Benjamin G. Davis, a professor at the University of Toledo College of Law in Toledo, Ohio, discusses the questions he would most like to ask constitutional originalists...
In the present confirmation hearings, I would like someone to ask Judge Barrett a question left unanswered by Justice Scalia, her mentor:
1. What influence does the fact that many of the founders and framers were slave owners have on your originalist views?
And then I would like to ask a follow-up:
2. What is your response to the objection to originalism that points out that a person’s ancestors who were enslaved were owned by founders and framers, and in fact the founders and framers’ DNA is in their descendants?
This is not a hypothetical.
It’s my case.
One of the founders and framers was Benjamin Harrison V, the father of President William Henry Harrison. The blood of the Harrison family runs in my veins.
I have their DNA in me through the enslaved people they owned.
I asked the late Justice Scalia a version of these questions back in 2004 when I was an untenured professor. He did not give me a very intelligent answer. Maybe Judge Barrett can.
Justice Scalia said first that the People made the Constitution. I responded of course with “the People?” as he knew only white property-owning men made the Constitution.
He then said that I should man the barricades. I said that I was a law professor. He said that I should then be logical. And we stopped and then he added “you have to get over slavery” to resounding applause at the Inverness Club in Toledo at a dinner in his honor of 400 or so people. Not impressed.
After the dinner was over, on the way out a white couple said to me: “He didn’t answer your question.”
And the wife of Judge McQuade for which the auditorium is named at the law school said to me with visible emotion and pride – she had been sitting at the same table as me – that her great-grandfather had fought for the Union and been shot but was saved because the Confederate bullet hit his belt buckle.
On a road trip, I stopped at Gettysburg and saw the ghosts. In the tourist shop, I saw a US army belt buckle (made in China) and bought it for Ms. McQuade in remembrance of her great-grandfather.
As Morpheus says to Neo, welcome to the desert of the real.
Here is another question for Justice Barrett, one that came to me later, long after Justice Scalia was gone:
- Justice Scalia once told a black law professor that he should “get over slavery” to resounding applause in a large dinner of 400 people at the Inverness Club in Toledo. Since originalists don’t “get over” the founders and framers, why should Americans get over the slavery that they practiced?
A. Fun with Originalism and Living Constitutionalism
I am a new member of two Constitutional Law listservs: Constitutional Democracy moderated by Professor Mark Graber which has an international and comparative bent, and Conlawprof moderated by Professor Mark Scarberry which has a more US-focused bent. I asked the questions above on those listservs as I have waited for an answer for nigh on 15 years. I ask the question in some form whenever I come across a person who calls themselves “an originalist” I ask them this question and see what they answer.
I was very pleased that persons on these listservs responded. My attention was drawn to Chapter 6 of Professor Michael Rapaport and Professor John McGinnis’ book on Originalism and the Good Constitution which my library has provided me overnight and I read last night. I thank another member for taking my question seriously and providing the first originalist response to my questions that I have heard in a coherent form in the 15 or so odd years that I have asked that question.
There were several insightful critiques that educated me about issues with the public meaning approach, constitutional legitimacy, and the anti-slavery Constitutionalism of Lysander Spooner
and Frederick Douglass
(as persons of that time who should be in the originalist’s canon I would think). Also, Sojourner Truth (see below) should be in that canon. I learned about the distinction between belief and conduct that might be made on religious exceptions. I learned about the Indian experience with the imposed British colonial first Constitution, South Africans’ relationship to its post-apartheid Constitution – Constitution Hill, further readings on originalism, possible comparative roles of the Federalist Society and Samuel Griffith Society in Australia and other comparative and American focused insights.
I was thinking of calling originalism (X) and living constitutionalism (Z) to get away from the American-centric visions of these theories so as to accommodate the critique from abroad. At the same time, I hope my colleagues from abroad will see in my comments here relevant concepts that resonate with the complexities in the systems within which they live. I do not have the temerity to speak of India or Australia with anything more than a tourist’s acquaintance of the wonder of them and the wonder of their histories. Maybe a bit more for France where I lived for 17 years, but even there I hesitate.
B. The first coherent answer to my questions – what would Judge Barrett say?
i. The unseen and unheard
I thought Chapter 6 of Originalism and the Good Constitution was the most complete attempt I have seen of addressing the Achille’s heel of originalism – the unrepresentative nature of the Constitutional dialogue at the time of the Founders and Framers due to blacks being enslaved and therefore their voices not only being unheard but simply being unseen and unrecorded. White men without property and women being unrepresented are other groups at that time, among still others, which I will get to in due course.
