When Does Originalism Start?

The 15th Amendment officially enfranchised Black Americans. Hence, I presume that Blacks did not get the chance to vote for the ratification of it, or the other Reconstruction Amendments (obviously, they didn't participate in the drafting). It was only going forward that Blacks actually were officially included in the constitutional process. And, if practically speaking Blacks were only let in on truly equal terms after 1965, then only the 25th, 26th, and 27th amendments can truly be said to have been drafted and ratified with the true assent of the American population writ large.

What prompts this observation? John McGinnis and Michael Rappaport have a new paper on SSRN entitled The Desirable Constitution and the Case for Originalism. Essentially, the thesis is that originalism is a superior form of constitutional adjudication "because it promotes constitutional interpretations that are likely to have better consequences today than those of nonoriginalist theories." The reason is that constitutional texts are approved by super-majorities, which helps protect minority interests and creates the type of consensus necessary for entrenched laws. Since the only time constitutional meaning is affirmed through super-majoritarian means is during the ratification process, that is the best lens for ascertaining the optimal constitutional meaning. Originalism is thus justified because and only because it represents the contours of a broad, super-majoritarian consensus.

I skimmed the article, but the part I was really interested in was where McGinnis and Rappaport deal with that ever-present anti-originalist objection: that Blacks were simply not included in this decision making process for much of America's history (the discussion is on pages 39-43). This raises a larger question of when originalism starts. If originalism is justified by the existence of broad consensus among constitutional ratifiers, originalism only makes sense as a interpretative project where such consensus was present. If a given group is excluded, it's impossible to claim broad consensus, and the whole project is suspect, at least until the exclusion is rectified. And even then, the project only works going forward. It can't claim retroactive legitimacy from the people hitherto excluded.

M&R concede that Black exclusion represented a severe constitutional failing. But, they argue, this failing was mostly corrected via the passage of the Reconstruction amendments, which, facially at least, eliminated the problem. M&R also concede that, for at least a century afterwards, Blacks remained excluded in spite of the existence of these protections. But they say that this was due to a failure of originalism -- had the amendments been construed as they were originally meant, then Blacks would have been able to participate.

The problem is that this response doesn't work within M&R's own paradigm. For starters, it is unclear why creating nominal Black inclusion in the 19th century accords retroactive legitimacy to amendments passed during the period of Black exclusion in the 18th. Perhaps, amendments 16-28 are now in the clear (though not entirely, as I'll get into below), but amendment 1-12 certainly still retain the taint of original sin, if you will. Amendments passed in the future do not and cannot alter the conditions under which laws were enacted in the past. Hence, M&R can't really grant super-majoritarian legitimacy to original meanings cast prior to the period of Black inclusion.

Second, M&R's argument is premised on the existence of actual, not theoretical, inclusion and participation. Even if a group, such as Blacks, is officially free to participate in the political marketplace, so long as there are practical bars, the over-arching consensus M&R strive for remains absent. Hence, the effective absence of Black political participation in the century after the reconstruction amendments also casts doubt on the existence of consensus, and by extension, the legitimacy of post-Reconstruction amendments. M&R do say that they view this absence as a failure of non-originalism, not originalism, but that's besides the point. Regardless of why participation wasn't present, so long as it was absent we cannot assume broad social consensus. This, as my opening paragraph indicates, pushes the "start" of originalism out past 1965, with only the 25th amendment on up qualifying.

But the final problem M&R run into is that I believe, under their framework, the Reconstruction amendments are tainted too by the specter of exclusion. Remember, M&R give legitimacy to constitutional texts not because of abstract moral theorizing that tells us that clauses like "equal protection" or "free speech" are cool. They gain legitimacy because they're drafted under conditions of broad participation and consensus. But Blacks still couldn't participate in the drafting of the Reconstruction amendments, and hence those amendments also don't actually represent super-majoritarian consensus either.

This is easy to look past, because it seems apparent that had Blacks been included, they obviously would have voted in favor of these amendments. But this isn't quite true -- as M&R concede, it's entirely possible that they would have demanded additional clauses and protections, for example, ascertaining social rights (they also say they might have tried to protect affirmative action. I think that the case for permitting voluntary affirmative action is far stronger under putatively originalist frameworks than the argument against it -- in fact, I've seen no evidence whatsoever making the case against it beyond mere assertion. It is claims such as this which make me skeptical of originalism's supposed "neutrality" writ large). More importantly and fundamentally, we have no idea what the drafting, debate, text, or ratification would look like under those conditions. Trying to salvage the event through historical counter-factuals is vain endeavor -- but that runs true in both directions. It's equally speculative to assume that the constitution would look roughly the same, as it would be guess at what or how much might have changed. Hence, what would be truly accurate to argue is that originalism is irredeemably corrupted when texts are drafted outside of situations consisting of full and equal participation, and we have to look to other justifications for our preferred interpretative schema in such cases.

At this point, M&R fall-back considerably from their original position. They claim that, even granting the existence of continued defects in the constitution, the costs of fixing them by judicial fiat (or junking the constitution entirely) are outweighed by the costs, particularly that of legal instability and constitutional dissension. This is less of a response than a capitulation -- it admits that their metric may end up reifying political decisions cast under Black exclusion, but claims there is no away around that without trashing the rest of their model. At which point, I don't think they can be surprised if Black legal theorists and their allies advocate doing just that. Stability, after all, is not a boon when we're stabilizing an injustice. Uncertainty about whether you have equal rights is still better than certainty you don't have them. And none of these issues are ones that directly relate to M&R's thematic argument for why originalism is justified: the existence of a super-majoritarian consensus, because we're already beyond the point at which such consensus could be reached. Once this structural argument for legitimacy is abandoned, and we move to more contested issues of weighing (such as the need for legal stability), then the apparatus becomes vulnerable to attack from other competing values, and it loses whatever claim it had to immunity from non-originalist critique.

So, to conclude: the exclusion of Blacks from the political community means that the original consensus surrounding constitutional amendments passed in this period is nullified. Consensus can't be extended retroactively, so the passage of the Reconstruction amendments doesn't impact the original infirmity of the bill of rights and original constitution. And consensus requires actual, not theoretical, ability to participate, so neither can we claim that amendments passed in periods of de facto Black exclusion have true originalist legitimacy. Consequently, M&R's contemporary originalism can only start with those amendments passed under conditions of full and equal participation, which gives us an originalism of amendments 25-27, but nothing else. If originalism is to survive in the future, it has to kill off its desire to rescue the past. There is no way to salvage original meanings of constitutional clauses drafted under conditions of mass exclusion. Originalism can only work in situations where the entire community is participating. Where this did not occur, we must find other paths to constitutional interpretation.