Eric Foner: Originalism and the Color-Blind Constitution are Intellectually Indefensible

Justice Ketanji Brown Jackson made waves earlier this month when she used her perch to offer a vision of racial equality that stands at odds with how the Supreme Court often treats matters of race. The justice’s lengthy remarks, which came during oral argument in Merrill v. Milligan, an important redistricting case that could weaken the Voting Rights Act of 1965, felt like a mini-history lesson on Reconstruction and the constitutional amendments that were ratified during that period. “I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required,” she said.

Jackson’s colloquy drew praise from commentators, some of whom noted that she was employing “progressive originalism” to advance a robust defense of racial equality under the law—which the Supreme Court has all but declared must be colorblind and not give a boost to people who have been historically marginalized on account of their race. With affirmative action in the sights of a reactionary supermajority, her insights on the Fourteenth Amendment may prove ever more valuable.

Beyond legal doctrine, I wanted to know what Eric Foner, one of the nation’s foremost authorities on Reconstruction, thought about Jackson’s take on this history. “I am of two minds about Justice Jackson’s remarks,” he told me in an email. “I am not a believer in originalism and do not want to operate on terrain constructed by the conservative justices. Originalism is intellectually indefensible. But if you are going to talk about history you had better get it right, and she does a much better job of that than those who believe the architects of Reconstruction were colorblind.”

There was a lot to unpack there, so the two of us spoke on the phone to talk some more about Jackson, the sham of originalism, the current Supreme Court’s selective reading of history, and what he might tell the liberal justices if he had their ear.

Why is originalism problematic from a historical perspective?

Eric Foner: There is no important document in the world that has only one original meaning or one original intention. Let us take the Fourteenth Amendment: It’s ambiguous. It is full of generalities—general principles, which is fine. They have to be worked out, whether it’s “due process of law,” or “privileges and immunities.”

Those phrases meant a lot of different things to a lot of different people. These things were fought over. They were contested. And one of the points I make when I write about this is that the whole search for this generally looks purely at the debates in Congress, and therefore completely eliminates any Black voice. What did African Americans who are the subject of the Fourteenth Amendment in many ways—what did they think these ideas these phrases meant? And what did they think of the purpose of the Fourteenth Amendment? Without Black legislators in the South, under Radical Reconstruction, voting to ratify the Fourteenth Amendment, there would be no Fourteenth Amendment. And they must have had their own ideas about what they were doing, what they were trying to accomplish.

But you never get that in these discussions. And I just think it’s a misconceived effort. There’s nothing wrong with figuring out what people were trying to do. That’s part of the historical effort to understand the time period. But to think that there’s one original meaning is just foolish, in my opinion.

So you wouldn’t even concede the point that originalism is a tool rather than the tool to interpret the Constitution.

[Laughs] You know, I’m not a lawyer. I’m not a law professor. I’m not a constitutional scholar, although I play one on TV sometimes. But, you know, people can use all sorts of tools. But even if there were a single original intent, I don’t think we should accept the premise that that is what should govern an essential part of our political and legal system right now. I’m a believer in what they call the living Constitution; you apply these principles at the present, not by going back to figuring out what in 1866 Senator Jacob Howard or Charles Sumner, or for that matter, Jefferson Davis thought about what the Fourteenth Amendment meant.