I imagine a black manservant in Philadelphia passing around tea or coffee to these persons debating much in the way it was done in a film on Colonial Williamsburg that was shown to my Business School class as a case study back in 1980 as we tried to analyze across the 800 first-year students a business strategy for Colonial Williamsburg. For I had been troubled the night before with the film given to us where you had the Founders and Framers discussing freedom with black manservants silent in all this passing around the libations that were loosening the tongues of these white male Founders and Framers. I called my sister that night and she encouraged me to speak up. During the final plenary with the management of Colonial Williamsburg, during the Q and A, I turned to my French classmate – an older fellow – and asked him whether I should blow up this discussion. He said, “Go ahead.” And so I did by asking to what extent in their work they were providing a true image of the enslaved person experience at that time as part of educating the visitors.
You could have heard a pin drop in that auditorium while at the same time you would have thought 800 people had just suffered whiplash in a car accident as their heads whipped around to see who had asked that question. As the corporate officer with the mic passed the mic to another corporate officer who walked slowly toward the podium there was an awkward silence. He gave a rather bland corporate-speak response and I tried to take the issue to a higher level by saying that they have an opportunity to heal the nation with what they do and they should take advantage of it – or something to that effect. Got a bit of applause. I have heard that since then they have placed more emphasis on expressing the enslaved person experience which has met with mixed reviews as it clearly does not lull all visitors in to beatific certainty about the Founders and Framers greatness. It somewhat dents the typical tourist person enamored of the myths of the greatness of these persons has a simplistic vision of them that denies this fundamental attribute of depravity that they had. And, with the DNA of one of them in me, I know of what I speak.
Yet, in writing this, I did not think that I was going to digress to that Harvard Business School moment, yet that is where the muse took me. Maybe with good reason or maybe it is just a digression, but I trust the muse so I plunge forward.
ii. The crisis of legitimacy
Chapter 6 of Originalism and the Good Constitution posits and discusses three solutions to this original sin: a new Constitution, judicial correction, and judicial updating a more aggressive form of judicial correction. And it points out that 13th, 14th and 15th Amendment originalism, if properly applied might have gone a long way to resolving the problems that were caused by the subsequent living constitutionalism that enshrined segregation.
As to a new Constitution, I am not as skeptical about it as Professor Rapaport and Professor McGinniss. The French are at their Fifth Republic and they seem to have survived pretty well those processes of constitution-making. I think there is a bit of fear of tinkering and the unleashing of inimical forces in that setting. But, I also think there is the dilemma of deciding who in fact would be those persons who would be representative of America to do such a draft. With all the perversions of gerrymandering and other ills that afflict the American body politic, the process of who goes to the Convention would be a huge battle. But, that is not insurmountable. At the end of the day, the construct that comes out will have at least a chance of being seen as more representative than the old Constitutional Convention was.
As to the pre-Civil War Constitution, my personal view (notwithstanding this initial profound and sometimes feels fatal defect) is I think very Madisonian – even though I despise him for not freeing his slaves. I have come to see the separation of powers and federalism slicing up state power and creating spaces of competition between the powers at each point in it as a means to the end of providing a double security for at least some rights of the people that Madison discussed. Having states weigh in against the federal government (or the federal government weigh in against states) I think is a great insight as opposed to having one central government which – if controlled in all three branches – could really do some super repression to the rights of the people whatever their hue or gender or sexual orientation. The capacity to capture government by private interests for their own benefit is forced to be more complicated than in a non-federal state.
I also accept that theories of constitutionalism whether originalist or living constitution (whatever those terms mean in whatever version of them) only just modestly address the typical state responses to any movement especially movements from below which are four (Alberoni, Movements and Institutions, 1984): repression, making the movement think it is fantasy, cooptation, or just killing people. All four have been deployed at or against African-Americans in all periods.
With the idea of African-Americans having a legitimate reason to not pledge fealty to the pre-Civil War Constitution – much in the same way that the English imposed non-representative first Indian Constitution would not be adhered to by the unrepresented there – was a recognition of a legitimate dissent possibility. At the same time, it did not go as far as Justice Scalia’s admonition to me to mount the barricades – put another way, resort to violent protest as in May ’68 in Paris. And by opening up that alternative to violence, I thought Professor Rapaport and Professor McGinniss expanded the discussion for myself beyond Justice Scalia’s quips on “the People made the Constitution” and “you need to get over slavery”.
