Originalism

Do Originalists Ignore the Reconstruction Amendments?

The accusation is often made. But it simply isn't true.

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Critics of originalism sometimes claim that originalists focus only on the original 1787 Constitution, while ignoring the Reconstruction amendments, which transformed the Constitution after the Civil War. Sometimes, this criticism is combined with the argument that the neglect of the Reconstruction Amendments is intended to privilege white men over blacks and other racial minorities, whose rights those amendments were enacted to secure. Such arguments have gotten renewed prominence in the wake of the controversial nomination of Amy Coney Barrett to the Supreme Court—thanks in part to a New York Times op ed by Jamelle Bouie, arguing that originalists ignore the fact that "[t]he Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country." He concludes that "The Reconstruction Constitution is a fundamentally different document than the Constitution of 1787. Yet our conversations around 'original meaning' rarely take account of this change."

A recent op ed by MSNBC contributor Hayes Brown similarly accuses originalists of ignoring "the fundamental constitutional shift that occurred after the passage of the 13th, 14th and 15th amendments." Such claims are not new. But they are badly wrong. Those who accuse originalists of ignoring the significance of the Reconstruction amendments are themselves of guilty of ignoring a vast originalist literature devoted to that very subject.

In reality, numerous prominent originalist legal scholars have written extensively about the Reconstruction amendments and their significance. Michael McConnell (a well-known originalist who was, for a time, also a federal judge) has authored prominent articles on the original meaning of the Fourteenth Amendment with respect to both racial discrimination and the meaning of due process of law. Steve Calabresi (another prominent originalist legal scholar, and co-founder of the Federalist Society), has coauthored prominent articles arguing that the original meaning of the Fourteenth Amendment provides broad protection against both racial discrimination and sex discrimination. Christina Mulligan has an important article outlining how we can and should take account of diverse perspectives (including those of women and racial minorities) in understanding the original meaning of the Constitution. Her work is of obvious relevance to interpretation of the Reconstruction amendments.

Co-blogger Randy Barnett ,Evan Bernick, and Kurt Lash, are among a number of originalist legal scholars who have written major works on the meaning of the Privileges or Immunities Clause, in some cases arguing that it provides broad protection for a wide range of rights—far beyond what is protected by the courts today. Bernick also has a pathbreaking new article arguing for a broader interpretation of the Equal Protection Clause, contending that its original meaning imposes an affirmative duty of protection on the state, not merely a duty to avoid racial discrimination. Michael Rappaport, another leading originalist constitutional theorist, has written notable articles exploring the implications of the original meaning of the Fourteenth Amendment for affirmative action programs, and for regulatory takings.

In my book The Grasping Hand, I discuss the impact of the Fourteenth Amendment's "incorporation" of the Bill of Rights against state governments for "public use" constraints on government power to take private property. I argue that the Reconstruction-era understanding of public use—as revealed in contemporary court decisions,  debates over the abolition of slavery, and the framers' goal of protecting blacks and white Unionists against state governments —provides a stronger basis for enforcing tight limits on government's power to take private property than is evident in the original 1791 meaning of the Fifth Amendment.

Nor is originalist interest in the Reconstruction Amendments just a product of recent years. McConnell's work on race discrimination dates back to the 1990s. As far back as 1980, Bernard Siegan published Economic Liberties and the Constitution, which argues that the original meaning of the Fourteenth Amendment provides much broader protection for economic liberties than modern judicial doctrine is willing to recognize. Prominent early originalists such as Robert Bork and Raoul Berger also wrote about the original meaning of the Fourteenth Amendment in the 1960s and 70s, though most modern originalists (myself included) would today argue that Bork and Berger got many things wrong.

It's also worth noting that pretty much all of the above writers recognize that the Reconstruction amendments made major changes to the existing constitutional order. Few if any originalists claim that the original 1787 Constitution somehow remains in force with few or no significant changes.

There has been much less originalist analysis of the meanings of the Thirteenth and Fifteenth Amendments. But that is in large part because there is less controversy about these amendments than the Fourteenth. Nonetheless, there is a growing originalist literature on these amendments, as well. Notre Dame law Professor Jennifer Mason McAward, for example, has done important work pushing back on the newly popular idea that the Thirteenth Amendment gives Congress broad power to legislate against any injustices than can in some way be indirectly linked to slavery, though she also emphasizes that it does give broad power to suppress slavery and "involuntary servitude" themselves.

