Unoriginal Sin: Part III

Yeah, I thought it was going to be a two-parter too. Part I starts here if you are just seeing this.

In my previous post, I wrote that it was Robert Bork rather than Antonin Scalia who had “put Originalism on the map.” To clarify, I did not mean to imply that Bork had originated Originalism either – only that he put it in the public eye and made it a political football in modern times.(1) After all, I had acknowledged that the founders had both anticipated and warned against the temptation Originalism and it did not take until modern times for anyone to take the bait.

Take Justice Robert Taney’s infamous Dred Scott decision in which he said that African Americans were “so far inferior that they had no rights which the white man was bound to respect,” and thus, “the negro might justly and lawfully be reduced to slavery for his benefit.” To Taney, blacks were never considered citizens by the founders and therefore could not sue in court. That was the basis of his decision - that we were bound by the prejudices he projected on the founders.

Abraham Lincoln disagreed. Echoing one dissenting opinion, he pointed out that free blacks could vote in many states when the Constitution was ratified. He argued that blacks’ participation in the Constitution’s ratification meant that they were also entitled to its protection. As Lincoln said, "It is grossly incorrect to say or assume, that the public estimate of the negro is more favorable now than it was at the origin of the government." On the contrary, Lincoln believed that the status of blacks had drastically deteriorated.(2)

To Lincoln's ratification argument I could add any number of anti-slavery quotes from our founders – including ones that affirm the humanity of blacks in no uncertain terms. Benjamin Franklin reasoned that freeing slaves was not enough: White society had a duty to help freedmen get acclimated and established as well – including, “To instruct, to advise, to qualify those, who have been restored to freedom, for the exercise and enjoyment of civil liberty.” In other words, for the practice of citizenship.

While there certainly was plenty of racist legislation as well, it varied by place and there was frequent change.(3) The point being is that there was never any national consensus. The issue was always in dispute. Justice Taney had made an Originalist argument. And, like most Originalists, he had grounded it on faulty, cherry-picked history - on what he imagined was original intent:

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument. 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. But the public history of every European nation displays it in a manner too plain to be mistaken.

Note the phrase “unfortunate race.” The bogus sympathy is significant. It sounds oddly modern. It reeks of the Bell Curve’s “We’re not racists, but we have to follow our data.” But in both cases, the data was junk. Pat Buchanan was far more blunt in his defense of apartheid South Africa. In his syndicated column, he mocked the concept that there was anything wrong with white supremacy. "Where did we get that idea? The Founding Fathers did not believe this.” By contrast, Justice Taney almost seems to claim he is more evolved - or at least that his times were: "It is difficult at this day to realize."

Some take Taney's tone at face value because he had freed his slaves when he was younger, but his heart had hardened since. Ultimately, his tone was a result of gentility, not sympathy. Of course, this made his argument all the more dishonest because his calcifying attitudes mirrored much of the country's.

But putting Taney's comparatively soft tone and enlightened affectation aside, he was clearly making an Originalist argument: The founders have spoken so our hands are tied. As Sol Wachtler wrote in the Touro Law Review, Taney sounds like he is addressing the Federalist Society. Indeed, Taney does:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

Towards the end of his decision, Taney hit all the previous beats - the phony sympathy, suggesting public attitudes had evolved, and claiming the court had no legal remedy - all in one run-on sentence:

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. 

Thus we must assume the worst of the founders and rule accordingly. "Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day." Seriously, Rodger Taney wrote just like Robert Bork.

Of course, Bork thought Taney's decision violated Origialism because - drum roll, please - the Constitution does not explicitly grant any right to own slaves. This argument was so absurd and dishonest that even other Originalists had balked at it. Yes, the Constitution certainly skirted the word slavery, but it recognized that institution in a range of ways from the three fifths compromise to the fugitive slave clause. The South insisted on special protections for slavery and refused to ratify the Constitution without them. Preserving slavery was their precondition for participating in every national endeavor from the Declaration of Independence on forward. And, after the Civil War, white supremacy took its place.

Moreover, in the same book that Bork made this argument, he wrote that original intent can be divined from "secondary materials, such as debates at the conventions, public discussions, newspaper articles dictionaries in use at the time, and the like." Those very documents would confirm that the founding fathers were talking about slavery. Of course, as I wrote before, Bork often ignored these materials. Most Originalists do: It's judicial fundamentalism. Bork's dishonesty mirrored Taney's in every way.

