Should we adhere to the original Constitution of 1789 or the Constitution of 1868?
You might be asking, “What is the difference?”
Last year, I talked about the rise of the “Progressive Originalists”, those who buttress their loose construction on a distorted reading of the 14th Amendment.
That is the Constitution of 1868, and there is no louder supporter of this position than Professor Randy Barnett.
Barnett is a “conservative/libertarian” who claims to be a “14th Amendment Originalist.”
Though Barnett does not explicitly say so, he designed his recent book on the topic to be a thorough take down of Raoul Berger’s Government of Judiciary and subsequent The Fourteenth Amendment and the Bill of Rights.
Leftist legal scholars hate both with a passion and let Berger know it throughout the 1980s. Why? Because if Berger was correct, and he was, then the entire basis of the modern civil rights movement was built on a house of cards.
In other words, these lefties don’t want to believe it because it was slaying their sacred cow. Barnett rides to the rescue, sort of.
Barnett unconvincingly argues that those who insist that the author of the Fourteenth Amendment, John Bingham of Ohio, really intended the amendment to incorporate the Bill of Rights and in the process provide the intellectual firepower for the expansive civil rights programs of the general government.
Bingham’s reputation has been revived in the last twenty years by people like Eric Foner, James Oakes, and others who insist that he was a “second Founding Father” who crafted an amendment that would transform the United States.
They are partially correct, but not because that is what the Fourteenth Amendment intended to do. It is only because that is how the federal courts have interpreted the Amendment.
Barnett calls this the correct position.
As a result, he urges “originalists” to reject the “original Constitution” in favor of the Constitution as altered by the Republican Party and the Fourteenth Amendment.
I get why. This takes the “racist” sting off the table, but it also creates its own fairy tale of interpretation.
Barnett wrote a long essay on this position and the “proslavery” or “antislavery” origins of the Constitution. It deserved a thorough review, so I will tackle it on THREE episodes of The Brion McClanahan Show.
Part 1, Episode 772:
Were the Founding Fathers Proslavery?
People have a hard time separating slavery from racism.
The two terms have become synonymous in American society because of the history of the slavery in America.
This description lacks complexity, as white Europeans were also enslaved, albeit at a different rate and manner, as white indentured servitude disappeared long before African slavery in the United States.
But that does not mean it didn’t exist, as did black slaveowners, most of whom owned slaves for profit over humanitarian concern.
Regardless, Americans eventually associated slavery with Africans and no other racial group.
Yet, you could be anti-slavery and believe in “white supremacy” in the 18h and 19th centuries. The vast majority of Americans would not have known any other explanation for a stable society. Western civilization was, after all, crafted by Europeans.
And most emancipationists and later abolitionists were indeed “racists” under a modern definition of term.
The notable exceptions would be the several leading American black abolitionists like Frederick Douglass and some white radicals like the Grimke sisters of South Carolina. But these were the exceptions in the antebellum United States.
Modern historians who dabble in the business of “systemic white supremacy” never can answer one simple question: what was the alternative for 18th or 19th century people living in the 18th or 19th centuries?
Many dreamed of a world without slavery, Southerners like Jefferson included, but most could not figure out how to reconcile abolition with a multi-racial society, not even in New England where African-Americans made up less than one percent of the population and yet faced severe restrictions on their lives and property.
They did not think Africans were capable of self-government, not even after the War, as Connecticut among other Northern States prohibited blacks from voting. That only changed with the 15th Amendment to the United States Constitution.
Antebellum Americans did not hold our modern views on race, and to insist that they did and that their actions should have matched our own is the very definition of presentism.
This is why I argue that Lincoln’s “proposition nation” was indeed a myth, not because Jefferson didn’t write it or some people–even many members of the founding generation–didn’t rhetorically use it, but because actions spoke louder than words. American commitment to racial egalitarianism, or any egalitarianism for that matter, was suspect at best and mostly non-existent.
They didn’t believe it beyond political rights for citizens, and citizenship had restrictions.
Even Jefferson’s proposed revisions to the Virginia Constitution limited voting rights and citizenship.
So much for Jefferson’s belief in “all men are created equal.”
So what?
Does it change the fact that these men drafted two constitutions for the United States and several State constitutions or that they won two wars against the British, a naval war against France and were, in my opinion, the greatest generation in American history?
No other generation comes close.
That’s why “conservatives” who run around championing Lincoln and the 1850s Republican Party aren’t really conserving anything except a nineteenth century leftist dream based on a real myth, the myth of the proposition nation and the righteous cause.
Is that “conservative”? Randy Barnett seems to think so, which is why I spent three episodes of The Brion McClanahan Show this week on Barnett’s piece.
You aren’t going to win an argument with a leftist by relying on leftist talking points. You’ve already conceded the field.
Part 2, Episode 773:
The Original Constitution vs the 14th Amendment
Should we follow the original Constitution or the Constitution of 1868?
If you suggest the former, then according to many “conservatives” and libertarians, you are walking into a minefield.
You see, many Americans see the original Constitution as “pro-slavery.” This stance comes from the arguments of nineteenth-century abolitionists like William Lloyd Garrison who considered the document to be a “covenant with death.”
On the other hand, some abolitionists like Frederick Douglass and Lysander Spooner thought the Constitution was explicitly anti-slavery. Douglass, in fact, came to this position after reading Spooner.
Neither are correct. The Garrisonian position is more popular among those on the left because it works well with their political positions. If the Constitution “enshrined slavery,” and if the document was nothing more than a “covenant with death”, then scrapping it makes logical sense.
Who says the 1850s are dead? It’s not the right that’s living in the 1850s, its the progressive left who constantly dust off early Republican Party talking points.
The right likes to use the Douglass narrative because it buttresses their Lincolnian myth and theoretically helps them ward off charges of racism.
We know that doesn’t really work.
The reality is that the Constitution was neither proslavery nor antislavery. It was neutral. The word “slave” never appears in the document, and while Americans could make the case that the United States government was the government of the “white man”–and what else would it have been in the 1840s?–race was not specified in any article of the Constitution.
It did not “enshrine slavery.” It allowed for States to use federalism to either maintain or abolish the institution. It continued the international slave trade for 20 years, but gave the power to Congress to abolish it at that point. It mandated that fugitives from the law face justice. It did not give Congress any power over the institution either pro or con. It did protect property rights, and as slaves were property in the nineteenth century, the United States government had a legal obligation to protect that property in federal territory, hence the rub with the common property of the United States, but again, that does not make the document “proslavery.”
Barnett and I, whom I have sharply criticized over the last three days, agree on this point.
Just because the left wants to make stupid arguments doesn’t mean we should come up with our own stupid arguments to push back, like abandoning real originalism for “14th Amendment originalism.”
You know who wins in that scenario?
The progressive left and the progressive right.
Not you or I.
I wrap up my three episodes on Barnett’s piece with Episode 774 of The Brion McClanahan Show.
- Should We Abandon the Original Constitution? - March 31, 2023
- Is the Constitution “Pro-Slavery?” - July 13, 2021
- Why we get it wrong about the “antifederalists” - April 5, 2021