Originalism And The Second Founding

It’s interesting (okay, infuriating) to note the highly selective “originalism” practiced by  retrograde justices on the Supreme Court. In their professed zeal to mind-meld with the nation’s earliest Founders, they entirely ignore what scholars have called “the Second Founding”–the post-Civil War passage of the 13th, 14th and 15th Amendments.

Ratified in the years immediately following the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—together known as the Reconstruction Amendments—abolished slavery, safeguarded a set of basic national liberties, and expanded the right to vote.

Both Justice Ketanji Jackson and Heather Cox Richardson have recently reminded us of that “original” history.

President Andrew Johnson, an unrepentant racist, vetoed the 1866 civil rights bill, claiming–among other things– that it wasn’t race neutral.  It wasn’t–and it wasn’t intended to be. Congress passed it over his veto– and based the Fourteenth Amendment on it.

 The 13th, 14th, and 15th Amendments explicitly give the federal government power to protect individual rights in the states. Scholars like Akhil Reed Amar, who teaches Constitutional Law at Yale, call their passage the “second founding.”

Amar explains that the Reconstruction Amendments shift emphasis somewhat from Madison’s first concern– protecting people from unrepresentative government (see Federalist 51)–to his second: protecting minorities from the tyranny of the majority. The 14th prioritizes “ideals of liberty and equality.” 

Amar and Richardson are two of the many historians and constitutional scholars who define the period following the Civil War as a “reconstruction” or “second founding.” (Amar’s magisterial book The Bill of Rights is subtitled Creation and Reconstruction.) So it is very interesting that today’s self-described “originalists” ignore that reconstruction.

I can see two reasons for that studied avoidance: first, the clear legal meaning of those Amendments, especially the 14th, is inconsistent with their theocratic revisionism; and second, they provide clear historical evidence that Constitutional principles have evolved to meet changing times.

A 2019 article in the New Yorker focused on the work of constitutional historian Eric Foner, who has written extensively on the Reconstruction Amendments. As Foner explains, the issues central to those Amendments remain central to our politics today.

Who should vote? Who should be a citizen? What does equality before the law really mean? But, most important, and without trying to denigrate any other scholar, I lecture a lot about Reconstruction—I lecture in law schools, I lecture in history departments, I lecture to public audiences outside the academy—and I have found that there’s very little knowledge of why the Thirteenth, Fourteenth, and Fifteenth Amendments are important, or what they were trying to accomplish, even in law schools.

Foner points out that, even in the immediate wake of their passage, the Court narrowed  application of the Amendments, arguing–against the evidence–that they hadn’t really effected much change. Foner and other historians disagree.

Many years ago, when I was doing research for a book I was writing, I unearthed  contemporaneous newspaper coverage of the arguments for and against ratification of the Fourteenth Amendment. Those debates confirm Foner’s reading: the Americans who were preparing to vote on their state’s ratification of the Fourteenth Amendment believed it made very substantive expansions to the “privileges and immunities” of citizenship. It was with that understanding that they voted for (or against) ratification.

As one pundit noted during Amy Comes Barrett’s (excessively brief) confirmation hearing: “given that the Constitution was effectively rewritten by the Reconstruction Amendments, it would be great to see a Supreme Court nominee say something like “I will interpret the Constitution as it was understood in 1870.”

In 2004, the Brennan Center issued a paper explaining the real history of the Reconstruction Amendments, and the persistent failure of the Supreme Court to properly respect and interpret them.(The current court is simply a more egregious example of a longtime failure of jurisprudence.)

From the introduction to that paper

The Supreme Court’s recent turn away from civil rights and toward states rights claims legitimacy from a familiar but false history: the Constitution of 1787 carefully preserved the states sovereignty; Congress operated for 150 years within narrow constraints on its enumerated powers; the courts zealously policed the boundaries of proper federal action; and the half-century starting with the New Deal, when the Supreme Court allowed the federal government to do more or less what it wanted, was an anomaly.

None of this is true. If there is an anomalous period in the relationship between the Court and Congress, it began shortly after the Civil War … These decisions betrayed Lincoln, who had promised a new birth of freedom at Gettysburg, and the people who enacted the constitutional amendments and legislation to make that promise a reality… 

Basically, the Court continues to ignore “the widely understood meaning and purpose of those amendments at the time they were ratified.”

We have very selective “originalists”!


  1. Wow…. First time I have ever gotten to do the first comment!

    The overturning of R v Wade, was based on an “original” alternate version of reality, so if you can even agree on what was historically true, then you aren’t going to agree on or even acknowledge the actual text of the amendments.