I wrote a lot about Robert Bork in my book because his Originalism encapsulates conservative thought rather aptly. Conservatives are authoritarian "traditionalists" who are militantly ignorant of history. When they insist we must submit to the dead hand of the past, they mean we must submit to whatever their elastic, reactionary imaginations can manufacture. As I wrote in the first chapter:

The Tea Party is simply Originalism applied to economics. Hence the tricorn hats they sport at protests. Indeed, Originalism is their entire motif. And Robert Bork’s martyrdom at the hands of the “liberal elite” fits the Tea Party’s victim script perfectly. It is symmetry in symbolism.

It's all there: the weaselly tyranny of "small government" advocates, the persecution fantasy of the privileged, the fear of liberalizing attitudes - real or imagined, you name it. As George Orwell had warned in his famous dystopian novel 1984, “He who controls the past, controls the future.” That's their game plan. For conservatives, history is a creature of convenience. The accuracy of their past is not as important as your loyalty and obedience. It's mythology management. 

Thomas Jefferson thought each generation must get free of the dead hand of the past. Thus, original intent says, "Forget original intent." One good reason for that is the dead hand of the past is frequently the invisible hand of self-interest. And that has not done America much good.

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(1) I was quite surprised to see that few articles on Antonin Scalia’s passing bothered to mention Robert Bork. Apparently, today’s corporate press employs lazy mother fuckers who have the collective memory of a fruit fly because actual journalists cost too much. Memo to the media: The method of interns using Google is insufficient. You still need knowledgeable people who know what keywords to enter.

(2) The idea of deterioration was a theme. As Lincoln ruefully wrote a friend: "Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that 'all men are created equal.' We now practically read it 'all men are created equal, except negroes.' When the Know-Nothings get control, it will read 'all men are created equal, except negroes, and foreigners and Catholics.' When it comes to this I should prefer emigrating to some country where they make no pretense of loving liberty - to [Tsarist] Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy."

- Abraham Lincoln, Collected Works of Abraham Lincoln, ed. Roy P. Basler (New Brunswick, NJ: Rutgers University Press, 1953), 2:323.

(3) Shortly after the American Revolution, slave codes – which also policed the behavior of free blacks – were loosened. Tobacco’s profitability was dropping and the practice of slavery was conspicuously inconsistent with the ideals of the revolution. Many people believed that slavery was dying off. Northern states abolished slavery outright during this period, while many in the South took advantage of the loosened laws to voluntarily free their own slaves. Then, Eli Whitney invented the cotton gin, restoring slavery’s obscene profitability. Slavery’s apologists went from calling it a necessary evil to calling it a positive good authored by God. (The Enlightenment was over and America was becoming less secular as well.) Money talked and legislatures listened. Not only were slave codes re-tightened, abolitionist talk was outlawed throughout the South. Criticizing slavery in any way - as Thomas Jefferson had - could get you arrested. Racism and authoritarianism accordingly worsened.

Unoriginal Sin: Part II

Let's acknowledge the elephant in the funeral parlor.

Obviously, this two-parter (now three) on Originalism was prompted by the recent death of Supreme Court Justice Antonin Scalia. There was no advocate of Originalism on the court more conspicuous or malicious than Scalia. Thus, his name became synonymous with this spectacularly dishonest doctrine.

But Justice Scalia did not originate Originalism. Indeed, he did not even put the idea on the map. That dubious distinction goes to Robert Bork, who Ronald Reagan had sought (and fortunately, failed) to put on the court. Un-fortunately, Bork became a martyr in conservative lore, which helped pave the way for other conservative appointments - like Antonin Scalia.

I talked a lot about Robert Bork in my book because his hostility to liberty and equality were legendary. This was valuable to me because my thesis was that conservatives dislike the three interdependent Enlightenment ideals of liberty, equality, and democracy that America was founded on. Bork argued that liberty and equality had both gotten out of control – while contradictorily arguing that they were locked in a zero-sum game. He never really reconciled this.(1)

Moreover, Robert Bork was what I called “a treasure trove of profoundly unpatriotic thought.” He believed that “current liberalism’s rot and decadence is merely what liberalism has been moving towards for better than two centuries.”(2) In other words, since our nation’s founding. And what is liberalism? Bork wrote, “Liberalism does not vary; it is always the twin thrusts of liberty and equality, and they never change.” Of course, for someone writing a book entitled Conservatism is Un-American, Bork's works comprise a horde of rhetorical gold that cannot be ignored. Talk about The Tempting of America.

