Embracing originalism is not the only response that progressives might make to conservative nonoriginalism, but there are reasons to think they might.
Editor’s Note: This is the authors’ reply to Law & Liberty’s symposium, “The Contested Legacy of the Fourteenth Amendment,” which reviewed their book, The Original Meaning of the Fourteenth Amendment.
As originalists, we are often asked how judges and other constitutional actors are reliably able to identify the original meaning of constitutional text. We typically respond that, at least to some extent, there should be a division of labor between judges who must expeditiously decide the cases before them, and scholars who can assess original meaning in a less contentious context. We also advise consumers of any given piece of originalist scholarship, whether judges or others, to reserve judgment on its conclusions—no matter how appealing its conclusions may be—until it can be subject to peer review. In this recommendation, we include our own scholarship.
By “peer review” we simply mean criticism by other scholars who are experts on the particular clauses or provisions being interpreted. Readers don’t know what they don’t know and can profit from the clash of expert opinion. Then, like judges in our adversary system, readers can decide for themselves who has the stronger argument based on the evidence presented. This is how we ourselves reach conclusions about provisions that we have not personally investigated as scholars.
Neither of us knew that Law & Liberty would dedicate not just a single review but an entire symposium to our new book, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit. To say that we were pleasantly surprised would be an understatement. Both of us are avid readers of the site, and we have severally contributed to it more than once. We appreciate its commentary on matters of constitutional law and politics, even when—sometimes especially when—we disagree with it.
We are grateful to the all-star team of symposium participants who have undertaken the task: Christopher Green, Ilan Wurman, Julia Mahoney, and Jesse Merriam. Because both Chris Green and Ilan Wurman are themselves Fourteenth Amendment scholars, whose competing theories we critique in our book, this symposium begins the vital adversarial process of providing the essential peer review that every consumer of originalist scholarship requires. Because such debates involve the presentation of evidence, in this response we will spend most of our time responding to them. Because they have usefully gotten into the weeds, we must follow them there. We will, however, also address Mahoney’s cogent and forthright challenge to our framing of our project and discuss Merriam’s political science take on our project.
Wurman: Privileges or Immunities are More Than Comity, More Than Equality
In his review, Ilan Wurman reprises the antidiscrimination-only account of the Privileges or Immunities Clause that he sets forth in his own fine book, The Second Founding. Although he promises a longer critique at a later date, we think a few words in response to his framing of his argument and of the evidence he presents are appropriate at this juncture.
First, Wurman acknowledges that Republicans came to understand the Privileges AND Immunities Clause of Article IV, Section 2—on which we all agree that the Privileges or Immunities Clause of the Fourteenth Amendment was based—in a legally unorthodox way. We and Wurman concur that what was originally regarded as a mere “Comity Clause” that protected citizens of one state from parochial discrimination when they travelled to another became seen as doing more than that.
We disagree with Wurman concerning how much more. He thinks the Privileges or Immunities Clause of the Fourteenth Amendment solely prohibits states from discriminating among their own citizens in the allocation and regulation of rights provided by state law. We agree it performs this function but maintain that the Clause requires states to also secure and protect a set of rights deemed fundamental to citizenship by a stable national consensus. Still, Wurman’s acknowledgment of legal unorthodoxy embedded in the Fourteenth Amendment’s text is significant, given his claim in his book that the Fourteenth Amendment was written “in the language of the law.”
When he visited one of our seminars to discuss his book, Wurman averred that, when the legal meaning of the Constitution conflicts with its public meaning, the public meaning controls. If he continues to maintain this view, we are glad to have him as a methodological ally. If, however, the public meaning of “privileges and immunities” at the time the Fourteenth Amendment was ratified had diverged from the original and legal meaning of that phrase in Article IV, then that public meaning supersedes the prior legal meaning when interpreting the language added in 1868.