With the exception of Raoul Berger (an idiosyncratic liberal who was often associated with conservatives), the above-listed works are all by conservative or libertarian originalists. It is they who most often get accused of ignoring the Reconstruction amendments. But it is important to recognize that liberal originalists have also written major works on the Reconstruction Amendments. Akhil Amar, for example, has literally written the book on how those amendments should change interpretation of the Bill of Rights.

The works mentioned above are just a sample of the vast outpouring of writings on the Reconstruction Amendments produced by originalists over the last several decades. For reasons of space, I have had to omit a great many important books and articles on numerous issues.

It is fair to argue that prominent originalist judges haven't focused on the original meaning of the Reconstruction amendments nearly as much as academics have (though that is not true of several, like McConnell, who are—or have been—both scholars and judges). Still, originalist judges are far from simply ignoring those Amendments.

Clarence Thomas, for example, has written a well-known opinion arguing that the original meaning of the Fourteenth Amendment strengthens the case for "incorporating" the Second Amendment right to bear arms against the states. The drafters of the Amendment, he points out, believed this to be an important safeguard for blacks' rights against oppression by racist state and local governments. As far back as 1973, Justice William Rehnquist's dissent in Roe v. Wade was based in large part on arguments drawn from the original meaning of the Fourteenth Amendment. And these are far from the only examples of originalist judges grappling with the Reconstruction Amendments on a variety of issues.

Originalist judges can and should do a much better job of including the original meaning of the Reconstruction amendments in their jurisprudence than many have done so far. But it is wrong to claim that they have simply ignored the issue, or that they somehow] believe that the Constitution remains largely unchanged since 1787.

I do not expect columnists and other non-experts to be familiar with all of these writings. Indeed, the literature has grown so large that even most constitutional law scholars (myself included!) can't keep track of all of it. But, while it would be unreasonable to expect lay pundits and commentators, to study this literature in detail, they should at least consult relevant specialists before making sweeping claims about originalism.

Ironically, critics who claim originalists have ignored the Recontruction amendments are at odds with academic critics who argue that originalists take an overly optimistic view of their meaning (as Stephen Griffin contends in an important recent article), or that they disagree among themselves about that meaning so much, that the disagreement proves that originalism is indeterminate. I criticized the latter argument here. Such critiques of originalism would make little sense if originalists really had largely ignored the Reconstruction amendments. The accusation of excessive optimism is especially inconsistent with claims that originalists seek to minimize or ignore the extent to which the Reconstruction amendments altered the preexisting legal order.

None of the above proves that originalists have found the "right" possible interpretation of the Reconstruction amendments, or that originalism is superior to alternatives such as living constitutionalism. There are plenty of legitimate criticisms of both originalist takes on the Reconstruction amendments, and originalism as a more general theory of constitutional interpretation.

I myself have reservations about many versions of originalism, and defend the theory only on contingent "instrumental" grounds. I remain open to the possibility that some other approach to constitutional interpretation (perhaps one not yet fully developed) might turn out to be superior. But the public debate over originalism and constitutional theory is not advanced by false claims that its exponents have ignored the significance of amendments on which they have actually written extensively.

 

 

 

NEXT: How Big Can the Ninth Circuit Get?

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  1. That Justice Thomas opinion is one of the most BALLER opinions of all time because he called the president whose administration he worked in a RACIST!! So Thomas was specifically going after racist governors like Reagan that peed their proverbial panties when scary Black dudes started exercising their RKBA during the Civil Rights movement. So when the Black Panther started open carrying Reagan quickly wiped his white ass with the 2A and banned open carry.

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  2. One of the complaints about this has to do with Shelby County, where the Court, it is alleged, ignored the power explicitly given to Congress in the 15th Amendment “to enforce this article by appropriate legislation.”

    1. Or from the competing perspective, refused to ignore the word, “appropriate” in that clause.

      1. And that seems to be Congress’s job to figure out what’s appropriate, not the Court’s.

        1. And Congress had that opportunity. They could easily pass new preclearance requirements. They chose not to.

          But using now 45 year old data to subject certain areas of the country to “special” discrimination is illogical, and makes no sense. Pass new laws, that look at new data on turnout rates and election tests. That would be far more logical.

          1. And that’s Congress’s job to determine whether that is appropriate, not the Court’s.

            1. Only to an extent. It has to have a rational basis. If Congress, for example, tried to say “California’s electoral college votes don’t count, because of past voter discrimination”, the court would shoot that down. Because it wouldn’t be entirely rational. Right?

              Or do you think Congress can determine on its own that California’s electoral college Votes shouldn’t count due to past discrimination?