And I am not twisting Bork’s words: He explicitly cites the American Revolution and the Enlightenment. “The idea of equality began to undergo considerable and worrisome change soon after its enshrinement in the Declaration.”(3) Yes, people started applying it – a logical result, especially since we had complained so bitterly of English tyranny.(4) And here is Bork on individual liberty:

Jefferson was a man of the Enlightenment and the Declaration of Independence is an Enlightenment document. That means not only faith in the power of reason to build a just and stable social order, but also emphasis on the individual as the building block of society. The Enlightenment optimists made a serious mistake about the nature of the individual human in whom they placed so much faith.(5)

And what I have quoted thus far is just the tip of the iceberg.

At this point, you are probably wondering how accurately such a hostile critic of the Enlightenment would interpret the Constitution. The answer is pretty awkwardly.

Let's zero-in on liberty for a bit. Thomas Jefferson said, “Rightful liberty is unobstructed action, according to our will, within limits drawn around us by the equal rights of others.”(6) Or as one-time conservative icon Barry Goldwater put it, "I am a conservative Republican, but I believe in democracy and the separation of church and state. The conservative movement is founded on the simple tenet that people have the right to live life as they please as long as they don’t hurt anyone else in the process."(7) The logical corollary of this is that our rights are infinite in number, but not breadth.  

Interestingly, this bedrock principle made some of our founders suspicious of the Bill of Rights because they worried that such a list would be used to limit our rights. For example, on October 28, 1787, Justice James Iredell argued at the North Carolina ratification convention, "[I]t would not only be useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by government without usurpation; and it would be impossible to enumerate every one. Let anyone make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it."(8) In 1789, Representative Theodore Sedgwick echoed Iredell's objection on the floor of Congress. He quipped, "[T]hey might have gone into very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper."(9)

James Madison acknowledged that this was a problem and came up with a solution: The Ninth Amendment. That's the one that says the Bill of Rights does not limit your rights to a list of ten. It states, "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." Of course, deny and disparage is exactly what Originalists do when they say that liberals are "inventing new rights." Therefore, Originalists routinely ignore original intent.

Of course, I should say that they studiously ignore original intent because they put some effort into it. Take Robert Bork's take on the Ninth Amendment at his confirmation hearings:

I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says “Congress shall make no” and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.(10)

The obvious problem with Bork's sorry ink blot analogy, is that we have a wealth of source material to tell us what the Ninth means. We have debate transcripts, pamphlets, letters, etc. But that's not the kicker. The kicker is that many founders had anticipated how Originalists could misconstrue the Constitution. Here is Justice James Iredell again:

No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. Suppose, therefore, an enumeration of a great many, but an omission of some, and that, long after all traces of our present disputes were at end, any of the omitted rights should be invaded, and the invasion be complained of; what would be the plausible answer of the government to such a complaint? Would they not naturally say, “We live at a great distance from the time when this Constitution was established. We can judge of it much better by the ideas of it entertained at the time, than by any ideas of our own. The bill of rights, passed at that time, showed that the people did not think every power retained which was not given, else this bill of rights was not only useless, but absurd. But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty. So long as the rights enumerated in the bill of rights remain unviolated, you have no reason to complain.”(11)

Both stories suppose missing documents. The difference is Iredell was speculating about the future while Bork was misrepresenting the present. Otherwise, they track exactly. It is almost as if Bork had read Iredell and thought, "What a neat idea!"

Also note the second to last line in the block quote: "But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty." Although he did not quite anticipate the founders being thought of as marble gods or prophets, James Iredell still recognized that veneration had its perceptual pitfalls.

Conservatives are so enamored with the dead hand of the past that they sometimes take it literally. When Justice Scalia died, Heritage Foundation senior fellow Hans von Spakovsky said that pending cases should be decided as if Scalia were still alive. Have sitting Justices died before in our 200+ year history? Of course. Could they vote from the grave? Of course not. But traditionalists don't really care about precedent.

