Original Meaning, Context, and Shifting Reference Points: The Racial Connotations of "Freedmen"

At the Atlantic, Adam Serwer critiques Justice Thomas's analysis of the original meaning of the Fourteenth Amendment's Equal Protection Clause in the Court's Students for Fair Admissions, Inc. v. President and Fellows of Harvard College opinion. Specifically, Serwer takes issue with Thomas's claim that the term "freedmen" was racially neutral. Michael Rappaport, whose work Thomas cites in support of this claim, calls out Serwer, labeling his article as a "screed" rife with mistakes. Rappaport then argues that the term "freedmen" is race-neutral and ought to be read as referring to former slaves rather than Black people.

Below, I set out the arguments, starting with Justice Thomas, moving to Serwer, and concluding with Rappaport. I then demonstrate the flaws in Rappaport's response (and, in turn, Thomas's reasoning)--arguing that his arguments only succeed by sidestepping context necessary to determine original meaning and using shifting definitional reference points to avoid arguments about original meaning.

Setting the Stage

In SFFA v. Harvard, the Court struck down Harvard's and the University of North Carolina's affirmative action programs. In doing so, the Court concluded that the types of programs employed were inconsistent with the Fourteenth Amendment's Equal Protection Clause. While the majority's treatment of the Fourteenth Amendment's history and original meaning was relatively brief, Justice Thomas authored a lengthy concurrence purporting to demonstrate the original meaning of the Equal Protection Clause and why affirmative action programs are inconsistent with the clause.

In doing so, Justice Thomas defends a "colorblind" version of equal protection, drawing repeatedly on Justice Harlan's dissent in Plessy v. Ferguson. Here's one example of how Justice Thomas quotes Harlan:

For Justice Harlan, the Constitution was colorblind and categorically rejected laws designed to protect “a dominant race—a superior class of citizens,” while imposing a “badge of servitude” on others. (p. 17)

For what it's worth, here's how Justice Harlan discussed the Constitution's colorblindness:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

To very quickly summarize: the colorblind approach to equal protection is important to Justice Thomas (and the majority) because they read the Equal Protection Clause as a blanket ban on any racial distinctions in law. This applies not only to laws that disadvantage or denigrate people on the basis of race, but also laws that are designed to provide benefits to people on the basis of race. A strict, colorblind reading of the Fourteenth Amendment's guarantee of "the equal protection of the laws," therefore prohibits affirmative action programs, which increase the probability of admission for certain applicants on the basis of race.

In arguing that the Fourteenth Amendment's original meaning supports such a reading, one obstacle Thomas confronts is that of laws providing particular benefits and protections to "freedmen," or former slaves, enacted around the time of the Fourteenth Amendment's enactment and ratification. The argument with which Thomas contends is that laws like the 1865 and 1866 Freedmen's Bureau Acts provided benefits to freedmen, and therefore provided benefits on the basis of race. This undermines an originalist reading that the Fourteenth Amendment was meant to be neutral above all else by demonstrating that the same Congress that voted for the Fourteenth Amendment also enacted laws containing racial classifications.

Thomas rejects this reading of the Freedmen's Bureau Acts:

Importantly, however, the Acts applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large. And, because “not all blacks in the United States were former slaves,” “ ‘freedman’ ” was a decidedly underinclusive proxy for race. M. Rappaport, Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71, 98 (2013) (Rappaport). Moreover, the Freedmen’s Bureau served newly freed slaves alongside white refugees. P. Moreno, Racial Classifications and Reconstruction Legislation, 61 J. So. Hist. 271, 276–277 (1995); R. Barnett & E. Bernick, The Original Meaning of the Fourteenth Amendment 119 (2021). And, advocates of the law explicitly disclaimed any view rooted in modern conceptions of antisubordination. To the contrary, they explicitly clarified that the equality sought by the law was not one in which all men shall be “six feet high”; rather, it strove to ensure that freedmen enjoy “equal rights before the law” such that “each man shall have the right to pursue in his own way life, liberty, and happiness.” Cong. Globe, 39th Cong., 1st Sess., at 322, 342.

In his Atlantic article, Serwer rejects this argument:

“Freedmen” cannot be a “formally race-neutral category,” because American slavery was not a formally race-neutral institution. Moreover, an extensive historical record illuminates the intentions of the lawmakers who passed the Freedmen’s Bureau Acts. They certainly did not see the term freedmen as racially neutral, and they intended the bureau to protect the rights of Black people in the South, whether formerly enslaved or not. We know this because they said so; the insistence to the contrary is the result of conservatives projecting their version of “color blindness” backwards through time.

Serwer goes on to argue that ninety percent of Black people were slaves in 1860, citing an email exchange with historian Eric Foner. He also points to evidence that supporters of the Freedmen's Bureau Acts, those who debated them, and Justice Thomas himself use the terms "freedmen" and "blacks" independently. These arguments align with points made by Justice Sotomayor in her dissent (pp. 6-8) where she also notes that "contemporaries understood that the Freedmen's Bureau Act benefited Black people" and that the same congress that passed the Act also passed the Fourteenth Amendment.

At The Originalism Blog, Mike Rappaport takes issue with Serwer, arguing that Serwer manages to "include both the main mistakes historians make about the Freedmen’s Bureau Acts and some of the principal slanders against modern originalism." Rappaport also chides Serwer for failing to read his law review article, "Originalism and the Colorblind Constitution," which Thomas cites in his concurrence (a citation included in the quoted excerpt of Thomas's concurrence).

Rappaport argues that Serwer fails to defeat the originalist case for a race-neutral reading of the Equal Protection Clause, focusing on evidence regarding the Freedmen's Bureau Acts:

If Serwer wants to prove his point, he needs to claim that freedmen meant blacks rather than former slaves. But that is pretty difficult, given that the term “freedmen” pretty clearly indicates someone who used to be a slave and has now been freed. Serwer quotes a couple of historians to claim otherwise but their arguments miss the point. For example, Serwer quotes an Eric Foner email stating “Ninety percent of Blacks were slaves in 1860, and everyone knew whom the Freedom Bureau Act was meant to assist.” But that is not the question. The question is whether "freedmen" referred to people based on their color or based on circumstances.

Serwer’s principal argument is that all freedmen were black. True enough, but irrelevant. The question is whether "freedmen" was a category that selected people based on race. It does not. Not all blacks were freedmen. Some had been born free. (And there were no whites, who were former slaves, who were not treated as freedmen.) The Act identifies a category based on circumstances, not race. 