              1. No, because there are other textual provisions dealing with electoral votes. This are no other provisions the Court was interpreting besides Section 2. It simply substituted it’s judgment: “things have changed in the South.” Congress thought differently and the Court simply disregarded that.

                1. Well, in this case, there’s the 10th amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

                  That means the states actually get to legislate if they want, in areas not delegated to the federal government.

                  1. What has that got to do with an amendment which delegated the necessary judgment explicitly to the Congress?

                    1. It has to do with the fact that conservatives only object to courts acting like legislatures when the courts do something with which they disagree.

                    2. It has to do with the fact that “appropriate” REALLY IS IN THE 14th AMENDMENT.

                      That you don’t want the actual language of the amendment enforced doesn’t change what it says: The legislation has to be “appropriate”.

                    3. You can’t justify Shelby County on the enforcement clause. Roberts’ theory was the pre clearance formula violated the states’ “equal dignity”. Which was silly.

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                  2. If they wanted the states to exclusively legislate in the area of ensuring voting rights, there would not be a Fifteenth Amendment. Indeed, the reason there is a Fifteenth Amendment is because the state’s weren’t trusted in this area. So reference to the Tenth Amendment makes no sense.

                    Let’s be real: you just support the Court’s blatant substitution of its own judgment for Congress’s because you are happy with an outcome where less people can vote, thereby protecting your political power. That’s it. Stop pretending otherwise.

                    1. Nobody’s vote has been “suppressed” in many decades. But if you want to go there, let’s. For over 100 years we have run the experiment, counter to the intent of the original Constitution, of allowing virtually every adult to vote with no tests of fiscal competence nor civic comprehension. Contrary to the notion that this would improve the quality of representation, it has been an unmitigated and demonstrable disaster. We are fast approaching $30 trillion in debt / 125% of GDP on a suicide course towards the biggest fiscal collapse in human history. Entitlements alone, which Presidents cannot even veto, now exceed for the first time ever over 100% of all conceivable Federal revenues- about $3.5 trillion per year now and growing faster than the economy possibly can. Every Entitlement was sponsored by Democrats, almost none had even a single Republican co-sponsor.

                      It’s time to return to “voter suppression.” Not by skin color nor sex, which have rightfully been abolished, but through tests of fiscal competence (perhaps “has not received any government assistance in the past 4 years) and comprehension of our Constitution and system of government (which ought to suppress around 95% of Democrats).

                    2. I think you’ve got a point about the need to disenfranchise anybody who is on the dole, but if we implemented that “Comprehension of the Constitution” test, it would probably end up being used to disenfranchise Republicans, instead, on the basis of their not accepting that abortion is a constitutional right, or other bogus rulings.

                      My own attitude is that we’ve probably gone past the point of no return in these terms, though.

                    3. John Galt, any woman who has ever produced an illegitimate child should also be disenfranchised, as well as anyone whose ancestors haven’t been in America for at least three generations.

                  3. It has to do with the fact that “appropriate” REALLY IS IN THE 14th AMENDMENT.

                    Brett, “appropriate,” in that context does not mean, “does not offend Brett’s sense of propriety”; it does mean a method tailored to get the job done. See John Marshall’s discussion of the, “Necessary and Proper,” clause.

                    1. Right. And basing preclearance on decades obsolete data “doesn’t get the job done”.

                2. 1. Again, the law needs a rational basis. Basing selective treatment for some areas of the country, as compared to others, based on 45 year old data is not rational.

                  2. The VRA doesn’t mention the electoral college.

                  3. The 14th Amendment allows Congress to pass appropriate legislation to enforce it. Doesn’t it?

                  1. If you really want to go down the road of a legislature using bad or old data or information as grounds for striking down legislation then you’re going to be striking down a lot of legislation.

                    1. Keep in mind this wasn’t just an old law on the books. This was new legislation, reauthorized and voted on, based on data from decades ago.

                      Do you think it would be rational, for example, to pass a law that subjected Japanese Americans for special “surveillance,” due to data from 1942?

                      Do you think it would be rational to selectively target sections of the country for economic stimulus based on data from 1910?

                    2. Ok…. But what are the downsides?

                    3. The downside is that law doesn’t actually accomplish what its stated purpose was, if the means aren’t rational.

                      Let’s use Bernard’s “safety law” example. Let’s say the Country has a vested interest in reducing workplace injuries. Great.

                      They make a law that the top 100 companies in workplace injuries are under “enhanced protections” for the next 5 years. Any changes they make to any of their policies must be cleared by the government first. Other companies are free to do what they want. Great, that’s rational too.