Turning to evidence of original meaning, Wurman highlights two items that he takes to support his antidiscrimination-only account. One is a statement by a leading Fourteenth Amendment framer, Ohio Representative John Bingham, in a 1862 speech opposing a proposed Oregon Constitution that prohibited free Black people from migrating to the state. In that speech—which we highlight in our book—Bingham spoke of “The equality of all to the right to live; to the right to know; to argue and to utter, according to conscience; to work and enjoy the product of their toil, is the rock on which [the] Constitution rests.”
Wurman interprets Bingham to object only to “the interpolation into [the Constitution] of any word of caste, such as white, or black, male or female.” On Wurman’s reading, Bingham would have no objection to a categorical state ban on the freedom of speech or to acquire and possess property, so long as every citizen was left equally unfree. Equality of rights, in Wurman’s reading of Bingham, is consistent with everyone being equally prohibited by states from enjoying them.
This is an implausible reading of Bingham’s speech. Bingham goes on to state that “all men, before the law, are equal in respect of those rights of person which God gives and no man or state may rightfully take away.” (emphasis added.) If Wurman is correct, states can rightfully take away the very rights that Bingham is denying that they have a right to take away. That can’t be right.
Further, suppose that Bingham is here speaking only of antidiscrimination. It does not follow that Bingham considered antidiscrimination to be the only way that the privileges of citizenship can be “abridged”—any more than that he considered the specific rights he listed to be the only rights protected against discrimination. We look forward to Wurman’s presentation of more, and more persuasive, evidence concerning Bingham’s exclusive commitment to antidiscrimination.
Wurman’s second piece of evidence is John Norton Pomeroy’s roughly contemporaneous-with-ratification commentary on the Fourteenth Amendment, another source we discuss. It is still less helpful to Wurman’s case. On Wurman’s account, we “claim” that Pomeroy “interpreted Section 1 as overturning Barron v. Baltimore and applying at least the personal rights enumerated in the first eight amendments to the states.” Wurman says that we are wrong and reads Pomeroy along antidiscrimination-only lines.
We are surprised that Wurman questions our “claim.” Here is what Pomeroy wrote about Barron’s “construction of the Constitution”:
So far … as the states do not infringe upon express provisions of the Constitution specially addressed to them, or upon those implied in the whole scope of that instrument and in the grants of power to the general government, they may regulate their own internal economy as seems best to themselves. The United States are forbidden either by the legislative, executive, or judicial departments, to deprive a person of any of the immunities and privileges guarded by the Bill of Rights. The states may, in respect to their own inhabitants, if consistent with their own organic laws, infringe upon them all. (emphasis added.)
Pomeroy goes on to provide examples of how Barron’s construction was “repeatedly confirmed by the judgments of state tribunals.” These include a New York case in which “a statute of that state, providing for the summary trial and conviction of a person charged with petty larceny, not being opposed to the local constitution, was not controlled by any of the amendments to the United States Constitution.”
Pomeroy does not here adopt an “anti-discrimination only” reading of the Bill of Rights as applied to the federal government. He doesn’t mention discrimination at all in discussing this case. And yet, after summarizing this and other cases that similarly do not implicate discrimination, Pomeory laments that “the rule [of Barron] is certainly an unfortunate one.” In other words, he would have had fundamental rights enumerated in the Bill of Rights apply to the states, presumably in the same manner as it then applied to the federal government. These rights would be protected both against discrimination and wholesale deprivation.
It is true that Pomeroy discusses and condemns legislation that discriminates against particular classes of citizens. Such discrimination was a widespread concern. But Pomeroy’s examples illustrate that his concerns were not limited to ensuring equality in protection of the rights guaranteed under state constitutions and state law. By omitting them, Wurman suggests an exclusive concern with discrimination on Pomeory’s part that is contextually unwarranted.
There is more to be said against Wurman’s case against our fundamental-rights reading, and presumably more to be said for it. For now, we are content to “rest on our briefs.”