Is the Original Meaning of "Freedmen" Race-Neutral?

With this extensive stage-setting finally done, it's worth taking a step back to look at what it is Thomas and Rappaport are trying to prove. Both zero in on the textual meaning of "freedmen" to advance their points. But it's worth keeping in mind that the meaning of "freedmen" is secondary--the ultimate goal here is how the term "freedmen" informs the meaning of "equal protection of the laws" in the Fourteenth Amendment.

How does this argument function? Those like Serwer and Sotomayor contend that if "freedmen" is not racially-neutral, then laws that explicitly benefit freedmen are therefore laws that provide a benefit based on race. The Freedmen's Bureau Act doesn't involve the exact same terminology of "Equal Protection," but the implication is that if it is not racially neutral, then it provides context for understanding the meaning of other language approved of by the same enacting body. In short, a strict, race-neutral reading of equal protection doesn't make sense if enacted by a Congress that also enacted race-based benefit schemes.

Rappaport and Thomas zoom in on terms and technical definitions to advance their race-neutral reading. Rappaport's point in his blog is a good distilled version of the arguments he makes in his article, and Thomas's reasoning is an even briefer version of the points. "Freedmen" isn't a racial term because not all Black people were slaves (Rappaport does acknowledge in his article that 89 percent of Black people at the time of the Civil War were slaves, and that, of the remaining 11 percent, "some, of course, were former slaves") (p. 98 n.108).

Through this exchange, it's important to track what reference points the parties are employing in defining the term, "freedmen." Serwer and Sotomayor appear to be arguing from an original intent (and, potentially, a limited original public meaning) approach. The meaning of "freedmen," at least as understood among those debating and enacting the Fourteenth Amendment and Freedmen's Bureau Acts, was not race-neutral. Accordingly, a law providing benefits based on freedmen status is a race-based classification. Rappaport purports to respond to this argument, but does so by employing a different reference point: the dictionary definition of "freedmen" as "formerly enslaved person"--a definition which, in turn, does not apply to all Black people (as a small percentage of Black people had not been enslaved). Rappaport seizes on this definitional to argue that the term is therefore race-neutral. But this is unconvincing. 

First, this argument requires one to look past the sheer proportion of Black people who fit into the "freedman" category and the fact that all people in the "freedmen" category were Black. All of this provides valuable context for what those using "freedmen" at the time of the enactment of the Freedmen's Bureau Acts and the Fourteenth Amendment meant: that "freedmen" was a racialized term used to refer to Black people. This is the point Serwer makes when he notes that those in the 39th Congress, and Justice Thomas himself, use "freedmen" interchangeably with "Blacks" and "negroes."

And context is important when determining original meaning. After all, this entire debate over the meaning of "freedmen" is taking place because the meaning of the Freedmen's Bureau Acts provides contextual evidence for or against a race-neutral reading of "equal protection" in the Fourteenth Amendment. It therefore seems quite strange to admit contextual evidence like the Freedmen's Bureau Acts to determine the meaning of the Fourteenth Amendment, while overlooking contextual evidence of the racial makeup freedmen and the low percentage of Black non-freedmen when attempting to sort out the original meaning of "freedmen."

Second, by changing his reference point, Rappaport does not engage with what Serwer and Sotomayor are discussing: the original understanding of the "freedmen" by those in Congress (and potentially the public). In the context of this debate, and most originalist analysis, it is this type of definition--not strained dictionary manipulation--that is characteristic of the original meaning that ought to be employed in the final analysis. Serwer and Sotomayor argue on this level. Rappaport (and for the most part Thomas) do not.

As a result, Rappaport's response fails to engage with Serwer's argument, which relies on context and the understanding of those enacting the Freedmen's Bureau Acts and the Fourteenth Amendment--context and understanding that, despite "freedmen's" dictionary definition of "freed slave," imbues the term with racial meaning. Instead, Rappaport's response falls back on dictionary definitions and notions of inclusiveness, technical points that he fails to connect with the understanding of those in Congress or the general public at the time the Fourteenth Amendment was enacted.

Rappaport suggests that Serwer failed to consult his law review article, so let's not make that mistake. In his article, it looks like Rappaport comes closer to addressing Serwer's point:

Second, while as a formal matter freedmen is not a racial term, it obviously has a strong connection and overlap with race. Thus, even if one does not treat the term as racial, one would still want to closely examine whether the term was being secretly used for racial purposes. There is, however, no reason to believe that the term freedmen was being used in this manner. There is an obvious reason why the Congress might have passed these Acts that has nothing to do with the race of the former slaves. These slaves had been oppressed in the most extensive way and had not received a basic education or learned the trade skills necessary to live self-sufficiently. Moreover, not only did they lack human capital, they also had acquired no physical capital in the form of land or money. Thus, it made perfect sense to provide them with education, food, shelter, and land in order to allow people who had been uniquely oppressed to enter society as free individuals. Further, even if one did not believe that these goods and services were needed to allow the former slaves to live self-sufficiently, one might argue that the benefits could be justified as a limited form of compensation for the harms these slaves had suffered.

Here, however, Rappaport still fails to engage with original meaning and context. Rappaport's initial recognition of the "strong connection and overlap with race" that the term "freedmen" quickly devolves into an inquiry over whether the term was being "secretly used for racial purposes." At this point, Rappaport has already left the debate. Assuming secrecy and subterfuge also assumes that the term, "freedmen" wasn't generally understood to have racial connotations--the point that Rappaport is supposed to be disproving. There is no secret, as using the term "freedmen" in a law is evidence enough that one is making a race-based classification.

From here, Rappaport's line of argument continues afield. He argues that there were reasons other than race to use the term "freedman." These former slaves hadn't received a basic education, they lacked human capital, they had no money or shelter. It's because of these conditions of slavery--not race, that they deserve special treatment.

This line of argumentation misses the point for two reasons. First, Rappaport's resort to the reasons for why Congress passed acts targeting freedmen fail to delve into why freedmen were enslaved and therefore lacked land, money, education, and other resources. They were enslaved because of their race. Accordingly, these alternative reasons remain inextricably connected with race. 

