This past weekend’s edition of the Wall Street Journal has an interesting but flawed article on the Constitutional Accountability Center’s project to promote a “[s]o-called progressive originalism” that focuses heavily on the Reconstruction Era Amendments—the 13th, 14th, and 15th Amendments—“to cement precedents under threat from the right and undergird the recognition of new rights” favored by liberals. As a matter of constitutional interpretation, I’m all for originalism, properly applied, even when it yields (as it very often will) results that don’t comport with my policy preferences, and I’m pleased to see liberals like Doug Kendall, CAC’s head, who recognize the legitimacy of originalism and who are ready to engage on originalist terrain. That said, I see two basic flaws in the article (besides the title, which should be “Rethinking Original Meaning” rather than “Rethinking Original Intent”).
First, the article mischaracterizes Justice Scalia’s originalism as “focus[ing] on the initial 18th-century constitutional text to find narrow individual rights and limited federal power to protect them.” The reader might mistakenly infer from this passage that Scalia’s originalism somehow doesn’t take into account the Reconstruction Era Amendments, when the real dispute between Scalia and “progressive” originalists is over how those amendments are to be construed. The passage also unfairly charges (or at least insinuates) that Scalia has adopted originalism in order to “find narrow individual rights and limited federal power to protect them.” The reader wouldn’t suspect that Scalia has followed his originalist methodology to reach liberal results (e.g., on the scope of the Confrontation Clause), or that he roots his methodology in the very nature of legal text.
Second, the article unquestioningly accepts the CAC’s account of the Reconstruction Era Amendments. We’re told, in particular, that the framers of those amendments “saw their amendments as paving the way for new rights as society develops”—as though the amendments themselves are vessels of living-constitutionalism—but the single quotation offered in support of that remarkable proposition would seem to say nothing of the sort.