Consider the following problem. Abraham Lincoln appointed five justices to the Supreme Court, Noah Swayne, Samuel Miller, David Davis, Stephen Field, and Salmon Chase. Only one, Salmon Chase, seemed to care deeply about persons of color. What explains the judicial hostility to Reconstruction, even among Lincoln’s judicial nominees?
Some explanations focus on judicial independence. Life tenured justices, we are told, often vote in ways that surprise their political sponsors. Other explanations focus on the political construction of judicial power. Lincoln’s judicial nominees were not committed racial egalitarians because Lincoln was not a committed racial egalitarian. Other kinds of explanations are also possible, as well as more sophisticated versions of the judicial independence and political construction theses.
Much scholarship on American and constitutional developments seeks to answer this and related questions. Political scientists and historians think explaining why Lincoln’s judicial appointees were often hostile to Reconstruction may cast light on the relationship between the federal judiciary and the rest of the American regime. We do not, however, think explaining why Lincoln’s nominees took conservative positions ought to tell as much about the constitutionality of affirmative action and gay marriage.
The main virtue of Constitutional Redemption, my first post suggested, is that understanding constitutional argument as a form of story-telling enables us to distinguish the sorts of reasons we ought to give when explaining judicial behavior during Reconstruction and interpreting the Fourteenth Amendment. When explaining judicial behavior, getting Lincoln right is very important. If we overestimate Lincoln’s commitment to racial equality, we may overestimate judicial independence from presidential politics and, as a result, make political mistakes in our time. When interpreting the Fourteenth Amendment, getting Lincoln (or Bingham or whoever) right is less important. If we overestimate Lincoln’s committee to racial equality, we are likely to more good than wrong in the world.
My central concern with originalism is that originalism tends to conflate two very different kinds of historical inquiries, the sort we do when we are trying to explain the past and the sort we do when we are trying to determine our fundamental values as a nation. Worse, originalism tends to teach us that the way we combat our opponents is hit them over the head with eighteenth century dictionaries and Volume 5 of the Collected Works of Abraham Lincoln. The truth of the matter is that political movements only arise and endure in a country such as the United States when they can tell a story of American history that is about as true to history as the other enduring narratives of the time. Professor Tsesis’s narrative of Abraham Lincoln is presently compelling because no one wishes to contest the moral. The minute, however, he invokes Abraham Lincoln to support redistribution, affirmative action or the designated hitter rule, members of the opposite party will be armed with six Lincoln quotes that just demonstrate the opposite.
Moving to ever more abstract principles is likely to be inadequate for two related reasons. First, at some point, the principles become so abstract as to be meaningless. Second, as the principles become less abstract they become far more contestable. Consider Rogers Smith’s claim in Civil Ideals that racism is an independent ideology that is deeply rooted in the American political tradition. Suppose that is true. Most framework originalism claim that, we just happen to be lucky that this principle, deeply rooted in the American political tradition, just happens not to be deeply rooted in the American constitutional tradition. Put differently, should the debate over the constitutional status of racism depend on when and why Abraham Lincoln abandoned colonization.
Constitutional Redemption, minus some of the last chapter, belongs in the new genre of constitutional politics. A central them of Constitutional Redemption is that political movements succeed by out-organizing and out-voting their rivals. The Supreme Court advances their constitutional vision when they gain the power to put sincere believers on the federal bench (or are at least able to veto rival attempts to stack the courts with those of a rival faith). Constitutional stories are a central means by which the faithful are rallied, but we will gain nothing merely by waiving one of my footnotes and claiming our history is 51.35% more accurate than someone else’s history.