Second, as flagged above, the notion that there's a "secret" effort to target race begs the question by assuming that "freedmen" is not a racial term. But as Serwer argues, and as Rappaport appears to acknowledge at the beginning of this paragraph, "freedmen" is a racial term. In context--in a nation where slavery had just ended, where all the slaves were Black, and where the vast majority of Black people were former slaves--the term "freedmen" has racial connotations. The definitional parsing and claims of underinclusiveness do not engage with this contextual point. As with the previous line of argumentation, the resort to underinclusiveness claims is an unexplained and unwarranted abandonment of the relevant context and fails to refer back to original meaning.

The overall goal of this post was to lay out why it is that Rappaport's arguments appear unconvincing. His point may seem off at the outset, but without parsing out the different reference points involved in the debate and Rappaport's shift to dictionary definitions while purporting to describe original understanding, it may not be clear why precisely Rappaport's arguments fail to land.

The Implications of "Refugees"

This post is already too long, so why not make it just a bit longer? Both Thomas and Rappaport (in his article, at least) argue that the Freedmen's Bureau Acts also provided benefits for "refugees"--a term that both Rappaport and Thomas suggest mainly referred to white people. Thomas's argument on this point is short and fails to explain the significance of the point: "Moreover, the Freedmen's Bureau served newly freed slaves alongside white refugees." Rappaport's argument is more detailed:

Third, the bulk of the provisions under the Freedmen's Bureau Acts provided benefits to both freedmen and refugees. The term refugees would normally include whites, and once it is recognized that virtually all southern blacks would be freedmen, refugees becomes a term that would appear to have been intended mainly to cover whites. If one were concerned that the use of freedmen was an attempt to provide benefits on racial grounds, then the inclusion of refugees should help to quiet that concern. One question that one must ask about a category that overlaps with race is whether that nonracial category is being used as a subterfuge to benefit or harm a race. If the Acts merely provided benefits to freedmen, even though non-blacks were similarly in need of the same benefits, then one might be suspicious of the omission. By contrast, if the benefit is extended to non-blacks in a similar position, there is far less concern of it being a secretive attempt to provide racial benefits. I am skeptical that refugees really were similarly situated to former slaves, but if one did think so, this would quiet that concern. Moreover, there is evidence in the legislative history that refugees were added in part because of concerns that the proposed legislation was seen by some as race-based.

While Rappaport's treatment of refugee benefits is longer than Thomas's, it's still unclear how this proves the point that benefits provided to freedmen weren't benefits provided on racial grounds. Rappaport appears to acknowledge that this point has no bearing on the racial connotations of "freedmen," now acknowledging that all freedmen are Black and suggesting that benefit provision to refugees therefore applies mainly to white people. At the same time, Rappaport continues to argue as though providing benefits to Black people is being attempted via subterfuge--a tactic that (as noted above) assumes the conclusion that "freedmen" was originally understood to be race-neutral. The most apparent issue is that even if "refugee" is a race-neutral term, it's unclear how what bearing its neutrality has on the separate term, "freedmen."

It appears that Rappaport is arguing that the Freedmen Bureau's Act, by providing benefits to refugees, balances out the allocation of benefits "to non-blacks in a similar position" and therefore balances out the provision of benefits to white people and Black people. His final sentence supports this reading, where he notes that there's evidence that "refugees were added in part because of concerns that the proposed legislation was seen by some as race-based."

But if this is the point Rappaport is making, it only succeeds if one assumes the opposite of what Rappaport is attempting to prove, that providing benefits to "freedmen" is the provision of benefits on the basis of race. If including refugees as a separate category of beneficiaries is necessary to accomplish racial neutrality, then any benefit specifically provided to freedmen is a benefit provided on the basis of race. Indeed, from a racial classification perspective, this seems to be even more problematic for Rappaport's colorblind vision, as this reading characterizes the Act as counteracting one racial classification with a second, separate racial classification. 

Problems arise further to the extent that benefits were allocated differently between refugees and freedmen. Eric Schnapper details this differentiated treatment, highlighting "four race-conscious provisions" in the Freedmen's Bureau Act of 1866, including a different scope of overall aid to be provided to freedmen as opposed to refugees, a limitation of the use of land and buildings for education to freedmen only, and certain land protections for freedmen only." (p. 772-73). 

Ultimately, this point is secondary, and gets fairly short shrift in Thomas's opinion. But it's worth mentioning to the extent that it further demonstrates Rappaport's shifting and lack of clarity regarding definitional reference points.

There is much more to discuss regarding the Court's opinion, Thomas's concurrence, and even the original meaning of freedmen. But this post is now far longer than reason demands, and I will leave it to the reader to seek out commentary on those other points elsewhere. I'm sure, as the weeks and months go on, much more will be said.

Choosing the President at Random?

Earlier this month, I became aware via the Legal History Blog that The Amendments Project at Harvard University had released a searchable archive of nearly all amendments that have been proposed to the US Constitution. Jill Lepore and David Woods Kemper are to thank for this incredible undertaking. The archive is available here.

From the announcement:

In total, the Amendments Project has compiled over 20,000 proposed amendments, including 11,000 officially introduced in Congress and 9,000 more put forward through petition. Compiling data from congressional records, the Congressional Petitions Database, and online petitions, the fully searchable database is the most comprehensive archive of attempted constitutional amendments to date. The search feature allows anyone to sort amendments by topic, date, sponsor, party affiliation, and type (e.g., petition, bill, etc.).

Naturally, I decided to poke around in the database to see what odd an interesting proposed amendments I could find. One of my favorites was proposed in a December 17, 1844 bill introduced by Ohio Representative Samuel Finley Vinton. Here's how it starts:

From and after the year one thousand eight hundred and sixty, the people in each State, entitled to vote for members of the House of Representatives of the United States, shall elect from among its citizens a candidate for the presidency of the United States; in which election a majority of all the votes given shall be necessary to a choice. If, upon the first vote in any State, no one person shall have a majority of all the votes given, another vote shall be had, which shall be confined to the two persons having the greatest number of votes at the former voting; and if, upon such second vote, the two persons voted for shall have an equal number of votes, the choice between them shall be determined by lot.

At first glance, this seemed straightforward. But the amendment's requirement that each state must elect "from among its citizens" a presidential candidate means that each state will be voting for a different candidate (assuming that one person cannot be a citizen of multiple states). As a result, each state will end up electing a different person to proceed to the next stage of the election process, where things get even more bizarre: 

The election of candidates in each State shall be certified to the Congress of the United States; and after the certificates of election in all of the States shall have been transmitted to Congress, uniform balls, equal in number to the whole number of members of the Senate and House of Representatives, shall be deposited in a box; and before depositing thereof, the name of each State in the United States shall be inscribed on as many of said balls as shall be equal to the whole number of its members in both branches of Congress. And in the presence of both houses of Congress a ball shall be drawn out by lot, and the candidate elected by the State the name of which is upon the ball drawn out shall be the President. All of the remaining balls having upon them the name of that State shall then be withdrawn from the box; when, from those still remaining, another ball shall be immediately drawn out, in like manner as the first, and the candidate elected by the State the name of which is on that ball shall be the Vice President.

