“Progressive Originalism” and the 14th Amendment

Last week, I discussed Justice Jackson’s “progressive originalism.” This led to an email asking if I denied that such a thing existed.

It was easier to make an episode of The Brion McClanahan Show then respond directly, and it also allowed me to review a book that has created quite a stir in the “libertarian community,” Randy Barnett’s The Original Meaning of the 14th Amendment.

So-called “progressive originalism” is based entirely on that Amendment to the Constitution.

There are problems with Barnett’s book, most importantly that “progressive originalism” sounds a lot more like “textualism” than “originalism.”

The two are not the same.

Barnett admits that the way we interpret the 14th Amendment today was not the way the authors and ratifiers of the Amendment interpreted it.

It allowed for an expansion of “civil rights.”

That is not originalism. The author of the Civil Rights Act of 1866, on which the 14th Amendment is based, argued that the definition of civil rights was clearly spelled out in a 19th century legal dictionary titled Bouvier’s Law Dictionary. You cannot defend our modern interpretation of civil rights from that text. Here it is, in full:

8. Civil rights are those which have no relation to the establishment, support, or management of the government. These consist in the power of acquiring and enjoying property, of exercising the paternal and marital powers, and the like. It will be observed that every one, unless deprived of them by a sentence of civil death, is in the enjoyment of his civil rights, which is not the case with political rights; for an alien, for example, has no political, although in the full enjoyment of his civil rights.

9. These latter rights are divided into absolute and relative. The absolute rights of mankind may be reduced to three principal or primary articles: the right of personal security, which consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation; the right of personal liberty, which consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s inclination may direct, without any restraint, unless by due course of law; the right of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. 1 Bl. 124 to 139.

10. The relative rights are public or private: the first are those which subsist between the people and the government, as the right of protection on the part of the people, and the right of allegiance which is due by the people to the government; the second are the reciprocal rights of husband and wife, parent and child, guardian and ward, and master and servant.

Notice that “property” is referenced several times. That was the clear aim of Republican civil rights legislation in the 1860s and the 14th Amendment. Former slaves needed to be secure in their property, i.e. the ability to sue in court.

Political rights are not listed, nor are the vast “rights” conferred upon various groups today.

In order to agree with Barnett’s strained interpretation of originalism, you would have to redefine the term.

Barnett concludes the book with a ringing endorsement of the Lincoln Myth of American history. That, more than anything, is the book’s primary purpose.

This finds common ground with Straussian “equality as a conservative.” If “originalism” can be redefined by a poor interpretation of the 14th Amendment, then “originalists” cannot be considered racist or any other pejorative.

You see, they then believe in the Recreated United States of the 1860s, not the one that preceded the War.

The argument fails from the beginning, but it required an in depth discussion, Episode 723.

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