Green: The Morality of “Due Process of Law;” the Civil-Political Distinction; and the Irreducibility of Fundamental Rights
After some initial, very generous remarks about our book’s virtues, Christopher Green challenges our account of the Fourteenth Amendment’s Due Process of Law Clause. He gets off to a shaky start by stating that we adopt a “moralized” reading of “law” in “due process of law.” “Moralized” is his term, not ours, and it invites confusion.
We read “due process of law” to include limitations on arbitrary legislative action that deprives people of life, liberty, or property without a permissible legislative purpose. We do not define arbitrary as “immoral because it does not track some conception of moral reality.” To be sure, constitutional limits on the legislative power are informed by moral premises. But as Green has written, it does not follow that interpreting and applying those limits require direct recourse to moral reality. Sometimes—often—moral goods are best captured indirectly.
Consider the right to trial by jury. That right—indeed, the adversarial system more generally—has been defended on the ground that it promotes fairness, truth, and justice in adjudication. But the adversarial system does not empower judges or juries to simply “do what seems fair, true, and just.” Allowing that would likely lead to less fairness, truth, and justice than tried-and-true rules and procedures. By zeroing in on the little word “law” and attributing to us the claim that “due process of law” requires open-ended moral reasoning, Green fires upon a hill that we are not defending.
In our book, we criticize Green’s claim that “duly convicted” in the Thirteenth Amendment is synonymous with “due process of law” in the Fourteenth Amendment; and his claim that, because “duly convicted” does not bar arbitrary legislation, neither does “due process of law.” Green calls our criticism “fair,” but now offers three pieces of additional evidence against our thesis—with the promise of more evidence to come.
First, Green writes that “the Republican-Party-beloved Northwest Ordinance, Missouri Compromise, and Wilmot Proviso all required ‘lawfully claimed’ fugitives from racially-based enslavement to be “lawfully reclaimed.” Because Republicans abhorred slavery and regarded it as a paradigmatic example of arbitrary power, Green infers that “lawfully” in the Northwest Ordinance, Missouri Compromise, and Wilmot Proviso must not prohibit arbitrary deprivations of life, liberty, or property. Second, Green points out that the Privileges or Immunities Clause of the Fourteenth Amendment prohibits states from making or enforcing “any law” that abridges the privileges or immunities of U.S. citizens. He takes this language to suggest that a statute that is arbitrary in the sense of violating a fundamental right of citizenship is still a “law.”
Green’s reading of these two pieces of evidence seems plausible to us, but it doesn’t undermine our position. The confusion arises because, as in common discourse, the Constitution uses the same word “law” in different senses in different places. Using the word “law”’ to refer to a validly-enacted statute is not identical to the “due process of law.”
Leading Republicans took the view that a “law” authorizing slavery in the federal territories was everywhere and always unconstitutional because it would be incompatible with due process of law guaranteed by the Fifth Amendment. And we assume that Green would agree with us that a legislative act which Article I identifies as “a law” because it passes both Houses and is signed by the President is not necessarily consistent with due process “of law.” For example, a congressional enactment or “law” providing for criminal punishment without trial would deprive a person of due process of law on Green’s account as well as ours. By the same token, the Northwest Ordinance, the Missouri Compromise, the Wilmot Proviso, or the Constitution itself might consider an enactment to be “a law” or “lawful” for some purposes and yet not consistent with “due process of law.”
A third piece of evidence highlighted by Green is Joseph Story’s description of due process of law as “the right of trial according to the process and proceedings of the common law.” This description was repeated by a great many congressmen during an enormously long discussion of the Second Confiscation Act in 1862. Green points out that congressmen “explicitly distinguished disproportionate confiscation from confiscation without due process of law.” So they did. But Green overstates the significance of his evidence and its relevance to our thesis.