The following paragraph of the proposed amendment goes on to note that Congress shall pass laws governing the specifics of the process. It further states that "[t]he second and fourth sections of the second article of the constitution of the United States, and the twelfth article of the amendment thereto, shall become null and void on the taking effect of this amendment." It is unclear why Sections Two and Four are targeted for nullification, as they concerns the power of the president and process of impeachment--while Section One concerns the manner of presidential elections. Perhaps a secondary goal of the proposed amendment is to negate the powers of the executive.

One can see that the process isn't entirely random. A candidate who wins the vote in more populous states will end up with more balls in the drawing box, increasing the probability of that candidate's eventual selection. But because each state elects one of its own citizens for the eventual drawing, the ultimate drawing remains largely randomized--as even the most populous states will have a small minority of overall balls in the drawing box.

It is unclear what compelled Vinton to introduce such a proposal. His daughter, Madeline Vinton Dahlgren, wrote a glowing appraisal of his life and career in the Ohio History Journal, which briefly mentions the amendment, giving it a bland description of "regulating the mode of election of the President and the Vice President." But there's no other discussion of the proposal beyond this brief point. Still, Vinton had a fairly accomplished legal career, and had previously been elected to Congress for seven terms before returning to the practice of law. He eventually decided to re-enter politics, and introduced the proposal during this second phase of his political career. He was considered for a number of high-level posts, but declined them. Overall, this doesn't give off the impression of a politician who is an erratic weirdo, likely to fire off extreme legislation and proposed amendments.

A possible explanation is that the amendment was meant to highlight problems with the existing system of presidential elections. Abolishing or reforming the electoral college has long been a subject of proposed amendments (as one will soon learn by perusing the database), and this proposal of a random ball drawing may have been meant as a parody of the existing system. The problematic nature of the vice presidential selection process may also reflect dissatisfaction with the office of the vice president in general, as Vinton, a Whig, was enduring the presidency of John Tyler, who became president after William Henry Harrison died after only 31 days in office. Tyler ended up acting at odds with the Whig Party's agenda, leading to his eventual expulsion from the party in 1841. Vinton, a Whig, likely shared his party's dissatisfaction with their former vice presidential candidate (a possibility bolstered by the tone with which Dahlgren discusses Tyler in her article).

This approach of proposing an amendment as a satirical message wasn't unprecedented at the time. Indeed, only five days earlier, another Ohio Representative, Joshua Reed Giddings, had introduced a petition of Ohio citizens seeking an amendment to the Constitution to condition representation in the legislature by reference to "free inhabitants" only--a change that would reduce the political power of southern states with substantial populations of enslaved people. Many similar petitions and proposals were introduced in Congress around this time, but this one included a noteworthy addition, stating that if apportionment based on free inhabitants was "impracticable," then "the animal property of the free States be represented, as well as the slave property of the slave-holding States." A few moments of thought over how to interpret or implement this last provision reveals it to be a nightmare--does it refer to domesticated animals? Animals in general? What sort of animals? Cows? Chickens? Fish? As it turns out, none of this matters. This language does not appear to be a serious proposal to amend the Constitution to give animals political power--rather it's a political statement against the level of political representation enjoyed by states permitting slavery (albeit by means of drawing an unfortunate parallel between enslaved people and livestock).

Whether Vinton's proposed amendment was similarly meant as more of a political statement than a concrete policy proposal remains unclear. I'll continue digging, and may end up writing more on this and other strange amendment in the near future.

In the meantime, I strongly urge you to check out the proposed amendment database! It's fairly easy to navigate, and, as noted in the announcement quoted above, searches can be tailored in many ways, including by year, party, sponsor, and issue. Jill Lepore and David Kemper are owed a great deal of thanks for this accomplishment.

[UPDATE: August 19, 2023: I've added revisions accounting for the requirement that each state must vote for one of its own citizens, which adds a further level of chaos to the process, but solves a previously-flagged problem of the same person winning both the presidency and vice presidency.]

Historical Analysis and Doing Your Own Research

Gregory Ablavsky authored a critical review of Akhil Amar's book, The Words That Made Us. Ablavsky's review was recently published in the Michigan Law Review. Here's the abstract:

This essay reviews Akhil Amar's recent constitutional history of the early United States, The Words That Made Us. In this volume, Amar seeks to offer a "fresh story of America" that provides a "usable past." I argue that the book fails on both fronts. On the contrary, much of what Amar peddles is very old, ignoring generations’ worth of scholarship while parroting a centuries-old nationalist constitutional hagiography. In particular, he believes that constitutional history must be, at core, a referendum on the handful of powerful men dubbed the Founders. His effort to defend them and the Constitution from critics paints him into difficult corners, including endorsing some dubious exculpatory narratives around the exclusion of women, Black people, and Native nations in early America.

One way forward toward a more inclusive, more usable constitutional history, I argue, is in the concept of a "constitutional conversation" that Amar uses to frame his book. In Amar's hands, this conversation becomes a narrow reconstruction of debates among what he calls the "Big Six" Founders. But for a generation, historians and scholars, including many in law schools, have offered a broader vision of the constitutional conversation highlighting how non-elite people, including subordinated groups, accessed and shaped constitutional law. But the work of synthesizing these accounts in a broader constitutional history has only just begun. This work, I argue, will offer both a fuller account of the constitutional conversation and a more usable past for a nation increasingly recognizing that it has always been a diverse and fractious place.

At his Legal Theory Blog, Lawrence Solum has a brief response to Ablavsky's review that includes a lengthy quote from a primary source Ablavsky cites, and the following note:

This is just one passage from a rich and interesting pamphlet, link above in the abstract.

The review itself is worth reading, but the tone is sharp and the substantive analysis of the actual content of the voices that Amar does not take into account is frequently thin. So, read Warren herself. Then track down and some of the other primary sources.

Amar will surely write another book about this period. Wouldn't it be lovely if he were to take up the challenge and write about "The Words That Could Have Made Us?"

