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‘Originalism is intellectually indefensible,’ says noted historian about right-leaning Supreme Court

Eric Foner, a leading authority on the post-Civil War era, wants to see liberal justices develop a vision of the Constitution that doesn’t build on conservative legal ideology

Eric Foner, DeWitt Clinton Professor Emeritus of History at Columbia University on March 8, 2016, in New York City. His book, "The Fiery Trial: Abraham Lincoln and American Slavery" won the Pulitzer, Bancroft, and Lincoln prizes for 2011. Photo illustration by Alex LaSalvia.Jemal Countess/Getty Images

Justice Ketanji Brown Jackson made waves recently when she used her perch to offer a vision of racial equality that stands at odds with how the U.S. Supreme Court often treats matters of race. The justice’s lengthy remarks, which came during oral arguments in Merrill v. Milligan, an important redistricting case that could weaken the Voting Rights Act of 1965, felt like a mini-history lesson on Reconstruction and the constitutional amendments ratified during that period.

Justice Ketanji Brown Jackson. Photo Illustration by Alex LaSalvia.Supreme Court of the United States/Getty Images

With the fate of affirmative action hanging in the balance at the Supreme Court, I wanted to know what Eric Foner, one of the nation’s foremost authorities on Reconstruction, thought about Jackson’s take on this history, which contemplated policies that uplifted former enslaved Americans: “I am of two minds about Justice Jackson’s remarks,” he told The Emancipator in an email. “I am not a believer in originalism and do not want to operate on terrain constructed by the conservative justices. Originalism is intellectually indefensible. But if you are going to talk about history, you had better get it right, and she does a much better job of that than those who believe the architects of Reconstruction were colorblind.”

There was a lot to unpack there, so the two of us spoke on the phone to talk some more about Jackson, the sham of originalism, the current Supreme Court’s selective reading of history, and what Foner might tell the liberal justices if he had their ear.

Why is originalism problematic from a historical perspective?

Foner: There is no important document in the world that has only one original meaning or one original intention. Let us take the 14th Amendment: It’s ambiguous. It is full of generalities — general principles, which is fine. They have to be worked out, whether it’s due process of law, or privileges and immunities. Those phrases meant a lot of different things to a lot of different people. And so the search for the original meaning — there is no such thing as the one original meaning or intention. These things were fought over. They were contested. And one of the points I make when I write about this is that the whole search for this generally looks purely at the debates in Congress and, therefore, completely eliminates any Black voice.

What did African Americans, who are the subject of the 14th Amendment in many ways, what did they think these ideas, these phrases, meant? And what did they think of the purpose of the 14th Amendment? Without Black legislators in the South, under radical reconstruction, voting to ratify the 14th Amendment, there would be no 14th Amendment. And they must have had their own ideas about what the meaning [was], what they were doing, what they were trying to accomplish. But you never get that in these [current] discussions. And I just think it’s a misconceived effort.

There’s nothing wrong with figuring out what people were trying to do. That’s part of the historical effort to understand the time period. But to think that there’s one original meaning is just foolish, in my opinion.

So you wouldn’t even concede the point that originalism is a tool rather than the tool to interpret the Constitution.

Justice Clarence Thomas. Photo Illustration by Alex LaSalvia.Tasos Katopodis/Getty Images

Foner: (Laughs.) You know, I’m not a lawyer. I’m not a law professor. I’m not a constitutional scholar, although I play one on TV sometimes. But, you know, people can use all sorts of tools. But I don’t think we have, even if there were a single original intent, I don’t think we should accept the premise that that is what should govern an essential part of our political and legal system right now and how it has worked out. I’m a believer in what they call the living Constitution; you apply these principles at the present, not by going back to figuring out what in 1866 Sen. Jacob Howard or Charles Sumner, or for that matter, Jefferson Davis thought about what the 14th Amendment meant.

And the idea that — here I’m just rambling on — in the Dobbs decision, that somehow we are excluded from policies that didn’t exist a century and a half ago, is completely antidemocratic. But that’s what the Supreme Court, say, on gun control, Justice [Clarence] Thomas’ opinion [in Bruen, which expanded the Second Amendment right to bear arms in public spaces, says], “No, well, they didn’t pass the kind of laws that they pass now back then. So we can’t do it now.” Ridiculous, in my opinion.

I’m glad you brought up Dobbs. If you read Justice [Samuel] Alito’s opinion, there’s not even a pretense it’s a so-called originalist opinion. He goes through some doctrinal legal analysis, but there was nowhere even an attempt to define what liberty in the 14th Amendment means. And for that reason, then you wonder: What are we even doing here?

Foner: It’s a kind of reverse originalism, that decision. It’s just saying, “Well, the absence of pro-choice legislation 200 years ago, it should determine what we do now.” And so yeah, I think it’s ridiculous that it’s a straitjacket on public policy. But, you know, this seems to be where we’re heading. What about the right to privacy? Does that exist? It’s not mentioned, as we all know, by a word in the Constitution. But it’s become part, for the last 50 years, of our concept of law and politics.

The Dobbs opinion makes clear that conservative justices pick and choose what they want the Constitution to mean based on the policy outcomes that they prefer. What do you make of this current of progressive lawyers and academics who perhaps want to play on that terrain with the conservative justices, and try to divine a progressive understanding of the Constitution on originalist grounds?