Nowhere in our book do we claim legislation that is directed at a constitutionally proper end can be invalidated merely because it is too harsh or inefficient or otherwise a bad idea or policy. Poor means-ends fit may be evidence of a constitutionally improper goal. But in and of itself, it is not arbitrary. We endorse a framework—rationality review—for legislation that accommodates a great deal of legislation that is bad policy. (Traditional rationality review is not the same as modern “rational-basis scrutiny,” which traded on the traditional label while depriving it of all critical bite.) Our recommended approach does not accommodate what Cass Sunstein famously dubbed “naked preferences” that are not directed at any constitutional proper end. For example, laws enacted to satisfy the financial interests of favored industry groups under the guise of protecting public health or safety.
Of course, distinguishing naked preferences or bad faith legislation from bad policy is a difficult enterprise. But Green does not suggest that it is impossible. Indeed, he argues that the rationality review is too deferential a means of policing naked preferences. He would adopt a more stringent test, albeit under the Privileges or Immunities Clause rather than the Due Process of Law Clause. For all of its illuminating content, the debate over the Second Confiscation Act simply does not address naked preferences. To charge that legislation is unduly harsh or cruel a means to a constitutionally proper wartime end is not to say that it is actually aimed at some other impermissible end altogether.
Green’s discussion of our claims about the constitutional status of voting rights also suffers from an apparent misunderstanding. He notes our agreement that a distinction between civil and political rights is built into the original meaning of the Privileges or Immunities Clause. He recognizes that, on our account, the Clause protects only civil rights—specifically, rights that have been deemed fundamental to citizenship because of their protection of natural rights and their promotion of civic equality between citizens. But Green then says that we “argue that changes like the Fifteenth and especially the Nineteenth Amendments blurred the distinction between political and civil rights, because voting came to be seen as a fundamental aspect of being a citizen.”
We do argue that voting came to be understood as a fundamental right of citizenship and ultimately became a Fourteenth-Amendment-protected privilege of citizenship in virtue of being thus deemed fundamental. But that is not because of any blurring of distinctions between civil and political rights. It is because arguments concerning the centrality of voting rights to the protection of natural rights and civic equality gained political traction during the course of Reconstruction and eventually became the object of a stable national consensus. Black Americans had long insisted that voting rights were no less critical to natural rights and civic equality than other rights widely acknowledged to be civil rights. But the rest of the nation was not there in 1868.
Green maintains that Republicans knew all along how important voting rights were but in 1868 “just were not willing yet to constitutionalize this principle.” Indeed, Republicans expressly allowed southern states in Section 2 of the Fourteenth to disenfranchise Black citizens, so long as they were willing to pay the price of reduced representation in Congress. We take Republican unwillingness to constitutionalize the principle as illustrative of their impoverished understanding of the importance of the ballot. This was certainly how Frederick Douglass interpreted it. He knew the public meaning of the Privileges or Immunities Clause of the Fourteenth Amendment did not protect the right of suffrage and thus campaigned against its ratification.
Nothing that Green has written encourages us to budge from our claim that blood-drenched assaults on Black people and their white allies during Reconstruction illuminated the importance of the ballot to a wide swath of Americans—but especially to Republicans. Black Americans knew all along that the ballot provided more than (borrowing from Bouvier’s dictionary definition of political rights) “establishment, support, or management of government.” They viewed the franchise as an essential means of self-defense of life and limb. So, too, eventually did the Republican Party when it proposed and ratified the Fifteenth Amendment. The same development occurred with the right of Black people to serve on juries, which was often described as “political” before 1868, but which later came to be deemed inseparable from the right of a defendant to impartial adjudication.
Green charges us with “collaps[ing] … the civil-political distinction based on changed or better-recognized facts.” To this we respond that the collapse of Reconstruction illustrates the costs of recognizing those facts too late. We do not deny the civil-political distinction. Instead we claim that some rights deemed “political” rights at Time A came to be viewed as “civil” rights at Time B because their relationship to the concept of Republican citizenship was reassessed in light of practical experience. The criteria for inclusion in the categories of civil and political rights did not change; what rights satisfied those criteria did.
