“This is Intellectual History 101,” Calvin TerBeek tells Slate’s Mark Joseph Stern. TerBeek is a University of Chicago Ph.D. candidate whose article in the American Political Science Review argues that the Republican Party’s adoption of constitutional originalism arose not from scholarly roots but as backlash to the Supreme Court’s 1954 Brown v. Board of Education decision. What constitutes originalism today would be unrecognizable by legal theorists who came before Brown. Nonetheless, originalism claims roots in that old-time Constitution.
TerBeek’s work draws on “14 archival collections, thousands of newspapers and magazines, and interviews with key players,” Stern writes, and undercuts notions that originalism arose from “original intent” ideas expressed in Barry Goldwater’s 1960 book, “The Conscience of a Conservative,” or a decade later with a 1971 article by Yale Law professor Robert Bork. So where did originalism come from?
A hell of a lot more abstract
Early conservative arguments for assaulting Brown suffered from being too “obviously rooted in antebellum Southern slavery,” TerBeek argues. What Brown critics needed was something, as Lee Atwater would say years later, a hell of a lot more abstract.
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.”
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.
It was good for Strom and Pinckney
Bottom line, TerBeek tells Slate:
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.
Once it had academics from elite schools to make it respectable, the theory migrated with the Reagan administration to the highest echelons in Washington, D.C.
Eric Segall comments at Dorf on Law blog:
Once conservatives seized power of the federal judiciary in the 1990’s after 12 years of Reagan/Bush judges and justices, a new form of originalism emerged, led by Justice Scalia’s pivot from original intent to original meaning and the work of academics such as Keith Whittington, Larry Solum, and Randy Barnett. These so-called New Originalists dropped the deference aspects of originalism touted by Bork and Berger and eventually moved away from a purely historical originalism to a more linguistic-focused originalism. Then came numerous other originalist theories, such as original-methods originalism and originalism-is-our law originalism. Today, most originalists admit that originalism is actually a family of different theories united by the ideas that the meaning of the Constitution was fixed at ratification and that meaning, where it exists, binds judges. This standard narrative is in my book Originalism as Faith as well as other historical summaries of originalism.
Segall cites an earlier analysis of his: “One would think anyone wanting judges to make decisions today based on a world where only white males had equal rights under the law would develop a sophisticated theory why that is something judges ought to do. Very few originalists deal with this problem in any manner, much less a persuasive one.”
Maybe it’s enough that they can sing it?
Give me that old-time religion
Give me that old-time religion
Give me that old-time religion
Its’ good enough for me!
It was good for Strom and Pinckney….