Originalism and the Ratification of the Fourteenth Amendment

ABSTRACT-Originalists have traditionally based the normative case for originalism primarily on principles of popular sovereignty: the Constitution owes its legitimacy as higher law to the fact that it was ratified by the American people through a supermajoritarian process. As such, it must be interpreted according to the original meaning that it had at the time of ratification. To give it another meaning today is to allow judges to enforce a legal rule that was never actually embraced and enacted by the people. Whatever the merits of this argument in general, it faces particular hurdles when applied to the Fourteenth Amendment. The Fourteenth Amendment was a purely partisan measure, drafted and enacted entirely by Republicans in a rump Reconstruction Congress in which the Southern states were denied representation; it would never have made it through Congress had all of the elected Senators and Representatives been permitted to vote. And it was ratified not by the collective assent of the American people, but rather at gunpoint. The Southern states had been placed under military rule, and were forced to ratify the Amendment-which they despised-as a condition of ending military occupation and rejoining the Union. The Amendment can therefore claim no warrant to democratic legitimacy through original popular sovereignty. It was added to the Constitution despite its open failure to obtain the support of the necessary supermajority of the American people. This Article explores the fundamental challenge that this history poses to originalism.INTRODUCTIONOriginalists have traditionally based the normative case for originalism1 primarily on principles of popular sovereignty: the Constitution owes its legitimacy as higher law to the fact that it was ratified by the American people through a supermajoritarian process. As such, it must be interpreted according to the original meaning that it had at the time of ratification. To give it another meaning today is to allow judges to enforce a legal rule that was never actually embraced and enacted by the people. And there is no warrant in a democratic nation for unelected judges to strike down popularly enacted statutes unless those statutes violate higher laws by which the people collectively agreed to be bound.2Whatever the merits of this argument in general, it faces particular hurdles when applied to the Fourteenth Amendment. The Fourteenth Amendment was a purely partisan measure, drafted and enacted entirely by Republicans in a rump Reconstruction Congress in which the Southern states were denied representation; it would never have made it through Congress had all of the elected Senators and Representatives been permitted to vote. And it was ratified not by the collective assent of the American people, but rather at gunpoint. The Southern states had been placed under military rule, and were forced to ratify the Amendment- which they despised with an (un)holy hatred-as a condition of ending military occupation and rejoining the Union.3 The Amendment may have enjoyed military legitimacy-might makes right, and the victor on the battlefield can dictate the terms of the peace.4 And it surely enjoyed moral legitimacy-right is right, and the evil of racism flies in the face of freedom and justice.5 But it can claim no warrant to democratic legitimacy through original popular sovereignty. It was added to the Constitution despite its open failure to obtain the support of the necessary supermajority of the American people.This Article explores the fundamental challenge that this history poses to originalism-a challenge that originalists have ignored.6 The point of this Article is not to question whether, as a formalist matter, the Fourteenth Amendment was properly promulgated and ratified. Despite some vigorous objections in the past,7 that question has been put to rest by the judgment of history, if nothing else.8 And the point is certainly not to suggest that judges err today in enforcing the Fourteenth Amendment judicially. …