                      The problem comes in the extension. Imagine 45 years later, those same 100 companies are under “enhanced protections.” Their workplace injuries have dropped greatly. Several other hundred companies have had massive rises in workplace injuries.

                      But Congress passes a law saying “We’re keeping those hundred companies under enhanced protections because 45 years ago, they had the highest number of injuries. No other companies, no matter how many injuries they have now”

                      That’s not rational anymore. It lets the current offenders get off scott-free, while continuing to punish the original hundred companies on actions from half a decade ago, which have been corrected for more than 20 years.

                    4. A basic problem with ‘preclearance’ is that it was sold on the idea that the covered jurisdictions might otherwise spam the courts with too many constitutional violations to keep up with. Which wasn’t unreasonable in the case of proven repeat offenders.

                      But in practice is was used to block changes to laws that WEREN’T constitutional violations. That absolutely would have prevailed in court if challenged. This clearly went beyond what the 14th amendment authorized, but the covered jurisdictions really had been guilty, so they didn’t get much sympathy on that score.

                      But the covered jurisdictions haven’t been guilty for decades, and the detailed control in excess of what was necessary to enforce the 14th amendment just went on and on.

                    5. “A basic problem with ‘preclearance’ is that it was sold on the idea that the covered jurisdictions might otherwise spam the courts with too many constitutional violations to keep up with. Which wasn’t unreasonable in the case of proven repeat offenders.”

                      Basically, what Democrat Party states do with gun “regulations.”

                    6. Yes, I’ve frequently made that analogy. Perhaps at some point the worst offenders should be put into preclearance for other civil liberties.

                  2. Armchair, where do you get rational basis as a test for a Constitutional amendment? Congressional action here is not pursuant to the Administrative Procedures Act, it is pursuant to the Constitution. And the APA does not affect the Constitution.

                    1. This is the Civil Rights Act we’re considering, not a Congressional Amendment.

                    2. Armchair, even taking your reasoning one step down the line—it really is the amendment which puts the discretion in Congress instead of in the Court—are you suggesting the Civil Rights Act is subject to the APA? Do you think the APA governs everything the Congress does? Declarations of war? Rules in their own chambers? Impeachment? Do you think the APA is somehow akin to the Constitution itself, on a plane above other congressional legislation?

                    3. Sigh,

                      Stephen. The APA has nothing to do with this. This is not an administrative ruling, executive order, or anything of the kind. It’s a law.

                      Laws can be reviewed for their constitutionality under a standard of review called the rational basis test.

                3. It simply substituted it’s judgment: “things have changed in the South.”

                  And even worse, it ignored the possibility that the reason things changed was the VRA, and that eliminating the preclearance requirement would cause things to change back.

                  “Who needs all these safety rules? Injuries are way down since we put them in.”

                  The logic, and legal justification, of the decision are equally ridiculous.

                  1. It seems likely Congress will enact a new voting rights act next year; I am hearing it will be named for John Lewis. Republicans are going to hate it, particularly the sections that criminalize voter suppression.

                    By the time challenges reach the Supreme Court, though, the conservative justices may not be in any position to do much more than express sympathy for neutered Republican election lawyers in a series of strident dissents.

                    1. Just what the Democratic party needs to secure victory in 2024 as well: getting elected to the Presidency, House, and Senate, only to act like sore winners by expanding the Court, extending statehood, passing a new VRA named after someone most Americans don’t know about, and dedicating all this time, energy, and political capital to liberal ideas instead of the common man’s economic woes in the middle of a pandemic. A surefire way to get slaughtered in the 2022 midterms.

                    2. I’ve got to break it to you, Deontologist: Partisan entrenchment actually does work if you don’t limit yourself to half measures. So, yes, if the Democrats capture the Senate and White house in a couple of weeks, and go all out in entrenching themselves, they really WILL secure victory in the 2024 election.

                      And maybe secure themselves a civil war, but, yeah, they’d win that election, once they finished rigging the game.

                    3. Civil war? You have your ammo ready, all-talk pansy boy?

                      Just because a disaffected clinger finds the courage to pull the trigger on a mail-order bride doesn’t mean he still isn’t a feckless incel at heart and at core.

                    4. Deontologist, the Democrats can secure permanent electoral victory if they sweep. All they have to do is grant citizenship to 20 million new Latin American mestizos.