Foner: Yeah, in my humble opinion. Not because it isn’t logical in many ways. I just got in the mail that book … What is it called? I have it right here on my shelf. Yeah, “The Anti-Oligarchy Constitution,” by William Forbath and Joseph Fishkin, and that’s exactly what you’re talking about. Is that good history? I’m not sure — I respect them very much. But I’m not a constitutional historian. My point is, there is a lot of leeway within the 14th Amendment and the 15th Amendment and the 13th Amendment, actually, for public policies far more far-reaching than this court would ever agree to. And of course, every one of those three amendments ends with a phrase — with a section saying Congress shall have the power to enforce this amendment. Not the Supreme Court, not the secretary of state or somebody — Congress. But over time, the Supreme Court has asserted its right to overrule what Congress decides, even though the Constitution textually, specifically gives it to Congress.

It’s pretty clear why: They didn’t trust the Supreme Court. How could you trust a body which had produced the Dred Scott decision not that long before. They didn’t want the Supreme Court meddling around with what Congress decided was necessary in order to uplift former slaves into equality. But that’s what’s happened.

Since this reading, or this interpretive method, is “a straitjacket,” as you put it, how, then, should a liberal vision of the Constitution be? How should they interpret these amendments?

Chief Justice Earl Warren is helped on with his robe by R.H. Marshall, attendant in charge of robing at the U.S. Supreme Court building in Washington, D.C. Photo Illustration by Alex LaSalvia.Bettmann Archive/Getty Images

Foner: The Warren Court did a pretty good job of that. They took these principles — not the specifics, the principles — and said, How do we apply that principle at the moment, at the current time? How these originalists can accept Brown v. Board of Education has always been very mysterious for me. You know, it’s not an originalist decision. In fact, the Supreme Court explicitly said — [Chief Justice Earl] Warren explicitly said we don’t know what the people intended in 1866. We’re interested in what we should do now. That’s how I would interpret it.

And yet, let’s try to be strategic here: If you had the ear of Justice Jackson and the two other liberal justices, what would you tell them, besides don’t play with the master’s tools?

Foner: I’m a historian. I’m certainly not going to tell them, “Don’t look at history. Don’t think about history.” As [Jackson] points out, the history of the Reconstruction Era is something everybody should know about. And if you’re interpreting the 14th Amendment, you really need to know what was going on in the country in the aftermath of the Civil War and the end of slavery. But I would say this: Don’t accept the premise that that is the grounds on which we can determine whether a piece of legislation is legitimate or not.

This came up at the argument in Merrill v. Milligan, and it’ll come up again when the court considers affirmative action policies. Why is it that, at least among the conservative justices and lawyers, this idea of colorblindness in the 14th Amendment holds so much appeal?

Foner: It holds appeal because it’s a way of sticking it to the liberals. You know, we’re the ones who — after all, it’s [Justice John Marshall] Harlan, who used that phrase in a dissent. One thing that’s not mentioned is the Supreme Court has never decided that the Constitution is colorblind. That was in a dissent from Plessy [v. Ferguson, which rendered separate-but-equal accommodations constitutional]. But there’s never been five people who have said, “No, the Constitution is completely colorblind.” There may be now. But it’s their way of blocking or preventing any kind of affirmative action, so to speak, to uplift — they’re not interested in trying to uplift the status of African Americans in this country. And this gives them a weapon. Because it’s very hard to argue against it — Oh, no, yes, the Constitution actually should be color-biased, it should be in favor of one group by color and not another. It’s very hard to argue against the abstraction of colorblindness.

There were plenty of people in Reconstruction, who, yes, thought that the law and the Constitution should be colorblind. On the other hand, as [Jackson] points out, there were plenty of people who thought specific laws trying to assist the former slaves were totally legitimate under the 13th, 14th, and 15th Amendments. Colorblindness is not the only original meaning of the 14th Amendment. It was the original meaning in the eyes of some people, but not a lot of others.

One phrase that Jackson used in her colloquy during the Milligan argument was that the Civil Rights Act of 1866 was meant so that African Americans would have the same rights as those, quote, “enjoyed by White citizens.” And that itself is almost a rejection of colorblindness because it uses race to uplift the race that was historically left out.

Foner: That’s a very good point. I mean, that’s an amazing thing in that law — it’s an amazing law to begin with. But yes, to say that all citizens must enjoy the same rights as White persons do was a complete repudiation of the history of the United States up to that point. Up to that point, White people enjoyed far more rights than any other group of people had. For the law now to say, “No, no, you can’t do that,” Whiteness now becomes not a form of exclusion … but now it becomes a standard that must apply to everybody. You want to know what basic rights in terms of … going to court, or testifying, or whatever, that non-Whites should enjoy. Look at what White people have. And then that’s the same thing that non-Whites ought to have. That’s certainly color-conscious. But you know, most people don’t even know — including judges, I have discovered, or law professors, when I lecture at law schools — a lot of people don’t even know what’s in the Civil Rights Act of 1866. So I’m glad she reminded people of that. I think that’s a very good point.

Cristian Farias is a legal journalist who writes about law and the courts. He edits Inquest, a digital journal focused on ending the harms of mass incarceration. This interview has been edited and condensed for clarity. A longer version appears at ballsandstrikes.org, a site that publishes progressive analysis and commentary about the Supreme Court.