“Progressive Originalism”

Written by Rebecca Zietlow on March 19th, 2009

The Wall Street Journal had an interesting article this week about the surge of interest in originalism among constitutional scholars and advocates.  These scholars and advocates focus not on the original constitutiojohn-bingham.jpgn, but on the Reconstruction Era, also known as the Second Founding because the Reconstruction Amendments changed our constitution so fundamentally.  I am happy to see the Framers of the Reconstruction constitution getting attention in the mainstream media, especially John Bingham, the original author of Section One of the Fourteenth Amendment and one of the leading constitutional theorists in the Reconstruction Congress.  The article also provides an opportunity to consider the question of originalism as a method of constitutional interpretation, and whether “preogressive originalism” is an oxymoron.  “Originalism” as a method of constitutional interpretation has long been associated with conservative ideology.  Indeed, originalism is a fundamentally conservative method of constitutional interpretation in the classic sense of conservatism.  There are varying schools of originalism, but basically originalists ask judges who are interpreting the constitution to look back at the past and to be bound (to varying extents depending on the scholar or judge) by the meaning of the constitution at the time that it was drafted.

Given the fundamentally conservative nature of originalism, how could any originalist consider him or herself to be “progressive?”  For scholars such as myself who research and write about the Reconstruction Era, the answer is simple.  The members of the Reconstruction Congress were progressive, very progressive, even radical.  They intended the Reconstruction Amendments to alter our system of federalism by transfering the primary responsibility over individual rights from the states to the federal government.  They also had a very broad vision of what these individual rights would be, ranging from the rights to life, liberty and property to all of the fundamental rights.  Finally, and perhaps most importantly, they were the first to give Congress the power to define and protect our individual rights by including congressional enforcement clauses in the Reconstruction Amendments.

Focusing on Reconstruction enables scholars to be originalists and believe that the constitution is a progressive document at the same time.  But this attitude does not answer the fundamental dilemma of constitutional interpretation – whether those interpreting the constitution must always look back to what constitutional provisions meant at the time that they were written, or whether they can consider what those provisions mean in contemporary times.  Conservative originalists like originalism because it cabins the discretion of unaccountable judges when they are interpreting the constitution.  They argue that considering the contemporary meaning of constitutional provisions is an invitation to judges to allow their political and personal views to color their interpretation of the Constitution.

The dilemma of “progressive originalism” is less problematic when we understand that the members of the Reconstruction Congress did not believe that judges were the sole, or even the primary interpreters of the constitution.  Like conservative originalists, members of the Reconstruction Congress were very skeptical of the judicial branch, which they recognized as the author of Dred Scott and an apologist for the Slave Power.  They also believed that members of Congress had a large amount of autonomy to interpret the constitution themselves, and they intended the congressional enforcement clauses to reflect this vision of constitutional interpretation.  When members of Congress interpret the constitution, they need not look back to the meaning of those provisions at the time that they were adopted.  Instead, they may take their political views and contemporary circumstances into account.  That is their job, and that is the task assigned to them by the Reconstruction Congress.  The Framers of the Reconstruction Amendments assumed that those interpreting the broad provisions establishing individual rights in those amendments would take contemporary circumstances into account.  They just didn’t expect the Court to monopolize that interpretation the way that it has in cases such as City of Boerne v. Flores.  Thus, an originalist understanding of the Reconstruction Amendments is progressive, both politically and institutionally.

Unfortunately, the current Supreme Court, comprised primarily of “originalists,” has failed to take an originalist approach to the Fourteenth Amendment.  In Boerne, the Court restricted the Congress’ power to enforce the Fourteenth Amendment in a manner that would have made Reconstruction Framers such as Bingham, James Ashley and Lyman Trumbull roll over in their graves.  Let’s hope the new originalist approach to Reconstruction makes its way to the US Supreme Court, so that the progressive vision of the Reconstruction Framers can be restored – not just in the courts, but also in Congress.


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