                    5. Brett is all about the rule of law, until someone passes laws he doesn’t like.

                      He’s also opposed to partisan entrenchment, unless it’s the Republicans doing the entrenching. During discussions of gerrymandering Brett explicitly defended gerrymandering for partisan advantage, but suddenly, if Democrats do anything to help themselves, such as stopping vote suppression, he’s ready for war.

                    6. instead of the common man’s economic woes in the middle of a pandemic.

                      It’s McConnell and the Senate Republicans who are ignoring “the common man’s economic woes,” not the Democrats.

                    7. “During discussions of gerrymandering Brett explicitly defended gerrymandering for partisan advantage,”

                      Can you provide a link? I’m having a bit of trouble figuring out which statement of mine you might be misconstruing.

                  2. Bernard,

                    If you really care about minority voter protections, shouldn’t you want to use up to date data to understand where preclearance is needed? As opposed to data almost 50 years old?

                    Don’t you want to focus on the states that currently have the largest gap in turnout rates between Caucasians and Minorities for selective focus? (The answer which states those are might surprise you).

                    1. What states do you have in mind?

                    2. Minnesota comes to mind.

        2. So, one if the items on that original preclearance list was related to voter turnout. Typically voter turnout lower than 50%. Or certain laws for election tests (Which don’t exist anymore).

          Only one state now has voter turnout less than 50%. Hawaii.

          Perhaps you would like to look at African American turnout instead. However, in many old preclearance states African American Turnout it at comparable (or higher) levels to the Caucasian population.

          Perhaps you’d like to look at other minority populations instead, and current actions to suppress vote gathering. Then California would likely be hit hard, with Latino voting turnout well below 50%, while the State AG is actively suppressing actions designed to make it easier for the people to legally vote and turn in their ballots, especially in areas of high latino populations (like churches).

        3. So, you’d transform that clause into “to enforce the article by any legislation that they feel like”?

          No, I don’t think so. That “appropriate” is a limitation on the power conferred, and it must be enforced by the judiciary.

          1. By blatantly substituting their judgment for Congress’s? Because that’s what happened. And I don’t think that’s what the Amendment contemplated.

            1. Do you think it’s rational to selectively use 45 year old data to restrict people and organization’s rights, as a justification for making laws, when there is more up to date data?

              Or is that irrational?

              1. My undertstanding of rational basis review is that the law must be rationally related to a legitimate government interest. It is not whether or not the court agrees with the rationality of how the law addresses that interest. Is that not true?

                1. The Court applied the rational basis with bite standard of review.

                  1. Under which clause of the Constitution? Equal Protection is the usual, but that wasn’t invoked.

                    And rational basis with bite still doesn’t apply to the law’s methods, once it’s clear they are equal to the law’s aims. That’s pretty hard to argue here.

                    This wasn’t rational basis at all.

                    1. The methods don’t equal the laws aims.

                      Using data from 45 years ago to attempt to reduce minority voter suppression today is not rational. It’s arbitrary.

                      It’s like justifying a major government buy, because the company was a world leader 45 years ago (but today is #100 in its field)

                2. There are two parts to rational basis.

                  1. The law must be a legitimate state interest
                  2. The means must be rationally connected to the ends.

                  In this case
                  1. The state has a legitimate interest in eliminating discrimination.
                  But.
                  2. Just using 45 year old data to attempt to eliminate it is not rational. This will miss many sources of discrimination (which popped up in the last 45 years), while not relieving the obstruction of rights for those area that are not discriminating anymore.

              2. Armchair, once again, in this instance the Constitution made the Congress the arbiter of what is rational, not the Court. The Court gets that power in instances of regulation pursuant to the Administrative Procedures Act. This was not such an instance. The Court was out of line.

                1. There’s a whole bunch of legal rulings on Same Sex Marriage that say otherwise, where SSM was overturned on rational basis rulings.

                  Unless you want to overturn all of those…

                2. Nonsense. Congress basically acknowledged that the old formula wasn’t appropriate, but admitted political considerations prevented a new one from being adopted.

      2. So you think the court should be second-guessing Congress’ decision as to what is “appropriate”?

        OK, if that’s what you think, but no more complaints about “activist judges” and so on from you.

        1. When Congress admits it is inappropriate, then yes.

      3. Or from the competing perspective, refused to ignore the word, “appropriate” in that clause.

        Brett, do you suppose the original meaning of “Proper,” in the, “Necessary and Proper,” clause, had anything to do with limitations based on propriety, on what was “appropriate”? It did not. Chief Justice Marshall explained it clearly. It was not meant to be a limitation, he said, but an expansion of Congressional power.

