Opinion The Conservative Movement’s Favorite Legal Theory Is Rooted in Racism

22:51  06 april  2021
22:51  06 april  2021 Source:   slate.com

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At least five justices on the Supreme Court identify as originalists, meaning they believe judges must interpret the Constitution as it was understood when ratified. Originalism is ascendant everywhere: on SCOTUS, on the lower courts stacked with Donald Trump nominees, in law schools and Congress and state legislatures. The Republican Party endorses originalism in its platform every four years. GOP politicians wield the doctrine to justify their own policies to attack those favored by Democrats. Progressive lawyers may fight and Democrats may gripe about it, but originalism is clearly here to stay.

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All of which raises an important question: Where, exactly, did originalism come from? Its proponents frequently assert that it is a reaction to freewheeling liberal judicial activists imposing their own views on the Constitution through an approach often called “living constitutionalism.” In a groundbreaking article published in American Political Science Review, however, University of Chicago PhD candidate Calvin TerBeek argues that modern originalism arose out of the backlash to Brown v. Board of Education, the landmark 1954 Supreme Court decision prohibiting public school segregation. TerBeek’s research—which spanned 14 archival collections, thousands of newspapers and magazines, and interviews with key players—all points in one direction: Originalism has fundamentally racist roots.

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On Tuesday, I spoke with TerBeek about the link between opposition to desegregation and a theory that dominates the current Supreme Court. Our conversation has been edited and condensed for clarity.

Mark Joseph Stern: How did conservatives develop originalism as a weapon to combat Brown?

Calvin TerBeek: After Brown came down, conservatives developed a handful of different arguments against it. The first was, let’s revive interposition and nullification, which would let states ignore Brown. It was not simply Southern conservatives making this argument—elite intellectual conservatives were, too. But after Little Rock and James Meredith at Ole Miss, these conservatives start to realize they were not going to revive interposition and nullification because they’re obviously rooted in antebellum Southern slavery.

This is where Barry Goldwater’s 1960 book The Conscience of a Conservative comes in. Goldwater alights on this “original intent” idea that had been floating around saying that the 14th Amendment’s framers had no intent of creating integrated schools. He said, this is simply a constitutional principle—it’d be great if schools were desegregated, but unfortunately the Supreme Court can’t do that, because it’s not the original intent of the 14th Amendment’s framers. From then on in the 1960s, you really start to see the conservative movement, particularly intellectuals, the folks in the law schools, start to build this up into an academic theory.

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You mentioned that the theory had been floating around for a while before it migrated to law schools. Where did it crop up first?

It was one of the main charges against Brown from the jump. But initially, the conservatives making these arguments were not elite legal academics. They were mostly media impresarios who opposed desegregation, like Dan Smoot, Clarence Manion, folks on National Review’s masthead, and politicians like Goldwater. You do have some less elite academics, as well as some state court judges and lower federal court judges, making these intent-based arguments. They would say, well the original intent of the framers was only to secure a few basic rights for black people; they certainly never meant to have desegregated schools.

As it became taboo to make more racially explicit arguments, these conservatives moved toward treating this as a matter of first constitutional principles of interpretation. They’d say: Whether or not segregation is moral or immoral has nothing to do with the inquiry. We must simply look to what the 14th Amendment’s framers thought, and that’s simply what the law is. And so, what Chief Justice Earl Warren did in Brown is not only wrong, but illegitimate as law. By moving the terrain of the argument to what they called first constitutional principles, it was no longer immediately apparent that this theory is racialized. Brown’s critics could say, “well, are you claiming these first constitutional principles are themselves racist? That can’t be true.”

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How did the argument catch fire with the conservative legal elite?

Some folks in the law schools—most notably a conservative lawyer and law professors named Alfred Avins, who defended literacy tests at the Supreme Court—started to build up this idea into an academic theory. Yale Law Professor Robert Bork talked about the “framers’ intent” in a now-canonical law review article in 1971. Six years later, Harvard Law Professor Raoul Berger endorsed “original intent” in his book Government by Judiciary. Berger’s book repeatedly attacked Brown. When Berger went on William F. Buckley’s show Firing Line to promote his book, he said “the intention” of the framers was “to create separate schools.” But Berger said he didn’t support overturning Brown because “the expectations have been aroused in the breasts of the Blacks.”

These are the type of racialized things that today’s originalists leave on the cutting room floor when they tell their own history of originalism. Originalists both on the court and in the legal academy have not dealt with the theory’s racist roots.

The standard origin story of originalism today often starts with Bork’s 1971 article. But you found that Bork’s role is vastly overstated.

As it turns out, Bork was not all that important of a thinker. He was far more interested in being a public intellectual and also active in Republican and movement conservative politics. When he’s getting ready to write this now-canonical 1971 law journal article, he even says, “these are preliminary thoughts.” And during the 1970s, his article wasn’t cited all that much, or viewed as a new huge theoretical statement. Berger was probably more important for cohering the idea of original intent.

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But Bork became Richard Nixon’s solicitor general, and he gave the theory a pedigree that allowed Ronald Reagan’s Justice Department to promote originalism. And that’s when the theory really took off.

It was terribly important that Bork was at Yale and Berger was at Harvard because this allowed legal academics and governing elites—like Ed Meese, who was counselor to Reagan, then his attorney general—to claim that this was a sophisticated theory from the highest echelons of the legal academy. Meese said originalism had to be taken seriously. And he was seen as the conservative guy in the White House.

By the way, Reagan’s Chief of Staff James Baker called Meese “big bigot,” and called assistant counselor T. Kenneth Cribb “baby bigot.” It was an open secret that these guys were racists.

How do you respond to originalists who say, well, we’ve moved from original intent to original meaning, so all this history is irrelevant?

The politics of it never change. You can go from original intent to original public meaning but the same politics are always driving the bus. It’s not an objective theory. It’s a deeply, inherently political one. And what that move did more than anything else, theoretically, was give conservatives a wider terrain of space to have a more proactive originalism, one that was not simply interested in cutting down Brown and the Warren Court, but also laying the groundwork for a more muscular, proactive conservative jurisprudence.

How do you respond to those who claim that originalism was actually the accepted theory of constitutional law until progressives overthrew it in the 20th century with living constitutionalism?

What we think of as originalist theory today is not what people were doing before living constitutionalism. To impute back to them the theory of originalism is to take our present day framework and place it onto them in ways that they would not have understood. This is intellectual history 101. When people invoked the “original intent” construct prior to Brown, they almost always did so in this high level of generality, an argument from 10,000 feet. They would say things like, “the growth of the bureaucracy has resulted in the perversion of the intent of the constitution.” Or they would criticize progressive amendments, like those allowing women’s suffrage and an income tax, as running afoul of what the Constitution was supposed to mean as originally drafted.

They did not mine specific clauses in constitutional amendments to figure out what the framers thought when they wrote the text of the Constitution; that was just not part of their toolkit. Originalism as we know it today developed directly in response to Brown.

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This is interesting!