If that absurdity is not enough, there is also a generous dollop of hypocrisy. As Right Wing Watch noted, "We can’t help but point out the irony that von Spakovsky has been one of the primary drivers of the myth that massive voter fraud requires suppressive laws that make it harder to vote. One of the voter-fraud specters he has raised is that of people casting votes on behalf of people who have died."

But I noticed another amusing nugget of absurdity - namely that it violates original intent. Off the top of my head I could think of several instances in which Thomas Jefferson explicitly said the dead have no rights or political voice and that was as it should be. He believed each new generation should be free of the previous one's debts and obligations. To be anchored by the past was tyranny. He wrote floridly and often on this topic, but always with a secular, scientific mindset. To Major John Cartwright, Jefferson wrote:

Rights and powers can only belong to persons, not to things, not to mere matter, unendowed with will.  The dead are not even things.  The particles of matter which composed their bodies, make part now of the bodies of other animals, vegetables, or minerals of a thousand forms.  To what then are attached the rights and powers they held while in the form of men?  A generation may bind itself as long as its majority continues in life;  when that has disappeared,  another majority is in place,  holds all the rights and powers their predecessors once held,  and may change their laws and institutions to suit themselves.(12)

Even the cautious and conservative John Adams believed, "[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it."(13)

Of course, some conservatives will protest that they never denied we had the right to change things - only the wisdom in doing so. But other conservatives feel otherwise. As I wrote in my book, Originalism functions like religious fundamentalism. "Both insist on a 'strict literal interpretation' of sacred texts while twisting them into pretzels." And neither are really freedom-friendly. As Corey Robin pointed out, Antonin Scalia was a devoutly religious authoritarian. Indeed, Scalia believed that the devil literally exists and is promoting atheism. Moreover, Thomas Jefferson was not just making a legal argument but an attitudinal one. He thought culture evolved and that government must evolve with it:

Some men look at constitutions with sanctimonious reverence and deem them like the Ark of the Covenant, too sacred to be touched.  They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.  I knew that age well; I belonged to it, and labored with it.  It deserved well of its country.  It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead.  I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also that laws and institutions must go hand in hand with the progress of the human mind.  As that becomes more developed,  more enlightened,  as new discoveries are made,  new truths disclosed,  and manners and opinions change with the change of circumstances,  institutions must advance also,  and keep pace with the times.  We might as well require a man to wear still the coat which fitted him when a boy, as a civilized society to remain ever under the regimen of their barbarous ancestors.(14)

The barbarians in today's Tea Party movement disagree. And given Donald Trump's thuggish campaign, you can hardly object to my using the B-word.

Historians rightly warn against making the mistake of presentism - of seeing the past through the lens of the present. But I am often struck by how modern-sounding some historical figures were. We will always have curious, conscientious tinkerers. And we will always have ignorant bigots - although, hopefully fewer with better education. The struggle between bullies and nerds is eternal. Who is currently winning varies over time: There are both progressive periods and nasty backlashes. This is not to deny that we have made net gains. The point is the struggle continues. Yes, the more things change, the more they stay the same. But the reverse is also true: The past was a time of constant conflict. And the founders fought a revolution no less, so they were not as averse to change as conservatives claim.

As Robert Bork acknowledged, Thomas Jefferson "was a man of the Enlightenment." But Bork thought those "Enlightenment optimists" were wrong about human nature and therefore should be ignored. Conservatives insist on judging the present by the values and attitudes of the past - except, of course, when that past is the Enlightenment and therefore inconvenient.

End of Part II -  Part III is here.

