Original intent for liberals.

The law, lawyers, and the court.
Sept. 21 2005 12:36 PM

Rethinking Originalism

Original intent for liberals (and for conservatives and moderates, too).

(Continued from Page 1)

Another key originalist point that is often overlooked derives from the 15th Amendment, which was ratified two years after the 14th and reflected a far more robust vision of black rights, including equal-suffrage rules. This amendment was intrinsically integrationist, envisioning a world in which blacks and whites would work side by side at the ballot box, in the jury box, and in legislatures across the country. As the first Justice Harlan understood in Plessy (though many modern scholars seemed to have missed the point altogether), the enactment history of the 15th Amendment thus powerfully reinforced various 14th Amendment arguments against Jim Crow.

Yes, it's true that on today's court the two leading originalists are both conservative, but perhaps the court's most influential originalist in history was the great Hugo Black—a liberal lion and indeed the driving force behind the Warren Court. (For more on Black's role in leading the Warren Court to apply the Bill of Rights against states, protect the rights of criminal defendants—especially the indigent—champion the rights of political dissenters, and enforce racial and voting equality principles, click here.) It's also worth remembering that the most towering originalist scholar of the 1970s was also a professed liberal, John Hart Ely.

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In short, there are many reasons to question the idea that modern liberals should abandon constitutional history rather than claim it as their own. This short posting is not the place to present all the historical evidence that some modern anti-originalists are overlooking—I've tried to do that elsewhere (in an article in the Harvard Law Review published in 2000, and, more comprehensively, in my new book being published this month). But I hope I've said enough here to convince thoughtful anti-originalists to take a second look at the Constitution's first principles.

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