Originalist justices need not be understood as deciding cases based on their political party.
The Fourteenth Amendment has had a dizzying 150-plus years in the hands of the U.S. Supreme Court, amounting to five distinct jurisprudential phases, each one lasting about a generation. Understanding how these generational phases relate to one another is critical to understanding the argument advanced in Randy Barnett and Evan Bernick’s The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (henceforth “Letter and Spirit”).
The Five Phases of the Fourteenth Amendment
The first generation of Fourteenth Amendment jurisprudence may be described as the “status quo phase,” because during this period the Supreme Court interpreted the Fourteenth Amendment’s language against the background of the original 1787 Constitution, thereby leaving the original Constitution’s guarantees of vertically and horizontally distributed powers largely intact.
Over the next generation, the Fourteenth Amendment became a bit more active, as the Supreme Court began using it to restrain state regulation in the sphere of property and contract rights. But this “economic rights phase” represented a relatively mild departure from the “status quo phase” because the Supreme Court’s protection of economic liberties was generally consonant with the Founding view of property rights.
The Fourteenth Amendment took a wild turn in the middle of the 20th century, however, as the Supreme Court incorporated the Bill of Rights, expanded the meaning of equal protection, and explored the penumbra of unenumerated social liberties—thereby transforming the Fourteenth Amendment into a vehicle for judicially managed social revolution. In this “civil rights phase,” the Fourteenth Amendment became a “Second Founding,” swallowing the 1787 Constitution. As a result, American constitutional law essentially became Fourteenth Amendment law, and American politics essentially became Fourteenth Amendment politics, so that just about every issue that sharply divides Americans became subject to federal judicial oversight.
This gave rise to the Fourteenth Amendment’s fourth phase, what may be described as the “ideology phase,” a period in which our political parties shaped platforms, formed coalitions, and sorted out voters along the lines created by the Court’s Fourteenth Amendment jurisprudence. In this period, the Democrats became the party of “judicial activism,” as liberal scholars (such as Ronald Dworkin, Bruce Ackerman, and John Hart Ely) and liberal justices (such as Justices Douglas, Brennan, and Marshall) defended the Supreme Court’s vigorous role under the Fourteenth Amendment in overseeing state regulation on such diverse matters as abortion, religion, race, and sexuality.
The Republicans, by contrast, became the party of “judicial restraint.” Accordingly, conservative scholars (such as Robert Bork and Raoul Berger) and conservative justices (such as Chief Justice Rehnquist and Justice Scalia) sought to uphold many of the “status quo phase” decisions (particularly the Slaughterhouse and Civil Rights Cases). As Chief Justice Rehnquist explained in U.S. v. Morrison, these decisions were critical to “prevent[ing] the Fourteenth Amendment from obliterating the Framers’ carefully crafted balance of power between the States and the National Government.”
The “ideology phase” came to an end in the early 21st century, and this is due in large part to the triumph of legal liberalism, which by this point had controlled the academy, Bar, and courts for two generations. As legal liberalism became embedded in our constitutional culture, Republicans and Democrats coalesced around using the federal judiciary as the primary vehicle of governmental power and using the Fourteenth Amendment as the primary weapon in the judicial arsenal. With the triumph of legal liberalism, conservative criticism of incorporation, judicial activism, and unenumerated rights waned.
This convergence also produced a divergence, however, as conservatives began embracing a robust Fourteenth Amendment that could be harnessed against state regulation that they opposed, such as state restrictions on business, guns, and religion. This divergence initiated our current era, what may be described as the “juristocracy phase.” In this fifth phase, neither side is interested in leaving their preferred issues to the political process outlined in the 1787 Constitution. In our juristocracy phase, the left-right axis in constitutional law no longer operates according to judicial activism/judicial restraint or a broad/narrow Fourteenth Amendment. Rather, in our current phase, legal debate is now structured as a war over how to wield the federal judiciary’s mighty Fourteenth Amendment sword. This has exacerbated our cultural polarization by juridicizing it.
Into this fray comes Barnett and Bernick’s Letter and Spirit, a book tailored to the juristocracy phase.
