Calvin TerBeek (guest blogging) at the Faculty Lounge: Originalism, the Colorblind Constitution, and Some Preliminary Thoughts on Where the Debate Should Go From Here. From the introduction:
In an earlier post titled "Was Originalism Born in Sin?," I sketched out some evidence suggesting Bork's proto-originalism, as found in his oft-cited 1971 Indiana Law Journal article, was informed by anti-Brown narratives, especially those focusing on the "original intent" of the Fourteenth Amendment’s framers, and the simultaneous disparagement of social science. These narratives were initially voiced by, among others, virulently racist Mississippi Senator James Eastland, massive resistance columnist James Kilpatrick, and Barry Goldwater's ghostwritten The Conscience of a Conservative (penned by National Review editor L. Brent Bozell). The upshot was that originalism's intellectual history, given that it is an important idea, is worth studying and it is a history originalists should grapple with (but largely have not).
One interesting critique of my argument, explicitly made by Steven Sachs, and implicitly by Rick Garnett, was that the genetic fallacy posed problems vis-a-vis any real bite to my argument: that is, the current content of originalism cannot or should not be impugned by its unsavory origins. I am not convinced by this critique, and set forth some reasons why here. Indeed, it seems lost on originalists and their fellow ideological travelers that their critiques of the Progressive Era and “living constitutionalism” highlight the racist views held by many of these reformers at that time (with the odd implication that originalists and libertarians are the heirs to racial liberalism today).
At all events, it remains the case that no one has disputed the through lines from the segregationist/states' rights rhetoric to Bork's academic argument for original and framers' intent. Furthermore, another widely-held originalist argument, the colorblind constitution, is not subject to the genetic fallacy objection. Political scientists have demonstrated that the package of ideas making up colorblind constitutionalism, a view held by many originalists today, were repackaged by the very same racial conservatives who had previously spoken out against desegregation. It is also another instance of originalists failing to grapple with their own history.
A short delineation of this transformation and why it has significant implications for the current theoretical project of originalism follows below. …
Posted at 6:26 AM