        To illustrate, I suggest the Constitutional, “Proper,” originally meant a means which would work, which would get the job done, as in, “A proper blacksmith shop.” Another way to see it is to say the 18th century, “Necessary and Proper,” was closely equivalent to today’s, “Necessary and Sufficient.” To put an doubts to rest, go back and read Marshall in context.

      4. All of these efforts to justify Shelby County on the ground that the decision used “appropriate legislation” as the basis of some never-before-seen rational basis test have a minor problem: nothing in the majority opinion makes any such claim. Rather, there’s a lot of handwaving about preclearance being contrary to some other, unidentified part of the Constitution.

    2. “ appropriate legislation.”

  3. Typo: it’s Jamelle, not Janelle.

    1. Why does this matter so much to you, you cisnormative clinger?

      /sarc

  4. The problem with our adversarial law system is that it breeds a society of sophists.

    Most people don’t argue in good faith and they can’t conceive of anyone else doing so.

  5. Jamelle (not Janelle) Bouie’s argument seems to be not so much that originalist scholars and judges don’t pay attention to the reconstruction amendments as that the ordinary discussion of the doctrine focuses on the original Constitution (and Bill of Rights), rather than later amendments. It also hits the point that discussion of “ratification” focuses more on the original Constitution. He does not seem to assert that originalists in general or Judge Barrett in particular do not agree that the Constitution, as amended, is the text to be interpreted, and in some cases construed. (I sure would like to see discussion of why the 16th Amendment was needed every time somebody starts bloviating about a tax on wealth.)

  6. Btw, with respect to the 2A why was it necessary to incorporate it?? So what in the 2A limits infringement of the RKBA to only actions by the federal government?? In fact the prefatory clause states: “A well regulated militia, being necessary to the security of a free state.” So the word “militia” refers to the unorganized militia which essentially means everyone, and then “free state” refers to America…so the prefatory clause means the 2A should never have been limited to the federal government and should have prevented state governments from infringing the 2A upon ratification.

    1. The reason it was necessary to incorporate it, is that it was an amendment to the federal constitution, and unless a clause in the Constitution makes reference to the states, it’s not applicable to them.

      1. But then the 2A makes no sense—so did it only apply to individuals in DC and federal territories??

        1. No, it only applied to federal actions, wherever undertaken.

      2. Granted I am of the minority opinion, but the states, the federal government and the People were all parties to the constitution. While most parts of the constitution dealt with how the ‘federal government would operate, the bill of rights should have been treated as incorporated against the states at ratification, since the states were a party to the constitution. Baltimore v Baron was wrongly decided on that issue. (though I can understand the alternative view)

        gorsuch had the correct reasoning in his dissent in Gamble. Double jeopardy is a direct prohibition against the Federal government.

    2. Btw, with respect to the 2A why was it necessary to incorporate it??

      Because Barron v. Baltimore held that it didn’t apply to the states.

      1. Nope, if something is incorrectly decided you simply overrule it…so if precedent is wrong then stare decisis does not apply. So McDonald was not necessary because the 2A grants an individual right that was never limited only to citizens in DC and federal territories. So it’s strange that the big brains in black robes felt they had to incorporate the 2A…it hurts my widdle pea bwain. 😉

    3. Each of the (then 13, now 50) states were and are supposed to be free dates, also.

  7. “Still, originalist judges are far from simply ignoring those Amendments. Clarence Thomas, for example, has written a well-known opinion arguing that the original meaning of the Fourteenth Amendment strengthens the case for “incorporating” the Second Amendment right to bear arms against the states.”

    How many justices, originalist or otherwise, signed on to Justice Thomas’ opinion?

    1. If Justice Thomas’ opinion was so good, how come none of the *white* judges signed on to it, is I guess what you’re asking.

      1. If you figure originalist and White are interchangeable in this context, you might be beginning to develop a coherent point.

  8. When SCOTUS rules that Trump can exclude undocumented immigrants from the census we will see just how quickly these “originalists” abandon their principles for politics.

    1. This.

      I am hoping they surprise us.

      1. They’d only surprise me if they DID rule in Trump’s favor in this instance. You might be able to get there by legislative finding that people present in the country illegally are not “subject to the jurisdiction thereof”, but by executive fiat? I don’t think so.

        1. “subject to the jurisdiction thereof” is about birthright citizenship, and has nothing to do with the appointment of representation.