  2. This comment: “We have very selective “originalists”!”

    They were carefully selected to ensure outcomes for the darkly funded Koch network. All else besides this corruption is just exciting chatter.

    If I may paint with a broad brush, most religious fanatics (ACB) are “selective originalists” in Christianity. There is no difference between fundamentalists in any religion – rigid ideology.

    Interesting chatter, but these people are just judges for hire with zero ethics (sellouts). They now line the countryside.

  3. Congratulations Dan. You have to get up very early to be first on the comment wall!

    The Republican Arm of the US Judiciary (RAUSJ) which comprises a 2/3 majority of SCOTUS have really blown the covers off a treacherous and deeply cynical plan to “reconstruct” a reality that has never existed in US History. Gone, and likely forever, is any notion that it represents an impartial constitutional “check” on the powers of the executive and legislative branches of government. This is because they have become unmoored an unchecked themselves in pursuing an agenda SO far afield from common sense, much less over two centuries of laws put in place by representative democratic legislation as well as stare decisis.

    But the final nail in the coffin of the Republic may be the case sitting in the docket from North Carolina which addresses the claimed ultimate and unquestioned authority of a state legislature in settling matters of state election laws. Three of the justices, Roberts, Kavanaugh and Coney-Barrett ALL worked on the George W. Bush campaign legal staff of the case that went before SCOTUS in 2000 to call Florida a win for Bush over Gore. I cannot imagine how ANY of the three, and never mind the other rest of RAUSJ, could vote AGAINST a position they fought for and WON only 22 years ago.

    And if the decision DOES go the way of Bush v Gore, then there are only two years left to find a way for Dems to win an unassailable majority in the US Senate so they can pack SCOTUS with four additional Justices who will countermand the havoc and destruction of RAUSJ, the culmination of over 60 years of relentless work by American white christian nationalists.

    Based on the last seven years I’m not seeing the Dem national machine rising to the occasion….at least not under its current leadership. But things changed pretty quickly in the Republican Party in 2015-2016. It can happen again.

  4. Alito’s opinion in Dobbs makes it clear that neither the Creation nor the Reconstruction guaranteed any rights to women or children. He says that’s where Roe and Casey both got it wrong: attempting to balance the rights of women and potential children. Women’s suffrage came after reconstruction, and voting is the only right the US Constitution expressly grants to women. And Alito’s opinion is intentionally ambiguous. If a democratic congress passes a law guaranteeing a woman’s bodily autonomy and right to contraception and abortion, this SCOTUS can say it is not fall under the Supremacy Clause and violates state sovereignty. If a Republican Congress passes a national abortion ban, they can say that “the people have spoken” through their elected legislators. Heads they win, tails we lose.

  5. I can only second Todd’s comments. BTW, I managed to previously be the first commenter as I am 13 hours different from Central Time as I now live in the Philippines, a democracy not just in name, but also function with a peaceful turnover after the last election. 🙂 I will be able to vote in Philippine elections after I have lived here for 6 months. Imagine the constipation of the Repugs if that was enacted in the US.

  6. Very interesting article today Sheila!

    I would discern that those who call themselves originalists would not include anything that was not originally in the ratified initial draft of the Constitution as it were then. Amendments would not be included. The second founding as you call it would not be included in an original draft of the constitution. Therefore, the laws of this country are pushed back towards 1779, And, not 2023, before the Civil War and what is known by many, the good old days.

    So, what to do? What to do! This is not 1779, and with the Advent of all of this technology and our advanced communication networks, it will take a superhuman albeit a supernatural effort to change current trajectory.

    Whatever is done will not be liked by a significant portion of the population. And, how would you rectify that?

    The president of the United States as the ability to create or declare martial law! POTUS has the ability and power to suspend habeas corpus! I think a female POTUS would have the stones so to speak to do that, because a man sure doesn’t!

    On top of bringing significance back to the Second Founding, it would also drive religion out of government! And, that IS an original founders belief! How about a second reconstruction? One that restructures the court! One that buy the very law will have to go by the entirety of the Constitution as it stands today.

    And I might add this very possibly could happen! I don’t think it will change mankind’s trajectory on this planet, but, as sure as a pigsty stinks, will shake up this particular country, and probably lead to copycat uprisings in government around the globe especially those who are democratic.

    Religion or theocratic values have their place in everyone’s lives, but in a secular society, one cannot impose religious-based beliefs on everyone! Because everyone does not worship the same way, and everyone does not have the same beliefs. But those beliefs should be confined to one’s domicile or place of worship and not in government. Give everyone 2 weeks to do with what they desire and eliminate all religious related holidays! Everyone will have the time to celebrate whatever they wish when they wish and why they wish.

