Originalism, Minorities, and Women

At the Originalism Conference last weekend, Christina Mulligan presented a well received paper on the objections to originalism from racial minorities and women and how such objections might be addressed.

It was an interesting paper and canvassed the whole range of objections, without asking whether or not they were well considered.  While it is annoying for originalists to find weak criticisms taken as seriously as strong ones, I nonetheless found the strategy useful.  If one is attempting to engage with people who believe a range of things, it will sometimes be better to give the best response rather than to tell them that their criticism is mistaken.

Some of the criticisms by minorities are important.  One significant criticism of the Constitution is that it was written by white men at a time when much of the country practiced slavery and women were treated as second class citizens.  John McGinnis and I devoted a chapter of our book, Originalism and the Good Constitution, to this issue.  We basically argued that the original Constitution was seriously defective and did not obligate black slaves, but that the defects of the Constitution were largely corrected by the Reconstruction Amendments.

One of the criticisms that Mulligan addresses derives from the claim that most originalists in the academy are white males.  Based on this claim, it might be thought that originalism is biased against women and minorities and that white male originalists are unconcerned with the interests of these groups.  I found this to be a disturbing criticism.  The white male originalists in the academy that I know are neither biased against women and minorities, nor unconcerned with their interests.  And the suggestion that they are is outrageous.

But what of the fact that most originalists in the academy are white males?  That is true, but the question is what it proves.  My sense is that people who are on the right in the academy tend to be white males.  Thus, to the extent that originalists are on the right, it is no surprise that they tend to be white males.

Yet, not all originalists are white males.  In fact, the person I regard as the leading originalist in the world today is a black man, Justice Clarence Thomas.  It is significant that among people who criticize originalism as anti-minority, so little is made of the fact that arguably the leading originalist is a black man.  If one made this point in the academy today, many people would scoff at the idea that Clarence Thomas is black.  Sure he is black, they would say, but he is not a genuine black man.  He has the views of a white man.  He is a conservative originalist.

But this response is revealing.  It suggests that whether a person is a racial minority is not the primary question.  The question instead is whether that person has progressive views.  That originalists do not tend to be progressive is an important fact, but it is different than the claim that originalists tend not to be minorities.

I tend not to focus on the racial identity or sex of scholars or judges.  But if one is concerned about such things, then it is striking fact about originalism that arguably the world’s leading originalist is a black man.  But it is seldom, if at all, mentioned.