The Purge: A Rejection of Phases One and Four
The book begins by explaining what originalism is. In the course of doing so, the authors treat the key figures who developed originalism in the 1970s and 1980s (namely, Robert Bork and Raoul Berger) as mere “proto-originalists,” thus purging these figures from the originalist movement.
The authors defend their purge on two grounds. One, these early originalists relied on the “original intent” of the Framers, whereas most contemporary originalists rely on the “original public meaning” of the text. Two, originalism developed in the 1970s and 1980s as a “political project,” as opposed to a purely legal or intellectual one.
Both of these reasons are unpersuasive. A change in methodology does not warrant ousting a discipline’s architects. For example, the fact that philosophy now has two distinct branches (analytic and continental methods) does not make Plato and Aristotle proto-philosophers. Moreover, while there is certainly some truth to the claim that the Reagan administration’s embrace of originalism was part of a larger political project (as described above, the “ideology phase” was a response to the “civil rights phase”), Barnett and Bernick ignore the political motivations surrounding the move toward their preferred methodology.
According to the authors, Bork’s and Berger’s “proto-originalism” turned into real originalism, and this “political project” turned into a serious intellectual enterprise, only after “then-Circuit Court Judge Antonin Scalia … admonished the attorneys [in the Reagan Justice Department] to abandon their quest to discover the original intentions of the Framers and to pursue instead the original public meaning of the text.”
Barnett and Bernick neglect to tell us, however, that Scalia’s speech was itself borne from politics. And it was borne not from high-level constitutional politics but rather from low-level political careerism. Indeed, Scalia gave that speech to the Reagan Justice Department while he and Bork were vying to be President Reagan’s next Supreme Court nominee. As Bruce Murphy has observed, Scalia designed the speech to showcase to the Reagan administration “why his brand of judicial conservatism was better than that of Judge Bork.” President Reagan, incidentally, nominated Scalia just two days after that speech.
Barnett and Bernick also neglect to mention the political machinations that Scalia’s transition to “public meaning originalism” has enabled. The authors are right that the original-intent approach had an epistemological problem, in that it hinged on questionable judgments in discerning the intent of a collective body. But they overlook how public-meaning originalism solved this problem by introducing even more vexing questions about how language in the abstract can be predictably applied to changing particulars. The extent of this problem has become increasingly clear over the last two decades, with the rise of New Originalism, a family of approaches to public-meaning originalism.
Whereas the “proto-originalism” of the 1970s and 1980s limited scholars and judges to the legally relevant and publicly available information of a particular time period, New Originalism, with its focus on textual application as opposed to historically fixed intentions, liberated practitioners from this constraint. Freed from the past, New Originalists often incorporate contemporary sources of information in applying the Fourteenth Amendment to modern-day America. For example, in considering whether controversial cases like Brown and Obergefell were decided correctly, New Originalists often consider contemporary values regarding education and marriage.
New Originalist apologists are quick to point out that such expansive readings of the Fourteenth Amendment are not required by public-meaning originalism. But that misses the point—which is that the shift toward public-meaning originalism opened up these choices and thereby made these competing interpretations possible, rendering it impossible to say whose originalism is right.
This book is a good illustration of the mischief enabled by the shift to original public meaning. Because Barnett and Bernick are not constrained by the historically fixed intentions that concerned the “proto-originalists,” but are instead concerned with effectuating the capacious language of the Fourteenth Amendment in a contemporary landscape, they must find a way to turn that broad language into applicable legal norms for our culture.
Barnett and Bernick’s proposed method of effectuating that language in modern-day America is to look to the letter and the spirit of the Fourteenth Amendment. According to the authors, “the ‘letter’ of the Constitution consists of the meaning that it originally conveyed to the public.” By contrast, “the ‘spirit’ of the Constitution consists of the ends, purposes, goals, or objects that the Constitution was adopted to accomplish—its design functions.”
The authors make a strong case for why design considerations should factor into constitutional interpretation, but they understate the open-ended nature of such design-based interpretation. This is particularly problematic when we are talking about the Fourteenth Amendment’s spirit of equality, which can turn into an all-encompassing fog, blanketing the carefully articulated distribution of powers guaranteed in the letter of the 1787 Constitution.
