Last spring in Washington, D.C. at the Federalist Society’s National Student Symposium, Justice Thomas told a room full of law students to “get rid of [their] pessimism.” Justice Thomas, your words have been ringing in my ears. Admittedly, many aspects of America’s contemporary legal and political landscape engender a lingering pessimism in me. I’d like to step back a moment from this divisive arena we encounter every day and briefly discuss a few points of optimism.
The Evil Spirits of the Modern Daily Press (Puck Magazine 1888)
On October 18, 2018, I participated in a presentation entitled “Free Speech and Originalist Jurisprudence” at the University of Wisconsin-Stout along with Professor Alan Bigel (UW-Lacrosse). The event was part of Free Speech Week sponsored by the Center for Study of Institutions and Innovation. What follows is a copy of my prepared remarks.
“In December 1783, George Washington gave a toast at a dinner celebrating the formal dissolution of the Revolutionary Army. He did not use his toast to offer a tribute to individual liberty. Nor did he sing the praises of limited government. Instead, his toast was a simple expression of what he hoped the future would bring to our new nation. He raised his glass and he said: “Competent powers to Congress for general purposes.”
I wrote that in a 2012 blog post, and I received an immediate and angry response from a lawyer who denied that George Washington ever said such a thing, and who rejected the idea that George Washington ever supported a powerful national government. This well documented historical fact did not fit within the reader’s understanding of the original intent of our U.S. Constitution — and therefore the reader simply could not believe that the quotation could be accurate.
The response of this reader reflects the fact that, for many persons, originalism is primarily a culturally expressive theory – a theory that expresses a culture that reflects conservative political views, moral traditionalism, and a tendency towards libertarianism. (Jamal Greene, Nathaniel Persily & Stephen Ansolabehere, “Profiling Originalism,” 111 COLUMBIA L. REV. 356, 400-402 (2011)).
However, originalism as a theory was not invented in order to provide a vehicle for cultural expression. Instead, the goal of originalism is to provide an interpretive method for objectively defining the meaning of the U.S. Constitution.
There is an abundant historical record supporting the conclusion that the United States Constitution was promoted by a core group of political leaders in order to strengthen the national government, and that the Constitution was understood by the people during the ratification debate to do just that.
In rejecting this historical record, the lawyer who responded to my blog post revealed that he was more devoted to his favored myth of original meaning than he was to objectively weighing the available evidence of actual meaning.
This 19th Century Thomas Nast cartoon shows an African American at the Gates of Heaven, telling Saint Peter that the Civil Rights Act of 1875 opens all gates for him. Nast’s caption calls on white churches to desegregate.
On the 135th Anniversary of the Supreme Court’s opinion in The Civil Rights Cases, it is worth reflecting on how that opinion — which came after Reconstruction but before Jim Crow—reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the power of the history of slavery and the salience of race, contributes to enduring white supremacy.
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.
The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments.
Last spring in Washington, D.C. at the Federalist Society’s National Student Symposium, Justice Thomas told a room full of law students to “get rid of [their] pessimism.” Justice Thomas, your words have been ringing in my ears. Admittedly, many aspects of America’s contemporary legal and political landscape engender a lingering pessimism in me. I’d like to step back a moment from this divisive arena we encounter every day and briefly discuss a few points of optimism.
