Justice  /  Q&A

“Originalism Is Intellectually Indefensible”

On the persistent myth of the colorblind Constitution that the Supreme Court's conservatives have embraced.

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.

And the idea that in the Dobbs decision, that somehow we are excluded from policies that didn’t exist a century and a half ago, is completely antidemocratic. But that’s what the Supreme Court says on gun control. Justice Thomas’s opinion [in Bruen, which expanded the Second Amendment right to bear arms in public spaces, says], “No, well, they didn’t pass the kind of laws that they passed now back then. So we can’t do it now.” Ridiculous, in my opinion.