Wednesday, February 25, 2009

Howe on Slavery as Punishment and the Original Public Meaning of the 13th Amendment

Slavery as Punishment: Original Public Meaning, Cruel and Unusual Punishment and the Neglected Clause in the Thirteenth Amendment is a new paper by Scott Howe, Chapman University School of Law. Works on constitutional originalism are not always a good fit for the Legal History Blog, but this paper seriously engages the secondary historical literature, for example on forced labor after the Civil War. Here's the abstract:
Steadfast originalists agree that the original meaning of our constitution's language, once found, should be followed, even when it leads to unhappy outcomes. Yet, in a famous lecture in 1989, Justice Scalia, a leader in the modern originalist movement, cast doubt on the duty of fidelity to originalism. He asserted that the originalist judge can appropriately avoid outcomes that are "too bitter" either by deferring to precedent or by temporarily abandoning originalism. Ironically, libertarian and liberal originalists have been among the most dismissive of Justice Scalia's faint-heartedness. They contend that the problem is the narrow approach to originalism that Justice Scalia and many other conservative originalists employ. Libertarian and liberal originalists tend to conclude that an abstract clause in the constitution should be understood in a broad way that allows for its evolving application over time rather than narrowly, in accordance with the original expected application. On this view, they assert that originalism, properly employed, will not produce the kind of grossly objectionable results that caused Justice Scalia to be faint of heart. Building on this assumption, they have also offered a new kind of normative justification for steadfast originalism. They assert in essence that the system of government that our constitution created is legitimate, in that it adequately protects our rights, and that steadfast originalism is simply the best way to preserve the legitimacy-enchancing features of the document. However, this article challenges the assumption of the libertarian and liberal originalists by focusing on relatively specific constitutional language that courts and scholars have long neglected. That language appears in the thirteenth amendment, authorizing slavery as a punishment for crime. The article shows that the original public meaning of this clause, indeed, leads to abhorrent outcomes, including the emasculation of many modern protections grounded on the eighth amendment. The article thus reveals why the legitimacy-enchancing theory for steadfast originalism is ill-founded. It also reveals that the negative implications of Justice Scalia's comments for originalism as a coherent interpretive method cannot be dismissed simply by a move within originalism away from a focus on original expected applications to less confining measures of original meaning.


Shag from Brookline said...

"Works on constitutional originalism are not always a good fit for the Legal History Blog, ...."

Why not? Shouldn't legal historians question works on originalism (or challenging originalism) based upon what "history" reveals of the various versions of "originalism" (and challenges thereto)? Consider Lund's attack on portions of Justice Scalia's Heller decision as not reflecting "history" in many regards. Neither originalists nor living constitutionalists should be unchallenged, when appropriate, by legal historians. I look forward to this Blog, the Legal Theory Blog and the Balkinization Blog for leading me to interesting articles on our Constitution. Legal historians have much to offer in this regard and should not take a back seat to constitutional scholars.

Mary L. Dudziak said...

I agree with your underlying point: the historical turn in constitutional interpretation makes the role of legal historians in constitutional studies more important than ever.

At the same time (and the point of my caveat in the above post), not everything that calls itself "originalist" falls within the purview of this blog: works that seriously engage legal history.

This blog has covered much originalist scholarship -- note that there has long been a label for "originalism." However not all originalist scholarship seriously engages either the secondary literature or primary sources in legal history. Some papers are instead advocacy pieces that cherry pick limited historical sources, and then claim to be historically grounded, when instead there's less than you'd expect from a good undergraduate history paper. (There are papers like this in other areas of legal scholarship as well.) Other papers may be excellent works of constitutional theory, but that don't seriously engage the history of the founding period.

When in doubt about whether to post something, I usually look at the footnotes and sources, and I err on the side of inclusion whenever a work seriously engages sources that legal historians would want to know about, or perhaps makes an important methodological intervention. And of course I post abstracts for articles that I disagree with. I hesitated with this particular paper because -- other than limited press sources -- it does not rely on primary sources. Nevertheless, a wide range of secondary works on forced labor in the footnotes makes the paper a good fit for the blog.

As with most areas of scholarship, readers will benefit from reading a variety of blogs that will pick up a range of sources. On originalism, the Legal Theory Blog and Balkinization are great choices.

Shag might prefer for us to post and critique everything on LHB, but then blogging would become a full-time job, and we would be unable to do our own work. Perhaps there should be a blog dedicated only to originalism? If one exists already, please post a link in the comments.