No, ACB’s Originalism Does Not Ignore the Constitution


Tuesday, October 27, 2020

On Friday, The New York Times’s Jamelle Bouie published an article criticizing Judge Amy Coney Barrett’s adherence to the judicial philosophy of originalism. Central to his claim are the ideas that Reconstruction Amendments represent a “Second Founding” and that originalists supposedly fail to take historical context into account when analyzing the “Reconstruction Constitution.”

Bouie believes that “[t]he Reconstruction Constitution is a fundamentally different document than the Constitution of 1787.” He further claims that, “[a]s a matter of history, the Constitution is neither fixed in meaning nor in structure.” 

This is utter nonsense when employed as a criticism of originalist jurisprudence. While the Constitution is not a strict constructionist document—the Framers recognized the need for broad interpretation after witnessing the failures of the Articles of Confederation—it should not be interpreted loosely or by its spirit (as many liberals would contend). 

The federalist writer Publius, anti-federalist writer Brutus, and great Chief Justice John Marshall all agreed that the Constitution did not change with time and should not be interpreted according to its spirit. As G. Edward White writes in The American Judicial Tradition, “The notion that different generations of Americans might attach different meanings to constitutional language was alien to Marshall.” 

Judge Barrett also agrees with this sentiment, explaining during her hearing when she said that “[she] interpret[s] the Constitution as a law. [She] understand[s] it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time and it is not up to [her] to update it or infuse [her] policy views into it.”

To this point, Bouie makes two claims against Barrett’s position. First, he believes that originalists fail in “bringing the original meaning and intent of those [Reconstruction] amendments to bear on American life.” Second, he believes that the Reconstruction Amendments again represent a new Constitution or are somehow inconsistent with the Founders’ original framework, writing that, “To take the Second Founding seriously is to reject a vision that binds us to the Constitution as it was in 1787.”

In defense of his first point, he cites Justice Joseph Bradley’s dissent in the 1872 case of Blyew v. United States, the intent of “radical republican” framers like John Bingham, and a vague and broad interpretation of the Fourteenth Amendment not dissimilar to Justice Bradley’s natural rights view in his Slaughterhouse Cases dissent.

While his points have some legitimacy—Bingham’s interpretation of the privileges and immunities clause was vague and had minority support in the Supreme Court—Bouie fails to take into account the complete historical context surrounding the ratification of the Reconstruction Amendments. 

From the northern perspective, the purpose of the Civil War and Reconstruction Amendments was to end slavery and restore the Union. However, there was little agreement beyond that as the House, the Senate, Radical Republicans, Moderate Republicans, Democrats, and states that ratified the amendments all disagreed on specific interpretations. 

This is why we see Justice Samuel Miller view the famous Slaughterhouse Cases through a lens of “prudential originalism” in narrowing the potential scope of the privileges and immunities clause of the Fourteenth Amendment. Justice Miller feared the broad and vague reading of the clause that Justices Joseph Bradley and Stephen Field supported would result in a radical transformation of our federal system and stray from the agreed-upon purposes of ending slavery and protecting the rights of the freedmen.

In regards to his second point framing the Reconstruction Amendments as a new Constitution replacing the old “white republic,” Bouie ultimately fails to recognize the full historical context of the intricacies of our founding philosophy. In reality, the Reconstruction Amendments are a continuation of our Founders’ original intent in forming a more perfect union designed to protect the inalienable rights of life, liberty, and the pursuit of happiness. 

The Founders never intended for the institution of slavery to be a staple of American government—slavery is never mentioned in the Constitution—but rather viewed it as a temporary scaffolding on the temple of liberty as there would have been no union without it.

As Abraham Lincoln proclaimed in his 1854 Speech on Kansas-Nebraska Act regarding the institution of slavery, “Less than this our fathers COULD not do; and MORE they WOULD not do. Necessity drove them so far, and farther, they would not go.” [Emphasis added.]

The Reconstruction Amendments are not some deviation from the intended path of the Framers but rather are a realization of the promises laid out by Jefferson in the Declaration of Independence. While it is fair to say that America still has work to do in living up to its ideals, the idea that the Reconstruction Amendments are inconsistent with our nation’s founding and are therefore misinterpreted by originalists is ultimately utter malarkey.


Jonathan Voos is a baseball player and Political Science/Economics double major at Austin College, a private liberal arts institution in Sherman, Texas. He currently serves as Treasurer of the Austin College Pre-Law Society and is an active member of his church and his community.

The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.

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About Jonathan Voos

Jonathan Voos is a baseball player and Political Science/Economics double major at Austin College, a private liberal arts institution in Sherman, Texas. He currently serves as Treasurer of the Austin College Pre-Law Society and is an active member of his church and his community.

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