Solum is an originalist who argues (like most academic originalists) that the Constitution should be interpreted based on the original public meaning of the text, as understood when the provision at issue was enacted. Solum is also one of the few originalists who've taken implementing originalism seriously, and has written extensively on how interpreters may attempt to derive original meaning. 

Many originalists, however, are more cursory in how judges and attorneys can take on the difficult task of uncovering the meaning of constitutional text written hundreds of years ago, and how the general public (or a reasonable, well-educated reader--there are variations) may have understood the constitution's text. For them (and, even for Solum), the job of uncovering original meaning falls to academics, and courts may then rely on their work.

Take Solum, who does extensive work to set forth a method of "triangulating" results reached through analysis of founding-era documents, historical immersion, and corpus linguistics. And yet, this method is ultimately one for the scholars rather than the practitioners. He acknowledges that in-depth historical immersion is beyond the capacity of judges, attorneys, and clerks, leading him to write:

[I]t seems likely that implementation of the Method of Triangulation will involve the production of originalist scholarship in the academy with consumption of that scholarship by the courts. (p. 1681)

Similarly, in their book, Originalism and the Good Constitution, John McGinnis and Michael Rappaport write that in an ideal originalist world, scholars will take the lead in determining original meaning:

[I]n a world dominated by originalism, academics would work to create the knowledge that would improve the performance of originalist judges and reinforce their inclination to be consistently originalist. (p. 198)

Randy Barnett, another originalist, argues in his book, Restoring the Lost Constitution: The Presumption of Liberty, that the original public meaning of quite a few terms have been discerned through recent legal scholarship. As it turns out, much of that scholarship was written by Barnett himself!

(This last book, unfortunately, is out of my reach as it's buried in a box in advance of a cross-country move. But the pages I'm referencing are 116-117 (of the 2014 revised edition), and I strongly suspect that the footnotes to Barnett's own work reference his writing on the Necessary and Proper Clause and the Commerce Clause).

What does this diversion have to do with the Ablavsky review and Solum's response? According to Solum, readers ought to dig into the primary sources themselves, as Ablavsky's "substantive analysis" of those sources is "thin." To be sure, Solum notes that the review is worth reading. But urging readers to dig into the sources--to "do their own research," as it were--suggests that something is lacking.

If such a label of primary source thinness holds against a twenty-page book review, does the same standard apply to judicial opinions? And, if so, what does this say to originalists' claims that judges can rely on legal scholarship that parses out the original meaning of constitutional provisions? Those books and articles aren't primary sources themselves. So should judges, like the readers of Ablavsky's book review, do their own research into the primary sources as well? Or are we to expect a lower standard of investigatory rigor from judges (whose decisions affect not only the parties before them, but all others affected by the constitutional provision at issue) than from legal academics?

All of this illustrates the bind that would-be originalist judges are in when attempting to determine original public meaning. These judges don't have as much time as legal scholars--they have non-constitutional cases to resolve, and dockets to clear. Resources before them are thin: the parties' briefs will be far from unbiased, and the same will likely be true of many amicus briefs, many of which are ultimately drafted by attorneys seeking to tailor their historical arguments and evidence to the interests of the clients they represent. And yet, if we take these circumstances into account and give judges the go-ahead to rely on secondary sources (many of which are authored by legal scholars rather than historians and edited by non-expert law students), we expect a lower level of historical rigor from the courts that end up making the law. It seems strange to expect less of those whose determinations end up making the difference.

As Ablavsky's review demonstrates, even experienced, prestigious legal scholars may overlook large swathes of relevant historical evidence when writing about the Constitution. This risk is amplified for judges--whose primary resources for determining meaning are the goal-oriented submissions of interested parties. I argue (along with Al Hiland) at length elsewhere that this poses serious problems for originalist theory. Amar's book, Ablavsky's review and Solum's response are further illustrations of this issue.

Disturbing the Peace in Libraries: An Statutory Interpretation Puzzle

Most of my research in recent weeks has veered away from constitutional interpretation. This has been a welcome change of pace as theoretical questions of interpretation and the judicial shenanigans this work tends to uncover can grate on the soul after a while. But even when I'm researching intricacies of state criminal laws pertaining to libraries, these theoretical questions have a way of creeping up on me.

Take Massachusetts' law against disturbing the peace in libraries:

Whoever wilfully disturbs persons assembled in a public library, or a reading room connected therewith, by making a noise or in any other manner during the time when such library or reading room is open to the public shall be punished as provided in the preceding section. (emphasis added)

This law is Massachusetts General Laws, Chapter 272, Section 41. As of today, the preceding code section appears to be Section 40A, which provides:

Whoever gives, sells, delivers or has in his possession any alcoholic beverage, except for medicinal purposes, in any public school building, or on any premises used for public school purposes and under the charge of a school committee or other public board or officer, shall be punished by imprisonment for not more than thirty days or by a fine of not more than one hundred dollars, or both; provided, however, that a school committee of a city, town or district may authorize a public or nonprofit organization using a public school building with its permission during non school hours to possess and sell alcoholic beverages therein provided such nonprofit organization is properly licensed under the provisions of section fourteen of chapter one hundred and thirty-eight.

While Section 40A contains a punishment provision (imprisonment for 30 days and/or a $100 fine), it seems like a bit of an odd reference for Section 41's prohibition of disturbing the peace. Sure, selling or distributing alcohol in schools may constitute (or lead to) a disturbance of the peace, but the conduct at issue seems quite a bit different than the general disturbance covered in Section 41. Indeed, a better match appears to be the section preceding 40A--Section 40:

Whoever willfully interrupts or disturbs an assembly of people meeting for a lawful purpose shall be punished by imprisonment for not more than 1 month or by a fine of not more than $50; provided, however, that an elementary or secondary student shall not be adjudged a delinquent child for an alleged violation of this section for such conduct within school buildings or on school grounds or in the course of school-related events.

This section also includes a punishment provision--although it's slightly different from Section 40A, providing for punishment of up to a $50 fine (rather than $100) and imprisonment for one month.

The first instance of Chapter 272 of the General Laws that I could find is in the version of the General Laws that went into effect in 1921. That version of the General Laws includes both Section 40 and 41, but not Section 41A. It appears that Section 40 was enacted in 1849, and that Section 41 was enacted in 1885. Section 40A is nowhere to be found, as it wasn't enacted until 1962.