    Then, reactivate a restructured supreme Court, and put in place competency tribunals to make sure judges are competent and willing to follow the entirety of the constitution.

    Hey, it might happen! Just pay attention to the increasing tumult of this world, and you might see a pattern starting.

  7. I clicked on Post Comment after making my comments and it just disappeared and a blank screen came up.

  8. “The authority to amend the Constitution of the United States is derived from Article V of the Constitution.”

    Therefore the term “originalist” has to support the amended Constitution, not the one originally written before amending. The one that includes the Bill of Rights. The one that includes the 13th, 14th, and 15th Amendments.

  9. The “Third Founding” is here and has started with Dobbs. Beware. They have prepared for years for this and built it brick by brick with their Right Ecosystem. There is nothing even close to oppose them. They don’t hide it. It is right in front of our eyes daily. And they have the guns to back it up…

  10. JoAnn, I like your thinking!
    Maybe Amar, or Richardson, ought to run for POTUS! But, I jest.
    We need to be rid of the Electoral college, and Citizens United, for a start.

  11. Mitch D.; thank you and your last sentence says it all. Brought to mind an old adage, “If you know what the problem is, you know the solution.”

  12. We all know that, whenever conservative justices talk about originalism, they are signaling that they will do whatever suits them and somehow tie it to the founders. If the founders meant that everyone should own a gun, why did they clarify it with the phrase “A well regulated Militia, being necessary to the security of a free State,”? Usually I note at this point that “well regulated Militia” is defined in Article I, Section 8, but I won’t quote it this time. Let’s just be honest Mr. Roberts et al. You’re there to do what you damned well please, not to interpret the law through the lens of the Constitution.

  13. When truth is read in context then skillfully positioned to current context coated with sufficient ambiguity, it only confirms it is not always right to be right.

  14. This stuff makes me ill. OF COURSE this SCOTUS will turn back the clock to the 18th century. As Todd suggests, that’s what their Republican sponsors were paid to do by corporate/banking America.

    Remember when George DUH-bya appointed Roberts and Alito? That was the beginning of our judicial system/Constitutional government collapse. Bush was the dupe of Todd’s oligarchs, especially the (then) Koch brothers. Add in another Republican president who is a psychopath, and you get the next three puppets of the past.

    The solution above to swamp the Senate with Democrats so we can swamp the backward morons on SCOTUS and re-enact the Reconstruction Amendments. Otherwise, it will a slimy slide back into ancient times. Women! Beware! These backward-thinking doofuses will come for your voting rights next…after they’ve finished off gay rights/marriages and inter-racial marriages too.

    We the people are in great peril my the steaming pile of backwardness that the Republican party has been depositing in our pastures of democracy for decades. We MUST render the Republican party obsolete and destroy it – to be replaced with real and actual conservatism, not the backwardness we see today.

  15. I see no requirement in the Constitution, its amendments, or suggestions in the Federalist Papers that the rights, privileges and immunities of the polity are to be decided in an originalist frame. This court has taken it upon itself to select such a setting within which to make substantive decisions such as Dobbs, a setting that also allowed the court free rein with such as Shelby, Citizens United, and per Thomas, much more to come.

    With a 6-3 youngish majority and a Holy Roman Empire Charlemagne (Alito) at the helm, I see no alternative to a four-member expansion of the court.

  16. Gerald, I have always viewed the Constitution and some Amendments to be open to definition. I thought that was the founding fathers taking into consideration future change, progress and evolution of government to fit the times. It has been turned into a problematic Constitutional crisis with the intent of the Legislative branch to protect us from the Executive branch instead allowing such as Trump & Co. to take over the government and “stack” the Judicial branch with one party’s appointees to protect their control over all three branches of government. We have learned over the past six years that there were no conditions set in the Constitution to FORCE elected officials to perform their required responsibilities as sworn to by their Oaths of Office. The Constitution does not need change; it needs to be supported by holding those responsible for abusing the rights afforded them by that very Constitution. But who is there to do that?

    I hope that makes sense; I know what I was trying to say but not sure I stated it to be understood.

  17. If it won’t bend, then it breaks. How it breaks remains to be seen.

    Thanks for such an educational column Sheila. Much appreciated.

  18. Terry – WADR – “If it won’t bend, then it breaks.” Watching, talking about, fretting about…”it” won’t accomplish much. This one is on US, not “it”. We will have let it break.

  19. Oops, regarding my 12:22 comments I meant to say “open to interpretation”. I need to hone my self-editing skills.

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