And to bring this home, this colloquy in Faneuil Hall of Frederick Douglass with Sojourner Truth encapsulates in the Narrative of Sojourner Truth the tension between violence and something else in that legitimate dissent to the slavery Constitution and its aftermath.
Douglas had been describing the wrongs of [towards] the black race, and as he proceeded, he grew more and more excited, and finally ended by saying that they had no hope of justice from the whites, no possible hope except in their own right arms. It must come to blood; they must fight for themselves and redeem themselves, or it would never be done.
Sojourner was sitting, tall and dark, on the very front seat, facing the platform; and in the hush of deep feeling, after Douglas sat down, she spoke out in her deep, peculiar voice, heard all over the house, “Frederick, is God dead?”
Sojourner Truth is obviously saying that if God is not dead, then there was hope other than it coming to blood.
iii. Another way through the briar patch
It is possible to hold a view that does not speak to “consent” of the governed when those are not represented. That other view is more of a question of the extent of acquiescence or resistance by those who were not represented to that Constitution or the product of that Constitutional structure as applied. This speaks to a broader vision of the agency of African-Americans than I think do Rapaport and McGinnis in recognizing African-American persuasive assertions of Constitutional illegitimacy and Scalia’s calling to (wo)manning the barricades.
So how does such acquiescence and resistance manifest itself? Maybe it manifests itself in skepticism toward each of these theories of the Constitution (originalism and living constitutionalism) because the measure is not in the method but in whether the method protects human rights or not. Does the method provide the double security to the rights of the People (not seen only in the civil rights sense that we are typically thinking of in the US, but in terms of the human rights of the people – a much broader vision).
As to the post-Civil War 13th, 14th and 15th Amendment Constitution, given Rapaport and McGinnis’s recognition (a recognition shared by anyone with even only a vague sense of segregation) in the post-Civil War period of the combined executive, legislative, and judicial oppression that countenanced also the violent repression of blacks in the South (and the North), living Constitutionalism receives its healthy critique. After all, in fact and thanks to Professor Julie Novkov of Albany Law School has drawn my attention to this, the counselor defending South Carolina in the original Brown argument pointed out that the same Congress that proposed the amendment imposed segregation in Washington, D.C. (See Ronald Turner, On Brown v. Board of Education and Discretionary Originalism, 2015 Utah L. Rev. 1143, 1173 (2015)). And, also as she notes, Loving v.Virginia 388 U.S. 1 (1967) from an originalist perspective would have a fatal flaw.I find no safe harbor for my human rights in living constitutionalism which seems to be a form of the judicial correction noted by McGinnis and Rapaport with modest judicial updating forced by the Civil War making the opening for the Civil War amendments.
iv. A moment for gender
Given African-Americans are both men and women, a moment here for gender. The bargain to prefer black male suffrage over women’s suffrage in the Civil War moment was a Hobbesian choice that I could understand created depressive overload for white women finding themselves subjugated to black men. How intolerable that must have been to feel. Yet the black women in the suffragette movement that are only recognized more recently remind us of the possibility of seeing that women solidarity being able to bridge that race chasm. The gender flaw that was supposedly resolved with the 19th Amendment of course did not (was that originalism or living constitutionalism’s fault?). Yet again, the full force of what that amendment could have meant was limited by the combination of executive, legislative, and judicial action in limiting it seems.
What a mess.
v. Higher law originalism
Now one form of the originalism approach is to think in terms of higher law with the integration of the Declaration of Independence
. It did strike me that higher law terminology referring to a document speaking of inalienable rights is really just an American version of masking reference to human rights – rights that are inalienable because one is human. Whether the state recognizes these rights is only a secondary point of discussion. The existence of these rights is posited as self-evident. The contours of them are evolving as is the extent of the State (capital S) recognizing of them within its territory.
I found this appeal to higher law a sad tribute to the relentless efforts of not framing the American treatment of Black people inside of the international human rights framework exhibited in the Bricker Amendment
attempts in the 1950s in reaction to our signing of the Genocide Convention
(feared by the powerful Southern Democrats as a method to attack segregation or more euphemistically “destroy the Southern way of life.”) To me it is a false type of American exceptionalism to intersperse words of “higher law” when as the outsider looking at it one sees the evident streams of human rights development being in that paean to something outside the Constitutional document and system.
