Professor Mark Stein of Harvard Law posts an interesting article on SSRN. H/T Legal Theory Blog.

In this article, I consider how the interpretation of today’s Constitution should be affected by the antebellum Constitution’s accommodation with slavery and by the limitation of the franchise, at the time of the antebellum Constitution, to a small minority of the adult population. I refer to these defects in the antebellum Constitution and the political system that produced it as “original exclusions.”

In view of these original exclusions, the mere ratification of provisions of the antebellum Constitution cannot imbue them with sufficient moral legitimacy to override contemporary statutes. Thus, a justification for originalism based on notions of popular sovereignty must fail. The original exclusions also straightforwardly defeat the argument that originalism achieves desirable results because the Constitution was produced under supermajoritarian voting rules. In fact, as the Constitution is so hard to amend, and as there has been moral progress since the time of the antebellum Constitution, it makes sense to assume that the original meaning of some remaining antebellum provisions is morally retrograde and undesirable.

The progressive elimination of the original exclusions was accomplished, in part, through nonoriginalist means and has increased the moral legitimacy of the Constitution. As the moral legitimacy of the Constitution derives, in part, from past nonoriginalism, future nonoriginalism should require less justification.

There are some cases in which the text or original meaning of a constitutional provision was plausibly affected by an original exclusion. There are also cases in which application of a constitutional provision specially affects a previously-excluded class. If one or both of these conditions apply, the originalist position becomes even weaker.

Most fundamentally, originalism is objectionable because it seeks to fix the meaning of antebellum provisions in the legal and political culture that produced the original exclusions.

In a nutshell, Stein argues that the Constitution in antebellum America yielded immoral results (Jim Crow, limited franchise, etc.). He labels these flaws “original exclusions.” Because this time period was marked with original exclusions, relying on originalism to understand the meaning of these constitutional provisions is flawed because it “seeks to fix the meaning of antebellum provisions in the legal and political culture that produced the original exclusions.”

This approach is just as applicable to antebellum America as to any period of American history. At every stage, the Constitution was ignored to yield immoral results. Think of the alien and sedition acts, segregation, exclusion of Japanese during WWII. If we ignore originalism whenever the contemporary politicians created immoral laws, originalism as a doctrine will cease to exist. Though this may be part of Stein’s intent.

Professor Solum’s reaction, after the jump. Definitely worth reading.

Professor Solum writes:

Frequent readers will not be surprised that I disagree with much of the analysis here, but this general strategy is, in my opinion, both interesting and important.  From my perspective that strategy might be characterized as follows: (1) the linguistic content of some provisions of the original constitution produced constitutional doctrine that was immoral, e.g., constitutional doctrines that endorsed slavery; (2) there were good and sufficient reasons of political morality to override the obligation of fidelity to law in these cases; (3) therefore, judges were (and still are to the extent that the continuing “original exclusions” warrant) morally obligated to depart from the original meaning of the constitution.

Assuming that this reconstruction of Stein’s argument were correct, it raises the following issue, which is discussed at length in in Semantic Originalism: in such circumstances, should judges acknowledge that their “amending constructions” are, in fact, inconsistent with the linguistic meaning of the Constitution, should they be “up front” about this–offering “transparent amending constructions”?  Or might judges “hide their cards,” offering an insincere argument that their interpretation was consistent with the text, hence offering “opaque amending constructions”?

But given the concession that the morally desirable content of constitutional doctrine is inconsistent with the original meaning (as Stein seems to concede), then it seems to me that the only way to argue that the revised doctrine is actually consistent with the text would require a direct confrontation with the arguments for the fixation thesis–Stein does not answer these arguments directly.

One more thought: Stein assumes that the semantic content of the Constitution of 1789 requires the “original exclusions,” but he does not acknowledge the substantial body of abolitionist constitutional writing that denied this assumption.  The most powerful versions of these arguments explicitly relied on what we now call “original public meaning originalism

There is much to admire in this essay, and it is definitely recommended.

My take on the issues of constitutional theory that Stein raises can be found in Semantic Originalism.  The discussion of amending constructions is found at 157-160 & elsewhere.