Originalism and Original Exclusions
Mark S. Stein
affiliation not provided to SSRN
October 14, 2009
Kentucky Law Journal, Forthcoming
In this article, I consider how the interpretation of today’s Constitution should be affected by the antebellum Constitution’s accommodation with slavery and by the limitation of the franchise, at the time of the antebellum Constitution, to a small minority of the adult population. I refer to these defects in the antebellum Constitution and the political system that produced it as “original exclusions.”
In view of these original exclusions, the mere ratification of provisions of the antebellum Constitution cannot imbue them with sufficient moral legitimacy to override contemporary statutes. Thus, a justification for originalism based on notions of popular sovereignty must fail. The original exclusions also straightforwardly defeat the argument that originalism achieves desirable results because the Constitution was produced under supermajoritarian voting rules. In fact, as the Constitution is so hard to amend, and as there has been moral progress since the time of the antebellum Constitution, it makes sense to assume that the original meaning of some remaining antebellum provisions is morally retrograde and undesirable.
The progressive elimination of the original exclusions was accomplished, in part, through nonoriginalist means and has increased the moral legitimacy of the Constitution. As the moral legitimacy of the Constitution derives, in part, from past nonoriginalism, future nonoriginalism should require less justification.
There are some cases in which the text or original meaning of a constitutional provision was plausibly affected by an original exclusion. There are also cases in which application of a constitutional provision specially affects a previously-excluded class. If one or both of these conditions apply, the originalist position becomes even weaker.
Most fundamentally, originalism is objectionable because it seeks to fix the meaning of antebellum provisions in the legal and political culture that produced the original exclusions.
Number of Pages in PDF File: 72
Date posted: October 15, 2009 ; Last revised: October 26, 2009