What further nags at me in this discussion (and this might be considered an unfair criticism because it does not stay in the traces of Black/White race relations) is that the Constitution as applied problem is broader than Black and White. We can look to the treatment of Hispanic-Americans, of Native-Americans, of the Asian-Americans, of the selective approach to allowing immigration if one thinks of groups oppressed within this Constitutional structure. Even if not having been enslaved, the oppression countenanced by all branches to some degree at the federal, state, and local did not provide the double protection of the rights of the people. But, I am not sure that is a fault of the Constitutional structure as much as it is the fault of men.
vi. Enter humans again
Put more simply, the famous LBJ aphorism from the mid-1960s nails it on the head for America.
“I’ll tell you what’s at the bottom of it,” he said. “If you can convince the lowest white man he’s better than the best colored man, he won’t notice you’re picking his pocket. Hell, give him somebody to look down on, and he’ll empty his pockets for you.”
The White/Black oppression that flows from this attitude is the perversion we have to continually come to terms with. And, in the white community, in my unscientific observation of what white people have been going through here in the US over the past 64 odd years, significant numbers of whites are coming to see how they are being played by this game. The Lee Atwater increased abstraction for the benefit of hurting those who one sees as inferior is being to some extent unmasked.
In a sense, this reminds me of the French experience with the extreme right when center-right candidates were taunted as to whether they would make alliances with the extreme right.
This view is pretty bluntly put by LBJ as he was wont to do, but really there are so many layers and ways of this view being played inside the US system. And it impacts all – not just whites but also imbibed/resisted by Black people and all kinds of Americans. It is like water in the ocean for fish.
A couple of wonderful examples of the sickness are here in what the KKK is doing in Virginia during the current election with KKK Social Visit Cards and in living memory, the experience of black people long before George Floyd, described in particular by Professor Vernellia Randall’s memory in Driving While Black: Race Space and Mobility in America.
And, once again, not staying in those traces, the complexities that come inside this aphorism when one replaces white and Black by so many other categories on religious, or other ethnicities, or income, etc, gives a sense of this unfortunate bug that some see is a feature. They see it as a feature because they are able to exploit it to their advantage as they pursue their happiness.
C. Human rights (slight return)
So, at the end of the day, I am left with human rights and a rule of international law that states that no state can extract itself from its international obligations through its domestic law (meaning its constitutional system all the way down to the local level). When does a person acquiesce providing legitimacy to that Constitutional structure and when does a person resist that Constitutional structure? It seems to me that the answer is not in originalism method or living constitutional method but in a more substantive view of whether human rights are being recognized and protected. That outcome for me is consistent with what Madison talks about and counters the kinds of depravity that were exhibited by slave-owning founders and framers and subsequent oppressors. It allows me to retain my legitimate dissent without violence as I acquiesce when my human rights are protected and resist when they are not.
Now there is another critique of these human rights as being a Western phenomenon being imposed on a heterogeneous world where we get into discussions of individualistic vs. communitarian system etc. In my experience, the proponents of that questioning of human rights have been for the most part from the dominant groups in their states as opposed to the least of these. So I tend to be a bit suspicious of those paeans to difference while at the same time having to recognize even grudgingly that there are “margins of appreciation” due to the specificities of states and their cultures.
In this sense, Rappaport and McGinnis fall short of what could be a more universalist discussion than just of the African-American and the Women’s experience that they do. But that might be for their next book.
I regret that when John McGinnis came to speak at Toledo I was not chosen by the students of the Federalist Society to debate him – though I had expressed interest. John and I know each other from high school, college, and were in first-year law school together. I would have enjoyed engaging with him on his book with the students at my school. I know it would be civil for I have genuine affection for him, even though I disagree with many things he writes (“raw international law?” really John?).
D. Back to Judge Barrett
So I wish that Judge Barrett would be a part of our little listservs here to help her have a little bit of humility about the method she has chosen from the toolbox. As they say, for a person who only has a hammer, everything is a nail.
Now, I should mention that I sent my questions to Senator Booker and Senator Harris through their systems with the hope that these would be asked of Judge Barrett. I have not seen them asked and once again as with Justice Scalia, they remain unanswered by those at the highest levels of the Judiciary, to whom we are asked to defer.
Acquiescence sometimes, Resistance sometimes. But vigilance always. You cannot bargain away again my human rights.
Benjamin G. Davis is a Professor of Law at the University of Toledo College of Law.
Suggested citation: Benjamin G. Davis, One Question I Would Like to Ask Judge Barrett, JURIST – Academic Commentary, October 14, 2020, https://www.jurist.org/commentary/2020/10/benjamin-davis-one-question-barrett/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org.
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