With all of this in mind, what is the meaning of "the preceding section" in Section 41? Do we read it from a present perspective and interpret it to mean what is now the preceding section--Section 40A? Or do we read it in the manner it would have been read in 1885 when Section 41 was enacted, at which point "the preceding section" seems to refer to to Section 40? 

Even if we decide that we must look to the original, 1885 meaning of the statute, the questions don't end there. How generally are we to interpret the original meaning of Section 41? A specific reading might be that "the preceding section" referred to a specific law--whatever was the preceding section at the time Section 41 was enacted. Under this approach, even if that law is later moved to a different chapter or repealed altogether, it would still inform the meaning of Section 41's penalty provision. An alternate, less specific reading would interpret "the preceding section" to refer to whatever section preceded Section 41 at the time of enactment. As it happened, that was Section 40 as it was written in 1855. The result the same as the previous, more specific reading, but the meaning employed is more abstract. 

Things change, however, if we get even more general with our reading of "the preceding section," and read it as expressing an original intent to reference whatever statute appears, at any time, immediately prior to section 41. This abstract reading would lead us back to the same result as a present-tense reading of the phrase, as a generalized statement abut whatever appears in the preceding section may change in meaning over time as that reference point shifts with the enactment of Section 40A. Or, to look at it a different way, this reading treats the enactment of Section 40A as also changing the meaning of Section 41. And now that we've laid out all these alternate formulation of the original meaning of Section 41, how are we to decide between these varying levels of generality?

To date, it does not appear that Massachusetts' courts have wrestled with these interpretive questions. It therefore remains unclear whether disturbing the peace in a library results in a fine of $50 or $100. Ever the optimist, I continue to hold out hope that the Supreme Court will take up a case that resolves this issue. 

Originalism and the Meaning of "Twenty Dollars": A Response to Heaney

I recently shared a draft of my forthcoming essay in the Creighton Law Review. Here's the abstract:

Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment’s reference to “twenty dollars” means—both as a matter of original meaning and for interpreters today.

While this appears to be an easy question, I demonstrate that rather than telling modern legal actors what “twenty dollars” means, originalism instead leads to a range of highly divergent possibilities. The original meaning of “twenty dollars”—applied today—may mean anywhere from twenty modern dollars, to a little under four hundred dollars, to just about seven thousand dollars. In doing so, I illustrate high-level debates between originalists and their critics, and how these debates tend to stray away from the needs of actual actors. Originalist appeals to construction and distinguishing semantic and legal meaning are cold comfort to the hapless attorney or judge who just wants to know what “twenty dollars” means. Moreover, if originalism cannot tell modern legal actors what “twenty dollars” means, there’s little hope that it will provide meaningful assistance in resolving questions over broader, loaded terms like “due process,” “cruel and unusual punishment,” “equal protection,” and other provisions that draw the bulk of scholarly attention and constitutional litigation.

The essay was initially inspired by Lawrence Solum's article, "Surprising Originalism," in which he discusses the original meaning of the Seventh Amendment's "twenty dollars" clause at some length. Solum focuses on the phrase as an example of "linguistic drift"--the idea that the meaning of words changes over time. Solum argues that while "twenty dollars" may now seem to refer to a twenty-dollar bill (or twenty one-dollar bills--or whatever combination of bills and coins you may like), the original meaning of the phrase actually refers to the Spanish silver dollar (or "piece of eight") which was widely treated as a dollar in the founding era.

I won't get into the weeds of my arguments here, but, in short, even if we agree with Solum about the original meaning of "dollar," it's unclear what the term means for those applying it today. Do we equate the Seventh Amendment's language with the amount of silver contained in the Spanish silver dollar? Do we equate it with how much a founding-era silver dollar would fetch at auction? Do we tie the meaning to Congress's then-present definition of dollar? Do we look to Spain's current currency as a reference point? Depending on how we answer the question, the meaning of "twenty dollars" ranges between twenty modern US dollars and approximately $7,000. 

Additionally, there's a question over what the "original sense" of "twenty dollars" is, and whether it should be what we use in applying the Seventh Amendment to modern cases. Christopher Green distinguishes the sense of terms from their references, arguing that we should focus on the original sense of the Constitution, rather than particular referents. One could argue that the original "sense" of "dollar" is what Congress decides the term means through legislation, while objects like silver dollars and paper money are referents--objects to which the sense refers. This calls Solum's original point into question, although perhaps it doesn't--depending on how general a view we take of the original sense.

(This is, admittedly, an oversimplification, so those interested or with questions should check out the essay itself. It's not that long, don't worry!)

James Heaney has posted a thoughtful and thorough response to the essay at his Substack, De Civitate. Heaney compares my critique of originalism to similar arguments by Michael Stokes Paulsen against nonoriginalism. As Heaney summarizes:

Paulsen takes the constitutional provision that says “the president must be at least thirty-five years old” and applies the prevailing non-originalist approach to it. This approach interprets the text according to its purpose and the broader spirit of the Constitution in light of changing modern conditions, not the literal words “thirty-five years.”

As a result, Paulsen argues (successfully, in my view) that a court following modern non-originalist constitutional theory could (perhaps must) hold that no one under the age of 60 can be president. . . . This was obviously absurd, so the paper demonstrated that the “living constitution” theory had serious flaws, and originalism was the way to go instead.

With this background, Heaney pushes back on my argument, arguing (again--in summary) that all methods of interpretation result in some uncertainty, and originalism's uncertainty over "twenty dollars" is no different. Heaney argues that originalism still does a fair amount of useful work even if it doesn't get us all the way to a final answer--we at least have a range of potential meanings that's narrow enough to work with. Heaney goes on to take a stab at answering the question of what "twenty dollars" means, drawing on original meaning and the Coinage Clause of Article I, section 8 to argue, in essence, that a dollar is whatever Congress defines it to be. To an extent, this reflects the original sense approach that I discuss above, and in the essay, but it also reminds me of the approach that John McGinnis and Michael Rappaport tend to advocate, which is to read the Constitution as consisting largely (if not entirely) of legal terms with technical meanings readily apparent to those in the founding era. In doing so, McGinnis and Rappaport argue, one can circumvent the unpredictable and malleable process of applying original meaning to present circumstances through "constitutional construction." Instead, the thick, technical original meaning is enough to do the job.

Heaney closes his discussion by expressing frustration with certain critiques of originalism that he deems the "Eric Segall school of constitutional thinking":

Their conclusion is always, always the same: “I don’t think originalism can honestly solve the problem I have posed, therefore originalism is a worthless fraud and originalists are just making up justifications for imposing their own policy preferences on the land.”

