoretical version of originalism should better police this now porous border. If not, originalism may collapse under its own weight if it continues as a largely political and theoretically insular intra-mural debate (much of the legal scholarship in the law reviews reveals an epistemic closure wherein (conservative and libertarian) originalists cite other (conservative and libertarian) originalists as ballast for their intra-originalist disputes while ignoring fundamental theoretical questions).   

And there are significant unresolved theoretical issues to tackle. Setting aside my intellectual history argument, originalists have not adequately: (1) answered why Grice is relevant to the original public meaning; (2) responded to critiques of their reading of Wittgenstein and Skinner; (3) shown they understand what historians do and how they approach their intellectual task; and (4) demonstrated how originalism can avoid the problems of historicism. Unanswered critiques here include Gienapp's Fordham Law Review article and his second Process essay, and Saul Cornell's response to Solum’s Virginia Law Review essay. Neither have originalists adequately explained why the Constitution is the special province of academic lawyers and, therefore, what historians are doing is "history department law" (Michael Klarman's The Framer's Coup now requires a persuasive answer to this question).

With the successful nomination of Neil Gorsuch -- and the concomitant attention lavished on originalism in the press -- along with the possibility of another Federalist Society-vetted and directed nomination during Republican control of the White House and Senate, originalists may feel triumphant. But this is political ascendancy. New originalists scholars have been talking for at least 14 years of a theory “working itself pure.” One way to speed up the process is to start separating the theoretical wheat from the political chaff.

Comments

[Enrique Guerra Pujol]

TerBeek is calling for a kind of "unilateral disarmament." I'm sure conservative law professors (all five of them) would be happy to stop engaging in politics if the rest of the legal academy did so as well.

[Benjamin Fischer]

"It is difficult to think of another putatively theoretical school of thought that has embraced the political process as actively."
I think you could try a bit harder. For this critique to have bite, I think you need to specify other schools of thought you are comparing to within the legal community. I mean, quite a number of constitutional professors write amicus briefs defending reproductive rights, and run legal clinics of this sort. They will also, in the same breath, defend the constitutional legitimacy of Roe v. Wade. Some (not me, certainly!) might comment that this behavior is awfully predictable from their political preferences.

Should we conclude that under your theory, such constitutional scholars should also abjure from partisan causes, in order to convince skeptics? Or should we conclude that all constitutional scholars engage in partisan behavior? In which case, originalism might be no worse than theories that defend reproductive rights as constitutional rights.

[Edward Cantu]

As a constitutional law professor who is pro-choice, pro-GLBT (yes, that's how I write it) rights, and who thinks that Lawrence v. Texas is one of the best decisions the Court has ever made, etc., it is obvious to me that the "enlightened common sense" echoing in legal (and the humanities and social science) academic halls is politics by another name.

[Deep State Special Legal Counsel]

Originalism could save the Republic from the likes of T-Rump and his nativist ilk. Structurally, the Founders came up with a slow, methodical, multi-layered system to counter the "Twitters" of the future. This is where the debate should be heading...

[Brad]

Isn't this all an ad hominem argument? "Segregationists believed (or claimed to) that courts should not legislate from the bench, so the belief that courts should not legislate is invalid." There is simply no logic here for originalists to engage with.

I also do not understand what TerBeek's point is with Bork's decrying the Brown decision. Is TerBeek implying that Bork was motivated by racism?

[David Bernstein]

As an identified "fellow traveler", and someone with a deep interest in the history of various ideological movements within constitutional law, this post paints with far too broad a brush. Just for example, Bork was a self-identified libertarian through the late 1960s with little expressed interest in constitutional law. His views, by his undisputed account, were influenced by Alex Bickel, a liberal who was gradually turning conservative (or at least anti-judicial review) on constitutional issues thanks to what he saw as the excesses of the Warren Court in the 1960s. Neither Bickel's evolution nor Bork's took place in response to Brown, and indeed their mutual evolution on constitutional law took place over a decade later. So what does this have to do with Brown? Note the Bork's first big originalist piece was on freedom of speech, not equal protection.
It's also worth noting the the most prominent proto-originalist of the day, Hugo Black, joined the unanimous opinion in Brown. So I think it's well worth studying the influence that the segregationist right had on the development of originalism, but it's far too simplistic to say that Bork's originalism, much less the originalism of his successors, was a direct descendant of segregationist legal theories.

[anon]

As usual, the "scholars" don't appear to have read the article TerBeek claims demonstrates Bork's racially motivated position on Brown:

"But one thing the Court does know: it was intended to enforce a core idea of black equality against governmental discrimination. And the Court, because it must be neutral, cannot pick and choose between competing gratifications and, likewise, cannot write the detailed code the framers omitted, requiring equality in this case but not in another. The
Court must, for that reason, choose a general principle of equality that applies to all cases. For the same reason, the Court cannot decide that physical equality is important but psychological equality is not. Thus, the no-state-enforced-discrimination rule of Brown must overturn and replace the separate-but-equal doctrine of Plessy v. Ferguson. The same
result might be reached on an alternative ground. If the Court found that it was incapable as an institution of policing the issue of the physical equality of separate facilities, the variables being insufficiently comparable
and the cases too many, it might fashion a no-segregation rule as the only feasible means of assuring even physical equality. In either case, the value choice (or, perhaps more accurately, the value impulse) of the fourteenth amendment is fleshed out and made into a legal rule-not by moral precept, not by a determination that claims for association prevail over claims for separation as a general matter, still less
by consideration of psychological test results, but on purely juridical grounds."

That's pretty much it. That's the basis for a series of posts labeling the whole Bork analysis of Brown a pretext for racism! (The first part of the article, which was actually a lecture, concerned Griswold, of course (as did Biden's interrogation at his confirmation hearings) not Brown.)

The clap trap theory asserted above is therefore really and truly appalling. It is made up of whole cloth, and it is a ridiculous slur and slander on a number of scholars.

Agree or not with his conclusions, how refreshing it was to read the Bork piece, and remember how a true scholar presents a legal analysis: clear writing and compelling logic and analysis, chock full of citations and examples to support the points made.

Compare that piece with a load that strings together unrelated works of others, labels those works with derisive, unfair and inaccurate personal attacks on the motivations of the scholars behind the propositions stated therein, and you then have a clear picture of what the legal academy has wrought.

Happy?