This phenomenon is vividly on display in this book. While Barnett and Bernick profess to be engaging in a restorative effort, their argument is better understood as constructing a distinctly libertarian political project, one tailored to the juristocracy.
The Political Project: A Synthesis of Phases Two and Three
The book announces a radical goal: to “restore the original meaning of the Fourteenth Amendment.” The authors warn at the outset that the book “is going to upset some apple carts.” But the authors also assure the reader that their arguments will not produce much change to our current order: “we do not believe that adopting the original meaning of the Fourteenth Amendment as a whole would lead to results that differ radically from those that current doctrine would produce.” (Emphasis in original.)
As it turns out, the authors don’t end up toppling many carts; in fact, all the most valued apples are still edible—some have simply been transferred from one cart to another. The book’s radicalism, then, turns out not to be in restoring the social and political arrangements that undergird the adoption of the Fourteenth Amendment. The book’s radicalism, rather, lies in its projection of contemporary social and political arrangements on to the Fourteenth Amendment text. In other words, it is not radical for the change that it seeks to create in the present by restoring the past. It is radical in the way that it repositions legal doctrines to project the present on to the past.
Indeed, the book goes out of its way to tell us that the major progressive victories of the 20th century need not be altered. Their legal justifications simply need to be shifted.
Consider the following topics that consume a significant portion of the book. According to Barnett and Bernick, the Court was right to incorporate the Bill of Rights (i.e., to apply the Bill of Rights to the states) but it should have done this through the Fourteenth Amendment’s Privileges or Immunities Clause, not its Due Process Clause. Likewise, the Court was correct to adopt “reverse incorporation” (i.e., to apply the Fourteenth Amendment guarantees to the federal government) but the Court should have done this through the Fourteenth Amendment’s Citizenship Clause, not the Fifth Amendment.
Similarly, the Court was right to uphold Title II of the 1964 Civil Rights Act as a permissible exercise of federal power, but it should have done this under Section 5 of the Fourteenth Amendment, not the Commerce Clause, because “some nonstate actors may nevertheless properly be considered ‘public’ for purposes of barring unreasonable discrimination among citizens of the United States.” The Supreme Court also got Brown v. Board of Education right, but it should have decided the case under the Privileges or Immunities Clause, not the Equal Protection Clause, because “by the time Brown v. Board of Education was decided [nearly 100 years after the ratification of the Fourteenth Amendment], a right to attend a public school clearly qualified as a privilege of citizenship.” The Court’s gender discrimination jurisprudence is likewise correct, but these cases also should have been defended under the Privileges or Immunities Clause, not the Equal Protection Clause.
The reader may be shocked to learn that the Supreme Court produced the correct originalist outcome in almost all of the landmark cases of the 20th century. But somehow the justices kept getting the reasoning wrong. As though in some science fiction movie, the justices thought they were running away from the Constitution’s original meaning, but it turns out that they were actually running toward it.
Adding to this labyrinth, Barnett and Bernick consistently treat the figures who explicitly repudiated originalism for the sake of advancing legal liberalism as closer to the “letter and spirit” of the Fourteenth Amendment than the thinkers who repudiated liberalism for the sake of advancing originalism. Indeed, in Barnett’s and Bernick’s eyes, the nation’s most vigorous anti-originalist figures (people like Earl Warren, Thurgood Marshall, William Douglas, Ruth Bader Ginsburg, Reva Siegel, and Robin West) have been generally right in conveying the original public meaning of the Fourteenth Amendment, and conversely, the very people who sought to do originalism (people like Berger, Bork, and Scalia) kept getting it wrong. Although Barnett and Bernick express some sympathy with Scalia’s concern about unelected judges enforcing unenumerated rights, they assure the reader that this concern is now unwarranted, because the Fourteenth Amendment “is a mystery no more.”
The authors seem aware, however, that their alliance with liberal anti-originalists is a fragile one, requiring careful avoidance of more recent controversies. And that may explain why the authors spend most of the book defending 20th-century positions that are now “off the table,” (i.e., controversies that legal liberalism has rendered beyond scholarly discussion) but they conveniently ignore many of the 21st-century issues that are still “on the table” (i.e., controversies that scholars still debate).
