America Is Captive to One Ridiculous Legal Theory That Dictates Our Lives. Here’s What We Can Do.
This is part of How Originalism Ate the Law, a Slate series about the legal theory that ruined everything.
This article is inspired by the author’s work in her book The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back, which is now available for preorder.
Originalism—the once obscure legal theory now embraced by the right-wing reactionaries on the Supreme Court—should never have taken over in the first place. The originalist ideology maintains that the meaning of the Constitution is fixed at the time of its enactment, and its provisions must be understood now as the public purportedly understood them back then. Yet the Supreme Court expressly rejected that very idea in May 1954 when it decided Brown v. Board of Education and recognized racially segregated schools as unconstitutional: “We cannot turn the clock back to 1868,” the court wrote with reference to the adoption of the 14th Amendment, “or even to 1896 when Plessy v. Ferguson was written.”
Crucially, the court’s finest moment was premised on the idea that binding legal interpretation to history is not the only way—or even a good way—to make decisions about the Constitution and the country. Brown provides a welcome reminder that originalism is the tool of segregationists, and that the theory should be treated with the same level of disdain with which comic-book Batman treats guns: “This is the weapon of the enemy. We do not need it. We will not use it.”
The idea that modern constitutional interpretation can’t deviate from its alleged original public meaning continues to serve the same function today as it did in 1954 when it was invoked by the litigants defending segregation. The reason why the Republican justices on the Supreme Court and their enablers claim that legitimate constitutional interpretation must follow some version of American history and tradition is so that they can drag the country back to the oppressive eras for which they’re nostalgic.
If not originalism, then what? The public must recover its ability to determine what laws mean outside of originalism’s strategic confines. If we the people are to build a modern equitable democracy, we must fight for an interpretive method grounded in a modern understanding of equality and democracy. I call that method inclusive constitutionalism. And I introduce it as a framework for constitutional interpretation in my forthcoming book, The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take it Back. At its core, inclusive constitutionalism refers to the idea that the Constitution must be interpreted in furtherance of an inclusive democracy, meaning a society that extends full membership to all its residents and enables them to participate equally in the nation’s social, political, and economic life.
Unlike originalism, inclusive constitutionalism does not consider a point in time to be the sole acceptable source of a single and unchanging constitutional meaning. Rather, the theory appreciates the role that social movements have always played in driving constitutional change. It provides guidance on how legitimate constitutional meaning should evolve—the public should determine the meaning of any given constitutional provision in light of the overarching liberatory mission of the Reconstruction Amendments.
The term “Reconstruction Amendments” refers to those amendments ratified shortly after the Civil War in order to reimagine and redefine citizenship and civil rights for Black Americans. The 13th Amendment abolished slavery, with a notable lingering exception as punishment for a crime. The 14th Amendment established birthright citizenship and barred states from violating certain rights of citizens. It guaranteed all persons, regardless of citizenship, equal protection of the laws. And it promised that all persons would be protected against deprivations of life, liberty, or property without due process of law. (Importantly, this is just some of what the 14th Amendment does—its provisions go hard and we could talk about them and their underenforcement all day.) The 15th Amendment guaranteed that citizens have the right to vote uninhibited by racial discrimination. And all three of the amendments explicitly empowered the federal government to enforce their provisions to protect people’s rights nationwide.
Nearly a century after traffickers in human property declared that all men were created equal, the Reconstruction Amendments finally and formally established equality and multiracial democracy as constitutional commitments that the government is obligated to work toward.
These commitments can and should inform all constitutional interpretation today.
It is of course true that some parts of the Constitution don’t have room for interpretation. Article 1’s requirement that members of the House of Representatives be at least 25 years old, for example, isn’t exactly up for discussion. And Article 2’s specification that presidents are elected to four-year terms is similarly quite specific. But other sections of the Constitution address concepts like “speech” or “liberty” or “cruel and unusual punishment.” These terms are broad and their meanings are debatable—and yes, their meanings have changed over the two and a half centuries of this country’s existence. Inclusive democracy should be a key part of that debate, with would-be interpreters of the document asking what a provision would mean if the inclusive democratic goals of the Reconstruction Amendments were actually afforded the respect they deserve.
Such respect is sorely lacking at the high court. It is bitterly ironic that opponents of progress like the Supreme Court’s conservative supermajority treat the amendments designed to eradicate second-class citizenship as second-class constitutional provisions. Too often, originalists regard the Reconstruction Amendments as little more than a hastily written postscript to the founders’ Constitution. But properly considered, the Reconstruction Amendments reframe the entire document and imbue it with progressive purpose. The transformative and egalitarian goals of the Reconstruction Amendments are irreconcilable with the originalist position that the Constitution can only be appropriately understood as the key to preserving an unjust past. Recognizing this, inclusive constitutionalism asserts that the Constitution is best understood as a command to create a more just future.
Thinking about the Constitution in a new way is a necessary condition for bringing about lasting democratic change. The court currently has a largely unchecked capacity for harm, and power can steamroll even the most thoughtful arguments. But organizing around such arguments can help build power as coalitions unite for a common goal. It can shift how lawyers and nonlawyers alike understand what the Constitution requires and how constitutional principles can be used in the struggle for social justice. The activists who took to the streets, legislatures, and state courts to protect abortion in the wake of the Dobbs decision, for example, show how movement demands can be translated into legal doctrine. Developing a new interpretive model can push communities to articulate a constitutional vision and think about what structural changes are necessary to effectuate that vision.
Inclusive constitutionalism is a fundamentally hopeful theory in that it insists that we can and should move past the unbearable present. By using the Reconstruction Amendments to reconceptualize constitutional interpretation writ large, it aims to facilitate the construction of an equitable democratic future. And since it encourages people to think critically about both how to get from here to there and what we can do once we’re there, it simultaneously builds a form of jurisprudence-in-waiting and seeks to shorten the wait.
There is an attainable future where the power of the Supreme Court is diffused at an individual level through the addition of more justices and removal of life tenureship. There’s an achievable future where the court’s power is curtailed at an institutional level through the establishment of limits on what kinds of cases it can hear or what kinds of laws it can strike down. In the future, the Supreme Court will not be permitted to hand down reactionary edicts from on high. So what is it that the court does? What do you affirmatively want from the court and the Constitution, beyond looking at the present nightmare and saying “not that”?
These are the questions that inclusive constitutionalism seeks to address. And it does so by urging the public to look to the revolutionary mission of the Reconstruction Amendments for answers.