Amy Coney Barrett’s Philosophy Has Far Worse Roots Than Most Americans KnowRoundup
tags: conservatism, slavery, Supreme Court, originalism, SCOTUS, judiciary, Legal theory
Simon Gilhooley is assistant professor of political studies and American studies at Bard College and author of The Antebellum Origins of the Modern Constitution: Slavery and the Spirit of the American Founding.
On Monday, the Senate is expected to confirm Judge Amy Coney Barrett to the Supreme Court. Barrett, a distinguished legal scholar, has been identified as an adherent of “originalism,” defined in her own words as a belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” Part of the debate about Barrett’s confirmation has centered on procedure, but the legitimacy of originalism as a doctrine also has been raised, particularly its compatibility with landmark Supreme Court decisions, such as Brown v. Board of Education and Roe v. Wade.
In the 1970s and 1980s, a legal doctrine — originalism — in which courts are guided by the “original meaning” of the constitutional text emerged. Tying the Constitution to views of the 18th-century founders proved to be an effective way to push back against the “liberal” decisions of the Earl Warren and Warren Burger courts on issues of civil rights and the extent of the federal government’s power. In the words of Ronald Reagan’s attorney general, Edwin Meese, originalism (then identified as “original intention”) offered “defensible principles of government that would not be tainted by ideological predilection.”
But the underlying assumption of originalism — that historical understanding about the constitutional text drawn from the time of its creation should control its contemporary interpretation — has a far longer history with another ideological agenda: protecting slavery.
In the 1830s, politicians and commentators developed and pushed an argument that the constitutional text could be understood only in correspondence with the attitudes and understandings of the founding generation — which give it particular meaning — as a way to oppose calls for ending slavery in the District of Columbia. This notion developed as a way to stop calls for abolition, and it continues to be a fruitful way to place obstacles in the path of liberal policies.
Pointing to the original intentions of the Founders became important for debates about slavery in the District in the 1830s. The slaveholding city had become a hub: About 6,000 enslaved people were held in the District, with many others transported through the city on public highways, held in public and private jails and forced onto ships departing Alexandria for the New Orleans market. Recognizing the economic, political and symbolic importance of Washington to slavery, Black and White abolitionists condemned the District as “a national monument of oppression.”
And so, they turned to the Constitution, which granted Congress exclusive authority over the District, and urged the nation’s legislative body to pass legislation ending the practice of slavery in the nation’s capital.
Before the 1830s, the view that Congress had the power to abolish slavery in the Washington was not an overly controversial position. In fact, an 1829 congressional report conceded that Congress had this power, but suggested that it was not called for at that time.
Things changed in the 1830s, however. Abolitionist petitioning campaigns placed greater pressure on Congress to act. In response, Southern defenders of slavery increasingly balked at the discussion of what they thought was the first step in a wider emancipation. Attempting to find a reason that abolition in the District should not be discussed, they launched an “originalist” argument — that the atmosphere surrounding the creation of the Constitution had respected the institution of slavery where it already existed. Thus, the constitutional text could be authoritatively understood only when read in the context of that spirit supporting slavery.
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