          1. Well, you do have a point there. The finding would have to be more along the lines of, “Illegal aliens are analogous to “indians not taxed” in that they are citizens of a different sovereign only incidentally present during the census, and so should not be counted for apportionment.” Or maybe a law stating that people would be counted for apportionment according to their legal residence, and illegal aliens have no legal residence in the US.

            My point is, without Congress on his side, this is NOT a fight Trump would win in the courts.

            1. Oh boy. That “Indians not taxed” crap again, from someone who likes to cite plain meaning, etc.

    2. If SCOTUS wants to assure its expansion it will rule for Trump. It’s already taken a step that way with the recent Census decision.

      Right now the court is establishing a record of doing whatever it can to entrench Republican rule. The only exception I can think of is the first Census case, where Roberts couldn’t quite swallow the lies and BS coming from Ross&Co.

      If they keep it up expansion will be necessary to preserve American democracy.

      1. By the time Biden gets elected, liberals will barely even remember or understand why they wanted to expand the Court in the first place. They’ll have found some other “injustice” to latch onto. Plus, Census issues are too wonky for even the above average liberal. Only thing they can understand are gay/tranny rights and abortion.

        There’s a reason the Court has 2 accused sexual predators on it: liberals simply don’t have the mental capacity to remember that they need to pretend to care about women.

        1. “There’s a reason the Court has 2 accused sexual predators on it: liberals simply don’t have the mental capacity to remember that they need to pretend to care about women.”

          Two accused –
          the first is one that the accuser continued to work for the accused and even switched agencies to continue to work for him. Not the normal behavior of someone who would have been sexually harassed.

          the second One of which was a total fabrication by someone suffering with issues.

          but I presume you already knew that

      2. If the left wants to assure flying 5.56 rounds, it’ll be keep pushing conservatives

        1. Aktenberg78, in the absurd event anything you say comes to pass, have you reflected on the balance of forces? You will be buying those 5.56 rounds until it bankrupts you (I urge you to rush out and stock up now). The left will be buying its rounds with your tax dollars.

          I note in passing that Republican Governor Charlie Baker of Massachusetts seems to have the National Guard out practicing deployments—laudably proactive steps to avoid election disruptions, I suppose.

            1. Aktenberg78 — Wow! That link is what passes for strategic judgment among right-wing insurrectionists? Really? There must be something better. Why don’t you go out and find it? I would give it a read. But not too much. I’m sure it’s a big genre. Just show me the best.

              To encourage you, let me over-dignify your link, and note a thing or two that went foamingly un-imagined.

              1. There would not be a red-state insurrection without some kind of notable initiating violence, from rebellious “normal Americans,” as your link calls them. Nobody could organize that without giving plenty of advance warning to would-be defenders—who already, right now, have your fantasists infiltrated and under surveillance. Defenders would be waiting for you—the surprise would be all yours. Do you suppose the military outcome of any such initial attack would encourage others to step up? I doubt it. I think your uprising would last about as long as Shay’s Rebellion.

              2. The vulnerabilities red states imagine they can inflict on blue states—food, transport, etc.—are actually pointed the other way. The blue states are on seacoasts. They don’t need a bit of sustenance from the interior, not any. Blue states already buy all that stuff from you, with money they have. After you cut them off, everything blue states can’t provide for themselves, they can buy with that same money from others abroad—instead of from you—and ship by water. As a bonus, they could get most stuff cheaper abroad, and without paying you guys your accustomed subsidies. At the same time, blue states could also use naval force to cut interior red states off from foreign markets. So rebellious red state producers get no markets in blue states, no markets abroad, and grow way too much produce for their domestic markets—how long does that last?

              3. Blue states could count on help from abroad. Red states would get nothing but scorn, and trade sanctions. All that invective about foreigners? If you guys are thinking about rebellion, you ought to rethink that invective. Your best hope would probably be Russia, which could send you as many hackers as you wanted. Anything more substantive, from anywhere, would get intercepted and confiscated.

              4. Brain drain would just about kill whatever was left of your economy. Your smartest kids already move to the coasts. They would do that faster, and in larger numbers, and paint themselves blue on the way. A new consolidated Canada/Blue nation (see 5, below) would welcome them with open arms. Your older public charges? Not so much.

              5. Your dream outcome, that you could split the nation and go your own way? That would turn out to be your worst nightmare. Blue states could probably work something out with Canada, and end up geographically contiguous, bigger than before, and richer in natural resources. It would be the new greatest nation on earth, better than this one, and more civilized. After they experienced what a relief it was not to have to support fiscally deadbeat red states, the blue states would never look back.

