Where Does Constitutional Originalism Come From?
The segregationist history of a popular legal concept
One of Donald Trump’s biggest accomplishments was putting three Supreme Court justices on the bench: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. With these three appointments, the former president was able to shape the court for decades to come — turning it decidedly rightward.
Each of these justices purports constitutional originalism as their preferred way of handling cases.
What is constitutional originalism?
Originalism is the judicial philosophy judges use to interpret the U.S. Constitution. Here’s how Stephanie Barclay, associate professor of law and the director of the Religious Liberty Initiative at the University of Notre Dame, defines it:
Originalism teaches that the Constitution’s meaning is fixed at the point it was ratified by “We the People.” And when that meaning can be discerned, a judge’s job is to faithfully apply that law to the case at hand. Originalists argue that this principle is necessary to have a “government of laws, not of men.”
In her Senate confirmation hearing, Justice Amy Coney Barrett was asked to define originalism. She put it this way:
In English that means that I interpret the Constitution as a law and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn't change over time and it’s not up to me to update or infuse my policy views into it.
Originalism means that judges should simply try to figure out what the constitution intends based on what the text meant at the time it was written. In other words, constitutional originalism shouldn’t have partisan results — rather it’s a heuristic method that excludes politics from a judge’s interpretative process. According to Barclay, this is why Justice Hugo Black, a former Ku Klux Klan member from Clay County, Alabama, could vote in support of overturning segregation in Brown v. Board of Education. Barclay argues that:
Black was convinced that “the original meaning of the 14th amendment and its two Reconstruction-era companions,” the 13th and 15th amendments, required ending this discriminatory regime. Black believed these amendments required the abolition of racial caste. And the purpose of segregation was to subordinate African Americans, and thus perpetute a racial caste. This was in direct violation of the original meaning of the Constitution, and Black believed the court had no choice but to say so.
Barclay’s example of Justice Black’s interpretation of the 13th, 14th, and 15th amendments might illustrate how originalism can result in progressive constitutional interpretations. But, as Aziz Huq, professor of law at the University of Chicago, pointed out to Tom McCarthy of The Guardian:
[Originalism] purports to be something that is moving outside politics, but it is — in its origins, and in the way that it has been applied in courts — it is tightly linked to a particular partisan political orientation.
So, there’s originalism as a legal philosophy — which warrants legal debates in the halls of the nation’s law schools. And, then, there’s originalism as constitutional politics — or the way originalism is actually applied in the real world.
Where does originalism as constitutional politics come from?
Political scientist Calvin Terbeek argues that constitutional originalism grew out of conservative political resistance to the Supreme Court’s ruling on Brown. And this resistance played out in a variety of ways. For example, writing in the Mercer Law Review in 1955, segregationist Senator Herman E. Talmadge of Georgia put his opposition to Brown this way:
The Federal Constitution does not refer to education and it does not prescribe that any educational advantages of any kind shall be provided by reason of United States citizenship. The citizen derives from that Constittuion no rights or immunities of any kind as to education in respect of his status as a citizen of the United States, nor is the Congress authorized to legislate nor has it undertaken to legislate in that regard.
Originalism gave Senator Talmadge (and other segregationists like him) constitutional legal cover for discriminatory politics. According to the senator, if the writers of the constitution had intended for the federal government to make education policy, they would’ve put the words “education” and “schools” in the document.
Senator Talmadge’s argument also had a “you should be so lucky” core to it. More from his essay in the Mercer Law Review:
Such privileges as the citizen has in respect of educational advantages or opportunities are conferred solely by state law and are possessed by the citizen in virtue of state citizenship alone. These privileges and advantages are defined by state law, and may be granted, withheld, expanded or contracted at the will of the state.
In other words, state-sponsored public schooling was a gift given by the state to its citizens — albeit one that was mandated by many state constitutions (but that’s a different story for a different day). The subtext here was that those who received this gift of state-sponsored schooling should be grateful for what they were getting — regardless of the purposeful inequities created by segregation or the racial hierarchy supported by white supremacists social structures.
This is what brings me back to Calvin Terbeek…
According to Terbeek’s analysis, conservative political elites like Senator Talmadge crafted political arguments of originalism and, then, these arguments were picked up by the conservative legal community for legitimization:
While justices and judges play an important part in constitutional politics, their roles recede in some importance once we appreciate that constitutional ideologies (like originalism) are first created by a combination of identifiably influential interest groups, governing elites, intellectuals, and engaged citizens. The professorate in elite law schools, the elite bar, and the Departments of Justice serve more of a legitimating rather than an originating role for the content of constitutional politics upon electoral success.
Or, to put things in simpler terms, Terbeek says this is what happens:
The basic political claims and anxieties of a coalition are first worked out, then legal elites complete the bricolage by rewriting a successful coalition’s constitutional vision in the policy language of law.
The moral of the story is this: the constitution is political and constitutional interpretations are drawn from political worldviews.
Who does constitutional originalism serve?
For Southern segregationists like Senator Talmadge, Brown represented an existential threat to the Jim Crow South — or, as they called it, the Southern way of life. Speaking on the Senate floor in 1963, Talmadge put it this way:¹
I am and have been a staunch adherent of the principle of self-government and local self-determination. I regard it as the cornerstone of our freedom and there is not an issue in our national life today to which I would be willing to apply it without reservation… and the crux of the present effort to force a new social order upon the South by judicial dicta — it is being done without the consent of the people directly affected… the basic question involved is far more fundamental than the mere matter of who attends what school. It goes to the very heart of our concept of constitutional, republican government: that is, the right of local people to run their local affairs in accordance with local wishes, conditions and prevailing attitudes.
But what if the local conditions and the locally prevailing attitudes deny certain groups of people their right to pursue happiness? What if the local prevailing attitudes create two classes of citizens? And what if the local conditions create social exclusions for some and not for others?
Constitutional originalism is political chicanery. Our interpretation of the constitution’s words in the 1790s was much less inclusive of all Americans than how we interpreted those same words in the 1950s when the civil rights movement challenged our notion of who should be included in the American community. And certainly, our interpretations then were much less inclusive than how we account for American society today.
How should we make sense of what the government should do?
Forget originalism. A better litmus test for federal action would be to ask ourselves this question: is it the right thing to do?
As columnist Eugene Patterson put it in The Atlanta Constitution on December 17, 1963:²
Sen. Talmadge is, as always, grieved, puzzled and outraged that the federal government could even entertain the thought of coercing people into doing what they ought to do.
Shouldn’t the purpose of government be to build a better society? One that’s just open and welcoming of all.
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Primary Sources
[1] Herman E. Talmadge Collection (Subgroup C, Series III: Civil Rights), “Schools, 1963” (Box 9, Folder 2), Richard B. Russell Library for Political Research and Studies, The University of Georgia Libraries, Athens, GA.
[2] Patterson, Eugene. “Familiar Voice, A New Theme.” The Atlanta Constitution, December 17, 1963. Retrieved from: www.newspapers.com.
