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.

Reader Discussion

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on February 23, 2018 at 13:42:35 pm

And then there is this:


which suggests that the progressive preference within the legal academy is only going to get worse.

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Image of gabe
on February 23, 2018 at 16:46:07 pm

It is politically dangerous not to take seriously the threats of politically destructive people.
It is intellectually naïve if not strategically foolish to take their arguments seriously.

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Image of timothy
on February 23, 2018 at 19:59:02 pm

It really does come down to a matter of black and white. For Originialists, they will look at the Constitution and insist that what the framer's intended they put down in words and nothing more; while Living Constitutionalist will look at all the blank spaces between those words and insist that the framers would not have allowed for so much blank space if it was not their intention that some day Judges would use that space to fill in what they really intended.

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Image of Paul Binotto
Paul Binotto
on February 25, 2018 at 20:41:11 pm

"Is it an indictment of The Bible that most writers were white males?"

I don't think the fact that the book was written mostly by white men should make us believe it's not true, nor should that convince us that it is true.

We don't refuse to turn on the lightbulb because Edison was a white male, or refuse to make a telephone call because Graham-Bell was a white male. Or refuse to require the police to get a warrant because Madison was a white male.

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Image of Luke
on February 26, 2018 at 13:20:37 pm

Yeah, well just wait - some bright academic will no doubt soon see the oppression in *white* light bulbs.
Hey, let's take Mick Jagger's advice: "I see the [light bulb] and I want it painted black - la la la la la"

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Image of gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.