I do think originalism can honestly solve the problems these professors have posed, including the one in this paper. Originalism has been growing in response to academic critique for forty years, from the fragile beginnings of Edwin Meese, Robert Bork, and Original Intent back before I was born, to its present young adulthood as Originalist-Textualism. The method is not perfect, nor is it even finished growing, but originalism is trying to provide an interpretive methodology for judges that isn’t just “I’m an unelected judge and I think abortions are good so abortion is a constitutional right now” (or “I like babies so abortion is unconstitutional now”). When originalist theory falls short (and it has), originalist scholars try to find a path forward.

After all, what’s the alternative? The Eric Segall school accuses originalist judges of covertly imposing their own value judgments on the nation… but their theory of constitutional interpretation is that judges should openly impose their own value judgments! I try my hardest to protect my legal objectivity from being corrupted by my value judgments, which is admittedly hard, and the other side jeers at my side whenever we slip (as we all do)… but they tell me that it is impossible to be objective, that I should let my value judgments drive my legal theorizing!

Heaney does acknowledge that I do offer a potential alternative to originalism and highlights another paper I've written in which I propose a "present public meaning" approach to interpretation. He suggests that this approach may still lead to unusual or absurd results, focusing on Article IV, section 4, which states:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Heaney argues that a present public meaning approach could result in a reading that the Constitution requires the government of each state to be made up of officials associated with the Republican party. While some people (Heaney admits to being one of them) may be pleased with this outcome, Heaney argues that many would likely see this as an absurd result.

Throughout his essay, Heaney's discussion is thorough and approachable, and I think his answer regarding the meaning of twenty dollars is well-argued (although I'm not sure it is the correct answer as I remain unconvinced that there is one correct answer). I do have some qualms with some of his arguments, particularly his characterization of nonoriginalists and their critiques. To this end, I offer the following reactions to Heaney's discussion:

First, in his discussion of Paulsen's argument and his critique of the "Eric Segall school" of originalism critiques, Heaney falls into a common trap of assuming the undertheorization of nonoriginalist interpretive methods. This approach to nonoriginalism to portray it as  atextualist purposivism (as portrayed by Paulsen) or as little more than the notion that judges should decide cases based on their value judgments. When Heaney isn't using this characterization, he resorts to a near-parodical version of atextualist purposivism in summarizing Paulsen's discussion of nonoriginalist methods. 

But nonoriginalism isn't undertheorized, and many of its variations rely on the Constitution's text. Indeed, Heaney acknowledges this by highlighting the present public meaning approach that Frederick Schauer and I set forth. Other approaches include a common law approach to interpretation (most prominently set forth by David Strauss), which focuses more on constitutional case law that grows over time--providing constraint through stare decisis, but permitting gradual change as society, technology, and other relevant facts change. Even theories like Dworkin's moral readings approach, which lean into interpretations that further certain moral goals, also look to whether the readings fit with prior case law and the Constitution's text as a whole.

Defining nonoriginalism as little more than judging based on values isn't unique to Heaney's response. Many originalists, including those who, at times, acknowledge the sophistication and development of nonoriginalist theories, fall into this habit. In fact, I've seen so much of this that one of my current (though early-stage) projects is to develop a taxonomy of these living constitutionalist strawmen and how they fit into (and detract from) broader debates over originalism. Depending on how smoothly my move to Texas goes this summer (and assuming my research bears fruit), I expect to have a draft ready in sometime between two months and one year from now. If this range isn't all that helpful, think of how attorneys and judges trying to interpret the Seventh Amendment must feel.

Second, in Heaney's critique of Eric Segall's work, he seems to downplay the importance of transparency in constitutional interpretation. As I tend to see things (and as Segall sees things as well--based on what he says in about every other episode of his excellent podcast), value judgments are already doing most, if not all, of the significant work in decisions that are purportedly originalist or based on history and tradition. The difference between originalism and an explicitly value-based approach to interpretation is that the originalists hide behind a smokescreen of purportedly neutral historical analysis while reaching outcomes indistinguishable from those an explicitly value-based method would reach. I examine this contrast in the context of common good constitutionalism at a bit more length in an essay here.

Third, while Heaney argues that originalism still does meaningful work by narrowing a range of potential interpretations, this work still leaves much to be desired by legal actors who must arrive at a single outcome. Originalism is a textualist theory, and the text does some work. I'll readily admit that originalism tells us that "twenty dollars" does not mean something like "armadillo," "Belgium," or "courage." But this work isn't enough, as it still leaves the litigant or judge with a range of meanings extending from twenty dollars to $7,000--not the most helpful situation for interpreters. And it's unclear what work originalism does beyond ahistorical textualism other than exacerbating uncertainty. Finally, I suspect that the range of potential interpretations may become even harder to work with as the provisions at issue become more morally loaded and abstract.

Fourth, I appreciate that Heaney highlighted my article on present public meaning--the final version of which is finally published and posted to SSRN. Check it out!

Heaney argues that the present public meaning approach may lead to absurd results, highlighting the Article IV, Section 4 guarantee of "a Republican form of government." Heaney argues that this clause, under the present public meaning approach, could be read as requiring the federal government to ensure that the Republican party remains in control of governments at the state level. While I'm still thinking through this particular argument, I think that the argument about reading provisions in context--an argument I make in response to a similar potential argument involving the same clause's mention of "domestic Violence"--likely forecloses Heaney's hypothetical interpretation. 

Still, I have some initial thoughts on the issue. Looking at the clause from a modern perspective, interpreters will still likely acknowledge that there are multiple definitions of "Republican," including the political party, and a form of government that derives its power from the people--either directly or through the use of representatives. The question then becomes, which reading fits with the context of the clause as a whole and the document as a whole? From both perspectives, the latter interpretation--"Republican" as a representative government, rather than the political party--fits best. Taking the clause as a whole, the term "Republican" must be read in the context of the text immediately following, "form of government." This doesn't seem to fit with "Republican" as political party--as a party designation is not the same as a form of government. While Republican ideology may call for a certain form of government, the fact that the form of government and the party are two separate concepts strains a reading of "Republican form of government" to mean a government made up of Republicans. Heaney (or anyone used to fighting over contract language) may counter that "Republican" is capitalized, which lends strength to the "Republican Party" interpretation. But, again, context undermines this argument, as the clause as a whole (as well as much of the Constitution) includes frequent, sporadic capitalization--undermining the argument that capitalization carries special significance. Finally, in the context of the Constitution as a whole, which consists of foundational provisions for the operation of government without language explicitly acknowledging the existence of political parties, a "Republican Party" reading is out of place. All of this follows from an examination of context alone, rather than a recourse to original intent or original meaning.