Finally, Green agrees with us that the Privileges or Immunities Clause protects fundamental rights of citizenship —whether specifically listed in the Constitution or not—that are the object of a stable national consensus. But Green argues that we are wrong to deny that rights deemed fundamental can be “demoted” if that stable national consensus disappears. We find these arguments unpersuasive.
First, Green offers not one example of any Republican who addressed the privileges and immunities of citizenship and who so much as hinted that rights deemed fundamental could be thus demoted. By contrast, Republicans spoke of rights to trial by jury, freedom of speech, and the free exercise of religion as non-negotiable and in need of permanent security against potentially hostile future Congresses.
Green’s failure to acknowledge this contrast is striking, and it is exacerbated by the mechanical problems with how he contends a fundamental privilege of citizenship gets demoted. For instance, Green says that “[t]he departure of a small number of states from the mainstream of American civil rights represents unjustified interstate inequality among citizens of the United States in different states, and like unjustified intrastate disparity between such citizens in the same state, it unconstitutionally abridges those citizens’ privileges and immunities.” So, when a small number of states defect, it does not demote the right. But he says that “If a great number of states simultaneously change how they treat certain civil rights, they are changing the American consensus rather than violating it.”
However, unless the “great number” of states departs from the mainstream all at once—not with Idaho in the lead followed by Maine six months later and then Illinois, etc.—each state departure “represents an unjustified interstate inequality” when it is enacted. On our account, there is one clearly proper mechanism for demoting a previously recognized fundamental right of citizenship: the amendment process by which a supermajority of states can change the Constitution under the rules of Article V. Such an amendment would represent the same type of stable national consensus that was manifested by the adoption of the Fifteenth and Nineteenth Amendments.
Mahoney: Do We Sincerely Want to Be Radicals?
The remaining two essays explore our project’s politics. Julia Mahoney argues that our conclusion understates what we have shown in the preceding pages about the radicalism of the Fourteenth Amendment’s original meaning and purposes; Jesse Merriam speculates about our motivations in offering an account of original meaning that he finds congenial to libertarians and liberals but not to conservatives. We spend less space here on Professor Mahoney’s review because we consider it largely to be a friendly amendment.
Mahoney argues that, even as we identify some truly radical changes that our account of original meaning would require, we do not draw enough attention to their radicalism and do not adequately justify our call to action. She says that we “undersell the importance of [our] own work” by justifying our proposed changes in terms of sociological and moral legitimacy—specifically, by arguing that following the original Fourteenth Amendment will yield constitutional doctrine that is more likely to be perceived as and actually be just. She writes that “These concerns about legitimacy, while well-founded, are inescapably speculative, and as such are weak justifications for a major upheaval of the constitutional landscape.”
We don’t think moral legitimacy is speculative. We are moral realists, and we regard the original meaning of the Fourteenth Amendment that was framed and ratified in 1868 as a moral improvement upon the doctrine that has been developed in its name by the Supreme Court. A full defense of either moral realism or the moral advantages of the original Fourteenth Amendment over Fourteenth Amendment doctrine would require another book. But we are forthright about our belief that the original Fourteenth Amendment is morally better than the alternative—if by no means morally optimal.
We grant that sociological legitimacy—whether a legal order is perceived as just—involves some measure of speculation. But the proposition that perceptions of the law’s justice matter to people’s willingness to obey and support it requires no speculation. There is an ever-growing body of empirical work that is concerned precisely with documenting the importance of such perceptions and their impact on behavior. Moral realists cannot dismiss such perceptions.
Nor is it speculation that the sociological legitimacy of the U.S. Constitution is currently under sustained intellectual and political assault. A detailed treatment of the antislavery origins of the Fourteenth Amendment, how it was devised to combat systemic white supremacy, as well as what it actually requires of state governments and empowers the federal government to do is an essential part of any response to that assault. There is a limit to what any book can actually accomplish. But countering spurious claims of constitutional illegitimacy, which serve to undermine our constitutional regime, is one important thing we hope ours helps accomplish.