              When they saw that shaping up, a surprising number of red states would probably lunge to join the departing blues—if the others would let them, and if Canada/Blue would have them (it would be in position to pick and choose, and take only the best). You wouldn’t even get to keep free socialized healthcare in your emergency rooms. People in thinly settled hinterlands could sit and watch the infrastructure crumble (but not online), go back to kerosene and wood stoves, or flee to Houston. Maybe that would work out fine for them, and for Houston. So happy!

              1. I guess you think all those Burn,Loot,Murder marxists brownshirts are using the “mostly peaceful” riots as a prelude to their “taking control”. With the socialist mayors and city councils ordering the police to “stand down and the resulting burning and looting, pretty soon people are going to start protecting themselves from the violence with or without the states “permission”. Then we’ll see how fast the burn,loot,murder thugs can run. If “the authorities” can’t control a few hundred thugs, how do you think they can control 100 million gun owners?

          1. Seattle depends on the Cedar River watershed for all its water. Where is the Cedar River watershed? Pretty far from Seattle, and a long run of pipes brings that water to the city. Cut those pipes, and Seattle is in really, really bad shape.

            The red areas Seattleites despise are often on well water. No municipal system to take down.

  9. The column’s claim seems to be that in referring to the original meaning of the Constitution Judge Barrett is referring to the original meaning of the unamended 1787 Constitution. But the column cites no evidence at all for this claim – and so far as I am aware, there is none. The column notes that Judge Barrett referred to the Constitution’s meaning being fixed at the time it was “ratified.” But of course all the amendments to the Constitution, including the Reconstruction amendments, were ratified too. The column contains no indication that Judge Barrett has ignored either the subsequently ratified Bill of Rights or the Reconstruction Amendments in her decisions – not surprisingly, since that would be as lawless as ignoring the provisions of the 1787 Constitution.

    Of course when any law, including the Constitution, is amended, there are important questions about how the new law affects the old. But, contrary to the column’s claims, the Reconstruction Amendments did not replace the entire Constitution that pre-existed them – they amended it, but left the unamended portions in place, just as happened when the Bill of Rights was ratified. Thus the U.S. Constitution that governs us today is an amalgam of all these provisions, and in an appropriate case implicating them, they all have to be consulted. I know of no originalist today, including Judge Barrett, who thinks otherwise.

    I think the column is making a common mistake, which is to impute the columnist’s own misconceptions about originalism to Judge Barrett and other originalists, the better to criticize her and the theory. But it does so, as press reports so frequently note these days, “without evidence.”

    1. pro living constitutionalists AKA anti originalists & anti textualists throw out the false narrative of that originalists only believe the original constitution as written in 1787.

      The narrative would have validity if it was true.

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  11. It’s pretty funny watching “originalists” looking at the actual attitudes (and meanings of words) of the Congressmen (remember, there were no women, and of course they were all White) in 1867 – 1870 toward interracial relationships, gay marriage, disabled people . . . and trying to find that they would be o.k. with all of that.

  12. Some uncomfortable original meaning:

    “Nothing is more vital to the people’s liberty and freedom than that immortal amendment that reads ‘powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ I shall declare again the recent (14th and 15th) amendments made no change in this respect.” –14A section 1 Author

    1. I don’t see how that’s uncomfortable. Obviously amendments would not overturn the 10th amendment. But they CAN alter what is delegated or prohibited.

      1. Uncomfortable in the sense he is saying the 10A is the guardian of liberty and freedom other than the 14A.

  13. Any originalist would agree that Amendments are the proper way to change the Constitution. Not twisted rulings based on feelings.

    1. tlapp, I don’t think if there are any originalists who privilege historical intentions over text, that what you say would apply to them. Among Washington, Adams, Jefferson, Hamilton, Madison, and James Wilson, at least, none supposed the Constitution—which they viewed as a decree from the Sovereign People—could in any way dictate what means the People could use to change it. The amendment process constrains what the government can do. It does not constrain what the People can do. The People can change the Constitution by any means which works.

  14. Reformists of Reconstruction Theory can talk all they want…I would sure like if modern “intellectuals” of the Constitution would decipher for once the “Where is the heck my check guys…I was suppose to get a check” Clause. I am sure that this would appease populist anger against the modern interpreters pf the pillar documents of our Country, residing in the DC area….

  15. Originalists ignore whatever they need to in order to come to the conclusion they already arrived at.

    They’re like Evangelicals that way, really: their holy texts always support whatever position they already had.

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