How far originalism has come since Reynolds v. Sims

April 5th, 2016

In Evenwel v. Abbott, the Supreme Court considered the “One Man, One Vote” doctrine, articulated in Chief Justice Warren’s 1964 decision in Reynolds v. Sims. As Andrew Grossman pointed out during the Federalist Society call on the case, Justice Ginsburg’s majority opinion in Evenwel represents a triumph or sorts for originalism–the doctrine championed by her late, great colleague, Justice Scalia.

Part II.A of her opinion (from page 8-15), which focuses primarily on history, begins:

We begin with constitutional history.

In Footnote 7, Ginsburg engages in a back-and-forth with Justice Alito over the import of statements from Hamilton and Madison. And, citing Justice Scalia’s opinion in Printz, Ginsburg champions Hamilton:

Notably, in the statement JUSTICE ALITO quotes, Madison was not attributing that motive to Hamilton; instead, according to Madison, Hamilton was attributing that motive to the advocates of equal representation for States. Farrand, supra, at 466. One need not gainsay that Hamilton’s backdrop was the political controversies of his day. That reality, however, has not deterred this Court’s past reliance on his statements of principle. See, e.g., Printz v. United States, 521 U. S. 898, 910–924 (1997).

In 2011, Justice Ginsburg offered this quasi-defense of her originalism:

“I have a different originalist view. I count myself as an originalist too, but in a quite different way from the professor,” she said. “Equality was the motivating idea, it was what the Declaration of Independence started with but it couldn’t come into the original Constitution because of the odious practice of slavery that was retained,” she said. “I think the genius of the United States has been from the original Constitution where ‘we the people’ were white property-owning men to what it has become today. That it is ever more embracive including Native Americans … people who were once held in human bondage, women, aliens who come to our shores.  So ‘we the people’ has a marvelous diversity which it lacked in the beginning.”

My how far we’ve come. Consider one of the more famous passages from Reynolds (which was quoted from Gray v. Sanders):

“The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”

This is what passed for originalism in 1964, or something like that.

We’ve come a long, long way.