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(1)  My best guess says that Bork believed they were initially small and distant from each other and that they have only recently closed the empty ground in between. Indeed, on page 67 of Slouching Toward Gomorrah, he wrote, “[I]t was not until the twentieth century that equality became a serious threat to freedom.” There are a couple of problems with this. First, he believed that they “operate in different areas of life” with liberty reveling the realm of pleasure and equality threatening the realm of achievement. Wouldn’t this limit how much they could encroach on one another? Sure, there might be some topics where they overlap and conflict could occur, but not much. Second, he sees these oppositional forces as cooperating against traditional morality. Here he is quite right: liberty and equality do cooperate – and often (although not always) against morality. But this cooperative dynamic is awkward for his oppositional dynamic. Perhaps Bork saw liberty, equality, and morality in a three-way fight; but that is not quite the same as liberty and equality cooperating. That just means that the three forces are pushing against each other with one possibly taking the brunt depending on the issue. Maybe he thinks liberty and equality are “frenemies” who temporarily ally against tradition. But that would not explain their cooperating when traditional morality is not an issue. I have run across countless quotes from our founders that use the terms liberty and equality interchangeably and they do not concern sex, family, or religion. And we are not talking about sloppy word association – liberty and equality are built into each other’s definitions, hence their interdependence. Remember Jefferson's definition of "rightful liberty." That is also why Cato wrote, “Liberty can never subsist without equality.” Without it, might makes right and only the tyrant is free. Can liberty and equality conflict? Of course! But liberty can conflict with liberty. For example, one person’s right to know can clash with another’s right to privacy. (If you are affected, you have a right to know: Otherwise, it is nobody’s business.) Our rights bump up against each other’s all the time and it is the law’s role to referee, but that does not mean we should limit rights in order to preserve them. Yes, liberty and equality have grown during our history. The result is less hypocrisy with regard to the principle Jefferson articulated. It is fulfilling an often broken promise.

(2)  Robert H. Bork, Slouching Towards Gomorrah (New York: Reagan Books, 1997), 63.

(3)  Ibid., 67. Bork knew that he was courting controversy. On the previous page, he wrote, “The proposition that all men are created equal said what the colonists already believed, and so, as Gordon Wood put it, equality became ‘the single most powerful and radical ideological force in all American history.’ That is true and, though it verges on heresy to say so, it is also profoundly unfortunate.”

(4)  Some conservatives will invoke Edmund Burke and insist that the colonists only wanted the traditional “Rights of Englishmen” that they had been denied. But the interpretation of these rights had always been in flux on both sides of the pond. Certainly they were in dispute during the English Civil War in the 1640s. Another example would be the issue of slavery. During the Enlightenment, more Englishmen and colonists began to see it as inconsistent with British political principles. In his first draft of the Declaration of Independence, Thomas Jefferson accused King George III of forcing it on America. A bit of an exaggeration, of course. However, Royal authorities did make it difficult to free your own slaves and these regulations were later relaxed after independence was won. The point is these rights were always evolving. The American Revolution sped up this evolution, but change was already a constant long before.

(5)  Robert H. Bork, Slouching Towards Gomorrah (New York: Reagan Books, 1997), 58.

(6) Thomas Jefferson, The Political Writings of Thomas Jefferson: Representative Selections, ed. Edward Dumbauld, (New York: Liberal Arts Press, 1955), 55. The quote comes from a letter to Isaac Tiffany on April 4th, 1819. The Manuscript Division of the Library of Congress has a scan of it here.

(7) Barry Goldwater, “Job Protection For Gays,” Washington Post, July 13, 1994.

(8) Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787: Together with the Journal of the Federal Convention, Luther Martin's letter, Yates’s minutes, Congressional opinions, Virginia and Kentucky resolutions of '98-'99, and other illustrations of the Constitution, ed. Jonathan Elliot (Philadelphia: Lippincott, 1937), 4:167.

(9)  Annals of Congress, ed. Joseph Gales & William Seaton, (Washington: Gales and Seaton, 1834), Column 532 Vol. 1.

(10)  Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearing Before the Senate Comm. on the Judiciary 117 (Washington, D.C.: Government Printing Office, 1989), 249.

(11) Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787: Together with the Journal of the Federal Convention, Luther Martin's letter, Yates’s minutes, Congressional opinions, Virginia and Kentucky resolutions of '98-'99, and other illustrations of the Constitution, ed. Jonathan Elliot (Philadelphia: Lippincott, 1937), 4:149.

(12)  Thomas Jefferson, The Life and Writings of Thomas Jefferson: Including All of His Important Utterances on Public Questions, Compiled from State Papers and from His Private Correspondence, ed. Samuel Eagle Forman, (Indianapolis: Bobbbs-Merrill Co., 1900), 294.

(13)  John Adams, Article VII, Constitution of the Commonwealth of Massachusetts, 1780.

(14) Thomas Jefferson, Works of Thomas Jefferson, ed. Paul Leicester Ford (New York: Kickerbocker Press, 1904), 12:12.