Merriam: Conservative Result-Oriented Jurisprudence
Mahoney operates on the assumption that we are not deliberately hiding our political commitments to make our conclusions more palatable to readers. Jesse Merriam does not. He adopts a hermeneutic of suspicion that strikes us as unwarranted and sometimes uncharitable.
Some examples: Merriam accuses us of “purging” Raoul Berger and Robert Bork from originalism by labelling their work “proto-originalism”—neglecting to note that the label was coined not by us but by Professor Lawrence Solum. Solum used this term to note that Berger and Bork’s scholarship in the 1970s preceded the term “originalism” itself, which was coined in 1980, along with the development of originalist theory in the 1980s, 1990s and 2000s. It is no insult to note that their early writings were entirely untheoretical and unsystematic—and Berger’s remained so until his death. (Berger also remained, as he once told one of us, an unreconstructed Roosevelt New Dealer. He was hardly a political conservative.)
Merriam attempts to drive a wedge between Bork’s originalism and Scalia’s by impugning the latter’s public meaning approach “as borne not from high-level constitutional politics but rather from low-level political careerism.” Scalia, Merriam maintains, formulated his approach “while he and Bork were vying to be President Reagan’s next Supreme Court nominee.” Scalia then got the nod. Accusing others of acting from political motives appears to be a Merriam trademark.
Yet Merriam fails to note that Bork soon rejected the “original intent” of the Framers approach apparently favored by Merriam as the more “conservative” interpretive method. In his one major foray into originalist theory—The Tempting of America originally published in 1990 with the acknowledged assistance of Northwestern law professor Steven Calabresi—Bork expressly adopted the modern “public meaning” approach to originalism then under development by Scalia and others before either of us were ourselves originalists.
“Though I have written of the understanding of the ratifiers of the Constitution, since they enacted it and made it law,” wrote Bork, “that is actually a shorthand formulation, because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. It is important to be clear about this. The search is not for subjective intention.” (emphasis added.) He continued: “Nor would the subjective intentions of all the members of the ratifying convention alter anything. When lawmakers use words, the law that results is what those words ordinarily mean.”
Bork then summed up his approach: “All that counts is how the words used in the Constitution would have been understood at the time. The original understanding is thus manifested in the words used and in secondary materials, such as debates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like.” In short, the evidence we present and examine in our book, which Merriam does not address. Indeed, Bork’s stated approach is the one Merriam appears to reject as inadequately conservative.
Merriam charges us with catering to 21st century “wokism” by placing “Black” in upper case when describing people of African origin. In so doing, he neglects a history of demands for such capitalization. Such demands include W.E.B. DuBois’s ultimately successful early-20th mass letter-writing campaign to convince the recalcitrant New York Times to capitalize “Negro.” By capitalizing “Black,” we are honoring an important struggle that is continuous in spirit with the activism that shaped the content of the Fourteenth, and we are offering respect. That Merriam doesn’t see it that way evinces his unfounded cynicism; as do his insinuations throughout his essay that our conclusions about the meaning of the Constitution are solely made in service of our libertarian political commitments.
There is not much one can say in response to this kind of stuff. We spent years studying the Fourteenth Amendment, poring through primary and secondary sources, seeking feedback from colleagues who had sifted the same materials, and responding to peer reviewers’ concerns about specific claims. Merriam seems uninterested in any of this. To ensure that we heard from a wide swath of conservative and other constitutional scholars, we asked the faculties of Hillsdale College, the University of San Diego, the University of Notre Dame, the University of Virginia, and George Mason University to organize workshops on our manuscript (which we acknowledge in the book). Major revisions were made in response to this feedback.
