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04/12/2021

Stern and TerBeek on The History of Originalism
Mike Rappaport

Following the lead of Senator Ed Markey (who claims that “Originalism is racist. Originalism is sexist. Originalism is homophobic.”), Slate writer Mark Joseph Stern interviews Calvin TerBeek about his new article claiming that originalism is rooted in racism. There is so much that is problematic about this little interview that is hard to know where to start.  So let me just focus on the key points.

TerBeek claims that modern originalism grew out of segregationists' attempt to oppose Brown v. Board of Education.  TerBeek then traces the theory’s growth from that point through Raoul Berger and Robert Bork, and then to more recent originalists.

1. The first – and main problem with this view – is that it appears to commit the genetic fallacy – the notion that the source of an idea determines its validity. Suppose that modern originalism did originate in people who were racists. That would not show originalism is mistaken.  Nor would it show that there are no good nonracist reasons for originalism or that current originalists are racists. 

I was completely unaware of this segregationist history when I became an originalist back in the 1980s.  I became an originalist based on rule of law ideas that I had discovered in the political philosophy of Friedrich Hayek.  There was no racism there. 

The question is not whether some people, at some point, used mistaken understandings of originalism to support their segregationist ideas.  The question is whether originalism can be justified.   

2. In fact, if one wants to pursue the roots of theories, one often finds racist views. Progressivism and the living constitutionalism it promoted were championed by academic and President Woodrow Wilson, an awful racist. Does that refute progressivism and living constitutionalism?  Surely not. 

3. TerBeek’s argument is peculiar. He claims that originalism grew out of opposition to Brown. But these days, most originalists believe that the original meaning justifies Brown.  And nonoriginalists criticize originalists for claiming that Brown is consistent with the original meaning.  If originalism is racist, then one might imagine that originalists would be against Brown, not in favor of it.  In fact, many originalists see Jim Crow and Plessy v. Ferguson as based on nonoriginalist readings of the Constitution.    

(I made a few minor word changes to the post after publication)