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Progressive Originalism: KBJ’s Fresh Air

— October 10, 2022

Progressive Originalism came to the Supreme Court last week courtesy of Justice Jackson, but really, it’s just honest originalism.

Newly-minted Justice Ketanji Brown Jackson has taken her spot on the bench, and by all accounts she launched her Supreme Court tenure with a bang. Jackson is quickly becoming known for her willingness to speak freely from the bench (the rhetorical opposite of fellow justice Clarence Thomas) and for erudite questions that cut straight to the heart of the matter at hand. Right out of the gate, Justice Jackson is bringing a breath of fresh air through her use of progressive originalism to interpret the Constitution in ways that her conservative counterparts would likely prefer to ignore.

To better understand the logic behind progressive originalism, it’s best to start with plain old originalism, the judicial philosophy that first gained notoriety through association with Robert Bork, Ronald Reagan’s failed attempt at nominating a SCOTUS justice. At the time, Bork’s insistence that judges should be guided, not by their own interpretation of the law, but by the intent of the framers of that law, seemed radical. By the time Antonin Scalia revised the meaning to include the definition of the law’s language at the time of its passing, originalism was becoming a handy cover for activist conservative judges who wanted to pull the nation’s legal landscape firmly to the Right, but in a way that made it appear that their hands were tied by long-dead slaveholders who didn’t think women were competent to vote. In a word, cover.

However, there’s more to the Constitution than the original document and the Second Amendment. The Founders were wise men for their time, and they could perceive the possibility of a future where the introductory version of a country’s laws would need to grow and change, adapting to conditions and events that they knew they could only murkily foresee, at best. The first ten revisions were added before the ink on the original was barely dry, including a Ninth Amendment as a giant asterisk noting that simply because a right was not mentioned, didn’t mean it didn’t exist.

Milligan v. Merrill, a case currently under SCOTUS consideration, is a suit fighting a highly gerrymandered Congressional district map of Alabama. There are two major ways that a faction in power can try to hold on to it by redrawing election maps: packing and cracking. Packing is when a large number of voters are deliberately stuffed into a single district so that they don’t get to elect many representatives. Cracking is the opposite, accomplished by dividing a population into minority status in a great many districts, diluting their voice.

2014 House District map of Alabama, showing gerrymandered districts and a predictable political outcome.
This 2014 House district map of Alabama shows the result of gerrymandering by race. Image by Putitonamap98, courtesy of Wikimedia Commons. CC BY-SA 4.0

Alabama’s Republican-drawn map does both. It packs a third of the state’s Black community into one majority Black district, the Seventh, while cracking and scattering the rest into districts they can’t hope to win. Alabama’s population is 27% Black, but with the current map, they are likely to be able to elect only one House representative out of seven. This (allegedly, of course) violates the Voting Rights Act by denying some Alabama citizens equal representation under the law based upon race.

Prior to 2013, Alabama, as a state with a history of such discrimination, would have had to submit the map for review, but the Court struck that law down on the basis of there being so little discrimination in those localities that nobody needed protection from disenfranchisement anymore. It’s a bit like rescinding mask mandates the minute there’s a bed in the local ICU without a COVID patient in it. You can probably guess what happened next.

In a stunning bit of motivated reasoning, though, Alabama’s solicitor general Edmund G. LaCour, Jr., is arguing that a lower court decision, which mandates that the State redraw maps to create two majority-Black districts that would allow more proportionate representation, is itself racist. Drawing two such districts is possible, LaCour said, but only if the State goes out of its way to consider race when drawing lines. Considering race in this way, he argued, runs counter to the 14th Amendment, which guarantees equal treatment for all citizens under the law. (Perhaps you’ve heard this phrased more succinctly as “All Lives Matter!”)

This is where a bit of history, viewed through the lens of progressive originalism, might come in handy, and Justice Jackson was there for it.

After the Bill of Rights and a couple other administrivia-based amendments were ratified came the Civil War, and eventually, the Reconstruction-era 13th, 14th and 15th Amendments. Despite the most stringent originalists discounting all of this as some kind of “not real Constitution,” it most certainly is, and it came during a period so formative that it can be considered a “second Founding.”

When the former (and possibly future) Confederate states were pulled back into the Union kicking and screaming, they didn’t particularly want to give full and equal rights under the law to people that they were unaccustomed to thinking of as people, but they couldn’t really say that part out loud. Instead, they played some reindeer games with semantics, like, ‘we don’t want to discriminate against Black people, of course, but we’ll only let people vote whose grandfathers voted’ or perhaps ‘we will allow everyone who can pass our literacy and intelligence tests to vote, which isn’t racist at all’ (paraphrased, clearly) when such tests were set up to exclude the vast majority of Black citizens.

If you want to get truly originalist about the 14th Amendment, it was deliberately crafted with situations like these in mind, to use the Federal government’s power to ensure equality before the law to America’s newest Black citizens. As Justice Brown pointed out, “when I drill down to that level of analysis, it became clear to me that the Framers themselves adopted the equal protection clause, the 14th, the 15th Amendment, in a race-conscious way. That we were, in fact, trying to ensure that people who had been discriminated against, the Freedmen, during the Reconstruction period, were actually brought equal to everyone else in society.”

What’s more, even Thomas Jefferson, a slave-owning Founder, would not have found this amiss. He imagined a time when slavery was no more, and looked forward to a future when the country would be rid of it, even if he wasn’t ready to do so himself. They had conceived the idea of a country that would improve with time, drawing more and more people under the umbrella of freedom. He and Madison left it to us, the future generations, to continue that work, and provided us with a document that can grow with us.

The nearer we approach the Founders’ idea of equality and freedom in practice, the closer we are to being able to discard concepts like “progressive originalism” as being different from originalism. To do that, however, we must stop making it easy for conservative “originalists” like Amy Coney Barrett, Clarence Thomas, and Brett Kavanaugh to use specially-motivated interpretations of the supposed intentions of Constitutional Framers as convenient cover to pull the country in a direction that would disappoint Jefferson and Madison and horrify Thomas Paine.

Related: Judge Strikes Down Voter Suppression Law


Politics Chat, October 4, 2022: Heather Cox Richardson
America tussles over a newly fashionable constitutional theory
Originalism, Amy Coney Barrett’s approach to the Constitution, explained
KBJ’s case for ‘progressive originalism’ in Supreme Court debut draws rebuke
Hear Ketanji Brown Jackson Use Progressive Originalism to Refute Alabama’s Attack on the Voting Rights Act
Letters from an American, October 4, 2022
Milligan v. Merrill
‘Force to be reckoned with’: Ketanji Brown Jackson shines in first week
In 2013 the supreme court gutted voting rights – how has it changed the US?
Steven Mazie on Twitter

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