Most important, although Merriam labels our account just “another original meaning” and calls for a “more historically rooted account of the Fourteenth Amendment,” he doesn’t say a word about what we missed or got wrong. His is a critique about motives and results that, in sharp contrast with Wurman and Green, fails to consider our actual arguments and evidence. His response is in the spirit of anti-originalism now arising from some conservative quarters—criticism that is heavy on caricature and recrimination and short on charity and rigor. These conservatives are demanding that originalism reach all the results they want and none they do not. Some are now expressly rejecting originalism altogether on the ground that the wrong people are now doing it to reach bad results. This, however, is a debate for another day.
Merriam also wants to know what we have to say about abortion, affirmative action, and other hot-button constitutional topics. He considers it a shortcoming of our book that we do not address them. We regard these and other constitutional questions as being of urgent political, moral, and legal concern. We did not address them for two reasons.
First, because applying our findings to specific issues would likely require another book for each issue. Those interested in the implications of that meaning for contemporary questions will find frameworks in the book for identifying the privileges and immunities of citizenship; the limits imposed on states by the due process of law; and the constitutional obligations of states and, failing that, Congress, to provide equal protection for people’s civil rights against public and private violence. We look forward to readers applying those frameworks to questions involving abortion, affirmative action, and other topics.
Second, we resist the modern tendency on the political left—and increasingly on the political right—to judge an interpretive approach solely on the acceptability of the substance of the results it reaches. “Show us your results and we will tell you whether we ‘buy’ your approach.” When done by the Warren and Burger courts, or by living constitutionalist academics, conservatives correctly disparaged this as “result-oriented jurisprudence.” To the contrary, interpretive methods like originalism are needed to discover which results are constitutionally warranted and which are not. In short, we need an interpretive method to confirm or disconfirm our “priors.” If we already knew the correct answer to every constitutional question before we actually interpret the Constitution in good faith, we would not need a constitution at all.
We stress that this does not amount to some kind of “neutrality” or a reluctance to engage substantive questions of political morality. In our conclusion, we emphasize our moral realism and respond to criticisms of originalism from conservative theorists who call for direct recourse to natural law in constitutional decisionmaking. Identifying the meaning of the text is one thing; evaluating the legitimacy of that meaning on moral grounds is quite another. Both are important.
We align ourselves with conservative originalists Jeffrey Pojanowski and Kevin Walsh, who maintain that the Constitution is morally good enough to be implemented as written. Specifically, we agree with them that the rules that the Constitution lays down provide a just scheme for cooperation in a complex society—a society in which answers to what we ought to do to facilitate human flourishing are often not specified by the law of nature. Conservative nonoriginalists who portray originalism as indifferent to questions of substantive morality are attacking a straw man.
By implying that we are adopting an approach to reach libertarian results—the very approach endorsed by both Antonin Scalia and Robert Bork!—Merriam is projecting his own cynicism onto us. We deny this is our method or our goal. The way to refute us rather than dismiss us, however, is to confront our evidence and argument: not to impugn our good faith as constitutional interpreters. By opting for the latter over the former, Merriam takes the easier path.
“The Gem of the Constitution”
The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit was borne of a genuine desire to understand the constitutional changes wrought by one of the most astounding and inspiring mass movements in human history. We do not claim to have captured everything of historical, political, or moral importance to the abolitionist constitutionalism that informed the Fourteenth Amendment, or to have brought forward everything that is salient to our constitutional law and politics today. We do, however, claim that our account of the original meaning of the Fourteenth Amendment fits the evidence better than any previously put forward, and honors the labors of those responsible for it.
No work of scholarship ever has the last word, nor should it. Our historical research led us to modify our previous views of each of the operative provisions of the Fourteenth Amendment. Time and further inquiry—including by the participants in this symposium—will doubtless yield more evidence still and give us occasion to update or further refine our current beliefs. We are grateful for this engagement with our work and to Law & Liberty for soliciting it. We look forward to further conversations with those who share our commitment to ensuring that what Republican Speaker of the House Schuyler Colfax in 1866 called “the gem of the Constitution” will shine undiluted.