Again, these are only my initial, half-formed thoughts on the "Republican" example. I'll likely develop this, and other examples, in what I hope will be an eventual paper on the notion of linguistic drift and why concerns about it are overblown. The paper is relatively high on my to-write list, but it may not materialize until a while from now (the living constitutionalism paper I highlighted earlier, for example, is higher on the priority list). So, based on my earlier estimate, a draft of this paper may be ready within two months and one week and a year and a half from now. Stay tuned!

I appreciate Heaney's discussion of my article, and I'll keep his points in mind during revisions, which are due in just over a week. Will I be able to adequately account for these critiques, account for editor comments, and do my own thorough review while grading? We'll see!

Professional Updates and Recent Scholarship

Blogging has been light over the past year because I've been getting accustomed to a career as a legal academic. A little over a year ago, I began searching for visiting positions at law schools around the country, and ended up with an offer from the University of Idaho College of Law. I've just wrapped up my spring semester of teaching Criminal Procedure (Adjudications) and First Amendment Law. I taught Constitutional Law II in the fall.

I've been used to keeping my professional work and my blogging separate because, up until relatively recently, I've wanted to avoid sharing information about my clients and cases. This desire to keep my professional work and blogging separate also was a large factor in what became my main research focuses: constitutional law and criminal law. For the most part, I did not practice much, if at all, in either area--and to the extent that there was any overlap, I avoided writing on topics that had the potential to veer into what I was doing at my day job.

Now, things will likely change. In the fall, I will be beginning a tenure-track position at St. Mary's University School of Law in San Antonio, Texas. I'll be teaching criminal law, criminal procedure, and some other courses that have yet to be determined (although I have some ideas and preferences that I'll hopefully be able to put into practice in the near future). I've had a fantastic experience at Idaho. The faculty here have been excellent mentors and have given me invaluable advice on teaching and navigating the academic job market. The students have been excellent--their opinions, insights, participation, and preparation have been consistently top-notch, and my departure is bittersweet as I won't have the opportunity to teach the students who will be continuing into their third year in the fall.

Blogging has been light because I've redirected a lot of my writing time to my scholarship. I've written a lot over the past year. I've shared a bit of what I've written, but only a small part of it. As always, my SSRN page is here and is fairly up to date. I've also been blogging less because I've been trying to write more short pieces as op-eds in order to reach a wider audience. As I work toward balancing my time teaching and writing, I'll be trying to blog more in the coming months.

Finally, a summary of my recent scholarly work. I've been pursuing something of a three-track research agenda: (1) constitutional law--particularly constitutional interpretation, originalism, and related issues; (2) criminal law--particularly odd laws and how certain criminal laws fail to achieve certain normative ideals like democratic legitimacy; and (3) odd law--odd or obscure laws that I find interesting and feel compelled to explore.

Recent work in each of these areas includes:

Constitutional Law

Multiple articles on the Court's last term and its turn to history and tradition, including an argument that the Court is turning away from original public meaning originalism, and a critique of the Court's history and tradition approach--specifically as applied in New York State Rifle & Pistol Association, Inc. v. Bruen.

An article on how debates over theories of constitutional interpretation must account for disingenuous and incompetent interpreters. I argue that certain theories may lend themselves to abuse or mistake more than others, and that one cannot simply dodge this issue by claiming that only the interpreter is to blame rather than the theory.

Some essays, including an illustration of problems with originalism in the context of interpreting the original meaning of "Twenty Dollars," an essay (coauthored with Al Hiland) on how the Court's history and tradition approach may be employed to overturn New York Times v. Sullivan, and an essay comparing originalism and common good constitutionalism under a transparency rubric.

Criminal Law

An article on criminal laws that appear to remain on the books despite strong indications that they are contrary to the will of a majority of those subject to the laws. I'll be following this article up soon with an article focusing on crimes appearing in state constitutions.

Odd Law

A deep dive into Idaho's tort of seduction, including the historical origins of the tort, constitutional challenges to the tort in other jurisdictions, and how Idaho's statute-based cause of action for seduction is different from other "heart-balm" actions like alienation of affection and criminal conversation.

There will be much more to come in all of these areas, so stay tuned!

"Business as Usual" For Originalism?

I've argued at length elsewhere that three of the highest-profile cases of the Supreme Court's October 2021 term marked a shift away from an originalist approach to constitutional interpretation. In Dobbs v. Jackson Women's Health Organization, New York State Rifle & Pistol Association, Inc. v. Bruen, and Kennedy v. Bremerton School District, the Court set forth a "history and tradition" approach to determining the scope of constitutional rights. In doing so, the Court elevated historical practices to a level at which these practices define the scope of constitutional rights. The Court pays lip service to the Constitution's text, but a close reading of these opinions reveals that the text plays no meaningful role in deciding the outcome. It is therefore a mistake to call these opinions originalist, as many have.

Enter Randy Barnett and Lawrence Solum and their recent draft article, "Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition." Barnett and Solum advance what Michael Ramsey at The Originalist Blog describes as "an important antidote to the flood of academic commentary proclaiming that the Court's recent cases aren't originalist."

From the article's abstract:

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.

These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

Barnett and Solum describe the use of history and tradition tests as "business as usual" for the Supreme Court, and argue that Dobbs, Bruen, and Kennedy "contain scant evidence of the emergence of a new approach to constitutional interpretation that would supplant either Public Meaning Originalism or Constitutional Pluralism." (p. 26). This got my attention, as I've concluded the opposite.

Walking through Barnett and Solum's analysis of Dobbs, Bruen, and Kennedy reveals the lengths one must go to in order to conclude that these cases are consistent with an originalist approach to constitutional interpretation. Despite Barnett and Solum's conclusions about the healthy state of originalism after the October 2021 term, their analysis of each case acknowledges that each opinion strays from typical originalist analysis in varying degrees. While they attempt to account for these deviations and present each case in as originalist a light as possible, they fail to demonstrate that the Court's recent decisions reflect an originalist methodology. And this is important--these were some of the biggest cases of the term, and in recent memory. If originalism isn't how the Court decides these important cases, this casts doubt on originalism's explanatory and predictive value.