Perhaps most illustrative of this phenomenon is that the authors tell us that they support some version of substantive due process, but in a nearly 500-page book on the Fourteenth Amendment, they somehow manage to avoid discussing abortion, the most important substantive due process subject of all time. Likewise, the authors briefly discuss obscenity and sodomy regulations, but they do not discuss the far more relevant and controversial questions of same-sex marriage and transgender rights.
Similarly, although the authors devote a substantial portion of their book to discussing how racial issues relate to the Fourteenth Amendment, they artfully elide the racial issues of the last two generations, such as state-sponsored affirmative action and related racial grievance programs. In a sense, the book’s engagement with racial issues is strikingly contemporary, invoking recent changes in social values and circumstances to update constitutional meaning with regard to race relations. The authors even adopt the style of “woke liberalism,” referring to “Blacks” in uppercase and to “whites” in mere lowercase. But the book’s discussion of race is at the same time anachronistic, analyzing the subject of race through the lens of a society run by the Ku Klux Klan and Jim Crow, not the society we currently inhabit, the one run by diversicrats and Black Lives Matter. In other words, Barnett and Bernick use 21st-century social values but 19th-century power structures to discern how the Fourteenth Amendment applies to race relations.
There is one area, however, in which Barnett and Bernick are willing to upset their liberal allies. The authors explain that, although most of the Supreme Court’s jurisprudence would be preserved under their originalist Fourteenth Amendment, two doctrinal areas would have to be changed. One, under their view of the Fourteenth Amendment, courts must provide more “protection of economic liberties from arbitrary regulations by state legislatures.” In other words, Lochner was decided correctly. Two, courts must recognize “an affirmative duty on the part of states to provide protection against violence by ‘private’ actors.” In other words, the Civil Rights Cases, DeShaney, and Morrison were decided incorrectly, and Heart of Atlanta and McClung were decided correctly but on erroneous grounds (they should have been upheld on the basis of the Fourteenth Amendment, not the Commerce Clause).
Barnett and Bernick treat this as a political compromise “the former of these departures would be welcome by some on the political Right; the latter would be welcome by some on the political Left.” But this framing belies the way these positions align in our legal culture. The former doctrinal departure would be embraced not by conservatives but by libertarians. And the latter doctrinal departure would be embraced by just about everyone on the political left, as it would secure the judicially enforceable positive rights that legal liberals have long condemned our Constitution for failing to provide. The “compromise” provided in this book would therefore provide some significant wins for libertarians, lots of significant wins for liberals, and absolutely no significant wins for conservatives.
The political project of Letter and Spirit thus boils down to a synthesis of the economic liberty and civil rights phases. This is, coincidentally, the very political synthesis that libertarian legal activists have been angling for since Clint Bolick developed his libertarian civil rights movement in the late 1980s. Letter and Spirit reads more like an originalist defense of Bolick’s legal strategy than an impartial analysis of the original meaning of the Fourteenth Amendment.
None of this is to suggest that Barnett and Bernick do not make thoughtful and provocative arguments. But it is indisputably a political project nonetheless—a political project imbued with substantive choices, and choices that almost always veer toward the cultural left. These choices are apparent in the topics the authors choose to discuss, the historical arguments they choose to emphasize, and the legal doctrines they choose to adopt.
An Original Meaning, Not The Original Meaning
By the end of the book, the reader may feel like he has experienced an extended shell game. The skilled practitioners have expertly distracted our attention while rapidly moving the cups so that we have lost track of where the ball is. When they finally do stop the cups for the big unveiling, we are initially impressed by the trick. We thought the ball was here and not there! It may take us a moment to realize that nothing has actually changed—we still have three cups and a ball.
For those content with the current political and legal order, perhaps it will be comforting that this book shows that there is an originalist argument that can be advanced to secure it. But for those not content with the way things currently are—and that seems to include the majority of Americans, certainly the vast majority of those on the right—this book should provide comfort in an entirely different way. This book may be an originalist account of the Fourteenth Amendment, but it is not the original meaning of the Fourteenth Amendment. Perhaps this will inspire a more historically rooted account of the Fourteenth Amendment, one that will clear the fog and allow the original Constitution to shine again.