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ON ORIGINALISM PART 2

IS THE U.S. Constitution carved in stone? An originalist would claim so. Yesterday in Part 1, we offered a satirical view from Dan Rather (use leeches as medicine? travel by mule?) and began a thread initiated by Jamelle Bouie asking “Which Constitution is Amy Coney Barrett Talking About?” We continue this thread today in Part 2 by examining amendments to the U.S. Constitution and other law.

Jamelle Bouie, Virginia-born 1987, American journalist and columnist for The New York Times.

An Amendment Selection. The Thirteenth Amendment to the Constitution, ratified in 1865, abolished slavery. The Fourteenth (1868) defines citizenship, Due Process, Equal Protection, and other post-Civil War matters. The Fifteenth (1869) prohibits the denial of the right to vote based on race, color, or previous condition of servitude.

The Sixteenth (1909) permits Congress to levy an income tax.

The Eighteenth (1919) brought in Prohibition; the Twenty-first (1933) ended it. 

In between these two, the Nineteenth Amendment (1920) gave women the vote.

Image from USA Today.

Of the remaining six amendments, only the Twenty-fourth (1964) affects everyone: It prohibits poll taxes. 

Which Constitution is Barrett’s “Original”? Bouie cites historians recognizing the Thirteenth, Fourteenth, and Fifteenth Amendments as reframing the Constitution “with an eye toward a more free and equal country.”

This “Reconstruction Constitution,” Bouie writes, “established a biracial democracy that made the federal government what Charles Sumner called the ‘custodian of freedom’ and a ‘caretaker of equal right.’ ” 

Bouie observes, “… Ruth Bader Ginsburg stands as a particularly strong example, because she used the Fourteenth Amendment to fight sex discrimination, giving more and greater meaning to the amendment in the process.”

And What of Other Supreme Court Rulings? An originalist’s “Constitution as ratified” ignores important Supreme Court decisions that have affected us all. For example, Brown v. Board of Education (1954) ruled against “separate but equal” segregated facilities. 

Brown v. Board of Education, 1954. Image from britiannica.com.

Loving v. Virginia (1967) established that interracial marriages were matters of personal decision. Roe v. Wade (1973) made a woman’s access to abortion a constitutional right. United States v. Nixon (1974) addressed the matter of executive privilege and was pivotal in Nixon’s resignation. Bush v. Gore (2000) settled a recount dispute in Florida’s 2000 presidential election. Obergefell v. Hodges (2015) ruled that same-sex marriages were matters of personal decision.

And, as recently as June 15, 2020, the Supreme Court ruled that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex. Noted NPR, “The decision is a huge victory for the LGBTQ community and a major loss for the Trump administration, which had sided with employers in three cases before the court.” 

Stare Decisis. There’s the legal term stare decisis, loosely, Latin for “let the decision stand.” Note that each of these Supreme Court rulings cited here would seem to fall within this precedent-setting category. 

However, in Stare Decisis and Due Process, 2003, Amy Coney Barrett, then at Notre Dame Law School, wrote, “In this Article, I argue that the preclusive effect of precedent raises due-process concerns, and, on occasion, slides into unconstitutionality.”  

Bouie’s Conclusion on Originalism. “As a matter of history,” Bouie writes, “the Constitution is neither fixed in meaning nor in structure; the men who wrote and ratified it disagreed as much about what it meant as we do today. But even if it had a singular meaning, you would still have to make a choice about which Constitution to adhere to, either one written to secure the interests of a narrow elite or one written for the sake of us all.” ds

© Dennis Simanaitis, SimanaitisSays.com, 2020  

3 comments on “ON ORIGINALISM PART 2

  1. Tom Austin
    October 22, 2020

    Excellent piece!

    • simanaitissays
      October 22, 2020

      Thank you, Tom, for your kind words. (I learned a lot researching it.)

    • edpietra13gmailcom
      October 24, 2020

      Agree!

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