Counterpublic Originalism and the Exclusionary Critique

69 Pages Posted: 2 Jul 2015 Last revised: 13 Jun 2016

See all articles by James W. Fox

James W. Fox

Stetson University - College of Law

Date Written: June 30, 2015


This Article proposes a new form of originalism — Counterpublic Originalism — as a method to better incorporate excluded communities into the narratives of constitutional history. Looking at a broad range of originalists, from conservative (McGinnis & Rappaport, Calabresi & Rickerts) to progressive (Amar, Balkin), I find that each wrongly assumes some version of a single “public” at the time of ratification, a “public” comprised of the very elites who were benefiting from the exclusionary practices. Focusing on the Reconstruction period, I argue that there was no definitive “public” but instead a series of partial publics, some (white men) who were legally and socially privileged and dominant, and others (feminists, African-Americans) who operated as dissenting communities that developed their own normative discourse and challenged dominant views and interests. I then argue that these dissenting communities, or counterpublics, provide important sources of public discourse and activity that spoke to precisely the questions and ideas raised in constitutional amendments, and particularly in the Reconstruction Amendments. In the process I also challenge the Supreme Court’s and scholarly treatment of African-American materials on the meaning of the Second Amendment during Reconstruction.

Keywords: originalism, counterpublic, Reconstruction, African American history, fourteenth amendment, public sphere theory

Suggested Citation

Fox, James W., Counterpublic Originalism and the Exclusionary Critique (June 30, 2015). Alabama Law Review, Vol. 67, 2016, Stetson University College of Law Research Paper No. 2016-2, Available at SSRN:

James W. Fox (Contact Author)

Stetson University - College of Law ( email )

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727-562-7890 (Phone)

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