Comment: Barrett’s ‘originalism’ has an inconvenient history

By Simon Gilhooley / Special to The Washington Post

Judge Amy Coney Barrett, confirmed to the U.S. Supreme Court on Monday night, is a distinguished legal scholar who 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.

And so, urging their fellow members of Congress to administer the government “in the same spirit in which it was created,” defenders of slavery rejected abolition as “a violation of the letter and the whole spirit of the constitution.” Their argument worked. After the election of 1836, President Martin Van Buren gave that position presidential authority by declaring himself committed to a position on slavery in the district that accorded with “the spirit that actuated the venerated fathers of the republic.”

Over the next two decades, this view of the constitutional text and its defense of slavery grew in scope and prominence.

For abolitionists and their opponents, the intentions of the Founders and the spirit of 1787 became a vital battleground. Some of slavery’s opponents were moved to argue that the spirit of the founding period had actually been anti-slavery. In 1840, William Slade, an opponent of slavery, adopted the language of its defenders with a declaration in Congress that “abolition … was emphatically the spirit of those times.” The publication of Madison’s notes from the Constitutional Convention in 1840 made it hard to sustain such a position, though, and some abolitionists came to the conclusion that “no just or honest use of [the Constitution] can be made, in opposition to the plain intentions of its framers, except to declare the contract at an end, and to refuse to serve under it.”

This group included William Lloyd Garrison, who regarded the Constitution as irredeemably evil on the basis of those intentions and famously burned a copy in 1854. But not all abolitionists gave up this fight: In 1844, the Liberty Party declared its commitment to the “true principles of American liberty, or the true spirit of the Constitution of the United States,” by which it meant the values of antislavery that it ascribed to the Founders.

In response to such abolitionist arguments, the recognition of slavery at the time of the founding took on greater significance. In Congress, the defenders of slavery and their allies pointed to the existence of slavery in 1787 — and by extension the Founders’ acceptance of it — as the final word on the issue.

This approach seeped into constitutional law in the cases of Prigg v. Pennsylvania (1842) and Dred Scott v. Sandford (1857). In Dred Scott, the Supreme Court denied that Black people could be citizens, upended the Missouri Compromise and set the nation on the path to the Civil War. This disastrous opinion was grounded in Chief Justice Roger B. Taney’s view that the “duty of the court” was the interpretation and administration of the Constitution “according to its true intent and meaning when it was adopted.”

As a society, we have never really escaped from the effects of that moment; contemporary originalism, with its attention to textual meaning at “the origin,” is a modern incarnation of these constitutional debates in the 1830s, and the effort to preserve slavery. At the core is a fundamentally conservative effort to limit the possibilities of our constitutional order to the imagination of historical figures from the 18th century, many of whom believed in freedoms of religion, assembly and speech, but also in the existence of a natural aristocracy, chattel slavery and a rigid racial hierarchy. Until we acknowledge this “origin” of originalism in defenses of slavery, we are ill equipped to imagine a constitutional order that transcends our society’s history of racial injustice.

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.”