I bring all of this up again because of a new article about Machen sent to me by historian Austin Steelman titled: “The Birth of the Dead Constitution: Arthur Machen Jr.’s Early Twentieth-Century Originalism.” Steelman credits me with shedding new light on this article and agrees that originalism that can discard known expected applications is an originalism capacious enough to justify virtually any result an originalist wants to reach (as the Roberts Court has shown again and again),
But what I did not know about Machen was that he was steadfastly opposed to equal rights for Black Americans and spent the decades after writing his article fighting against giving Black people the right to vote. He put forth obviously inaccurate views of the 15th Amendment that: it a) was not lawfully enacted; and b) even if it were, it did not apply to state elections.
We now have two amendments to the traditional narrative about the history of originalism. Although most people, including myself, usually traced the beginning of the doctrine to the 1970’s and the Robert Bork/Raul Berger responses to the Warren Court, Calvin Teerbeek has shown that the desire to employ the original intentions (now meaning) of the Constitution actually begun as a racist response to Brown v. Board of Education in the 1950’s.
But it turns out, Teerbeek did not go back far enough. Machen’s 1900 article, the first to ever use the phrase the “Living Constitution,” would to a great extent lead to his racist rewriting of the 15th Amendment and his efforts to justify denying Black voters the franchise. I did not know this history when I first wrote about his article.
I strongly recommend Austin Steelman’s article which contains far more about originalism’s birth than I am relating here. Not only does he persuasively argue that originalism was born in racism but that Machen’s 1900 originalism suffers from all the same flaws today’s originalism suffers from. According to Steelman, originalism then and now has the following defects (he supports all of these conclusions in great detail):
1) Originalists often incorrectly treat the 1791 Constitution more reverently than the Reconstruction Amendments (this was how Machen argued the 15th Amendment itself was unconstitutional);
2) Originalists favor the will of the anti-democratic Founders and Ratifiers over the desires of today’s popular majorities to make America more democratic and equal for everyone;
3) There is a strong relationship between originalism and faith (Machen was deeply religious. I believe someone recently wrote a book called “Originalism as Faith”);
4) Originalism as espoused by both Machen and today’s originalists is capacious enough to justify just about any result anyone wants to reach in any real case. There is simply no constraint there; and
5) Originalism then and now almost always takes a back seat to the values, politics, and preferences of whoever is using originalism as an interpretative tool.
To be clear, I am not saying today’s originalists are racists or liars. I am saying that originalism was born and raised arm-in-arm with racism, and today’s originalists should recognize that and distance themselves from the theory’s origins….