Two reporters for USA Today claimed to have pored over 15 hours of speeches by Supreme Court nominee Amy Coney Barrett. What did they learn about her? I can tell you what I learned from their exhausting (as opposed to exhaustive) piece. Absolutely nothing--save for one thing: she is of the “originalist” school of Constitutional theory, just like her mentor, Antonin Scalia, under who she served as a law clerk. To me the “originalist” theory is for the lazy scholar, although it is admittedly one step above Clarence Thomas’ “natural law” theory, which of course explains his recent fulminations against the Supreme Court’s 2015 decision on same-sex marriage; Thomas and Samuel Alito (and likely Barrett as well) still seem not to understand that .the separation of church and state means exactly that--a person’s religious beliefs, while they can inform their moral beliefs and private actions, cannot be used to deny others equal protection under the law.
American history is littered with examples of how difficult is to square “originalist” thinking with the reality on the street, which is why we needed a constitutional amendment process. Take for instance the most infamous example of how out-of-step the “founding fathers” were in today’s world: In 1787, the members of the Constitutional Convention faced a quandary; for the purposes of the census and taxation, should slaves be counted as persons, or counted at all? Well, of course slaves were human beings like the framers, right? Not exactly; to the vast majority, they were not even on the same planet. Southern slave states wanted it both ways--they wanted their slaves counted as “persons” in matters of apportionment for representation, but deemed as “property” in matters of taxation. But in northern states, it was argued that slaves should be counted as persons for taxation purposes, but not for representation. Alexander Hamilton, for one, noted the incongruity of the competing ideas;
Much has been said of the impropriety of representing men who have no will of their own.... They are men, though degraded to the condition of slavery. They are persons known to the municipal laws of the states which they inhabit, as well as to the laws of nature. But representation and taxation go together.... Would it be just to impose a singular burden, without conferring some adequate advantage?
The “compromise” that found its way into the final draft of the Constitution was as follows:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
Then the question was who had the “right” to claim to be an American citizen and to be protected by U.S. laws, as the framers “intended.” Here the “originalist” theory comes face-to-face with its moral and ethical hypocrisies. In 1857, the Dred Scott vs Sandford case came before the Supreme Court; Scott, who was a slave in Missouri, had been taken by his owner to Illinois and Wisconsin for a time, where slavery was illegal. He claimed therefor, that he became free once he began residing in free territory. After Scott’s original owner died, “ownership passed to the wife, Irene Emerson, who then loaned out Scott and his family for profit. Scott sued for freedom in 1850 against Emerson in a Missouri court, where in a retrial Scott and his family won their case. But Emerson, angered that she might lose her slaves and the money paid for the Scotts’ services held in escrow pending the resolution of the case, refused to yield. Emerson appealed the case to the Missouri Supreme Court, and then moved to Massachusetts; instead of freeing Scott and his family, she passed “ownership” on to her brother. The Missouri high court reversed the trial court verdict, declaring Scott still a slave in 1852.
When the case finally came before the U.S. Supreme Court, there were those on both sides of question who expected it to “resolve” the constitutionality of slavery once and for all. But Chief Justice Roger Taney went much further, declaring that based on the Property Clause of Article Four of the Constitution, the Missouri Compromise banning slavery from the territories was not only unconstitutional, but that it was legal for slave owners to bring their slaves into “free” states for an indefinite amount time--thus de facto invalidating anti-slavery statutes in those states. Taney and a 7-2 majority also ruled that Fifth Amendment Due Process clause prohibiting a person of being deprived of property meant that slaves could not be removed from their ownership for any reason.
In regard to the question of what rights Scott possessed as a resident of the United States, Taney declared that he knew very well what the “originalist” intent was:
The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all of the rights, and privileges, and immunities, guarantied [sic] by that instrument to the citizen?
We think ... that [black people] are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time [of America's founding] considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. ... They had for more than a century before been regarded as beings of an inferior order ... and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.
Now, ... the right of property in a slave is distinctly and expressly affirmed in the Constitution. ... Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the [36°N 36' latitude] line therein mentioned, is not warranted by the Constitution, and is therefore void.
Who are we to say that was not the “originalist” intent of the framers? Certainly there were those like Hamilton who had misgivings about the moral and lawful aspects of denying human beings of their “natural” rights just because they happened to be of a nonwhite race, but there were many others who felt otherwise; the question is whether that “intent” was wrong or not, especially when applied to this day and age. But original intent or not, the framers’ failure to make explicit who had rights under the Constitution allowed something like this to happen. The framers could have said that any “freeman” regardless of origin had rights that were guaranteed under the Constitution. But they did not, and it allowed “originalists” to believe that the framers never intended nonwhites to be recognized as part of the “political community” and were never intended to be “citizens” of the United States. We may think that is “crazy” now, but that is what most Southerners, and many conservative Northerners, accepted--and there are plenty of white nationalists in this country today who think they are more “real” than others.
The Dred Scott decision was eventually overturned with the passage of the 13th, 14th and 15th Amendments. The Equal Protection Clause of the Fourteenth Amendment asserted that
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This was clearly not part of the “original” intent of the framers of the Constitution, who had chosen not to foresee a time when slavery was not the law of the land, or make provisions of how to incorporate all persons born in this country as citizens with rights. It is unlikely that the “originalists” then foresaw the amendment process of the Article Five to be used to fix this flaw, and it angered many modern-day “originalists” who thought that the Brown vs. The Board of Education decision was itself “unconstitutional.” Let us remember that decision was a direct shot at Plessy vs Ferguson, which had ruled that
The object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.
. “We consider the underlying fallacy of [Plessy’s] argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
The lone dissenter in the Plessy case was John Marshall Harlan, who wrote
But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. ... In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.
Harlan was certainly alone in that view of what the framers “intended.” It took almost six decades for the Court to rule that “separate” is inherently “unequal”--and over 170 years to determine that the “original intent” as defined by judicial conservatives and racists was not just simply wrong, but made a mockery of the very words of the Constitution, that it applied only to the white majority, and not the minority. History has shown that adhering slavishly to the “originalist” theory of the Constitutions is inherently and dangerously flawed. The words of the Constitution are still valid; trying to twist their meaning by claiming to “ascertain” what the framers actually “meant” undermines the validity of the words themselves. They could not have foreseen the world we live in now; only fools pretend to know what the framers' "intent" was in regard to the Second Amendment. We only can seek to understand how the Constitution works in today’s world.
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