The Court is Becoming Racist
The Supreme Court is becoming a racist institution because it is dominated by originalists in constitutional interpretation. Originalism is inherently racist although it does not appear to be racist at first glance. Originalism is,
... a theory of the
interpretation of legal texts, including the text of the Constitution.
Originalists believe that the constitutional text ought to be given the
original public meaning that it would have had at the time that it became law.
On its surface, this sounds like a reasonable idea (although some prominent legal scholars have debunked it), and there is nothing in
the definition that appears to be inherently racist. However, the definition says that the Constitution ought to be interpreted in the way that it would have been interpreted by the people who lived in the United States at the time that the
Constitution was adopted, and that interpretation was unavoidably racist
The Constitution Was Originally Understood in a Racist Way
The Constitution of the United States was adopted in 1788.
At that time, slavery was legal in all of the 13 states. Both law and
public opinion recognized that black people could be owned as slaves, and that
view was justified by an ideology that said that white people were superior to
non-white people both culturally and biologically.
Several of the most prominent members of the Constitutional Convention were slaveholders. George Washington, James Madison and
Thomas Jefferson all owned slaves. Alexander Hamilton did not own slaves, but he
married into a slave-owning family, and as a young man on the island of Nevis in the Caribbean,
he worked for a merchant who imported slaves. The Constitution itself included
the provision that only 3/5 of the slaves should be counted in determining the
voting population of a state.
There can be no doubt then that the American people of 1788 must have read and understood the Constitution as condoning slavery and the racist ideologies that underlay it. Moreover, the racist understanding of the Constitution persisted for many years. The Dred Scott decision of 1857 showed that just before the Civil War, the Supreme Court still shared the racism of the writers of the Constitution. The 14th Amendment - ratified in 1868 - established that anyone born in the United States was a citizen entitled to the equal protection of the law, but the decision in Plessy vs. Ferguson, which established the “separate but equal” doctrine, was decided decades after the passage of the 14th amendment and showed unmistakably that the racism that underlay the “original public meaning” of the Constitution still characterized its interpretation.
Thus, the original public meaning of the Constitution was unavoidably racist. It was written in a racist society by people who owned slaves. American racism continued to dominate the interpretation of the Constitution for many years after the Constitution was adopted. Although the writers of the Constitution espoused ideals of universal equality and freedom that continue to inspire us today, they understood those ideals very differently from the way that we understand them today.
Our Understanding of the Constitution Has Changed
Only since the
Second World War has our understanding of the Constitution gradually changed. Pres.
Truman integrated the armed forces in 1948, and the “Brown” decision that
outlawed segregation in schools came in 1954. The Voting Rights Act came in
1965. Today, we have advanced beyond the ideas of our country's eighteenth-century founders. Today, most of us understand the Constitution as being opposed to racism, and the bulk of recent jurisprudence agrees with that view.
Originalist Judges Are Driving a Return to Racism
Now, several Supreme Court Judges are returning to interpreting the Constitution in terms of its original public meaning. Lead by Clarence Thomas, our country's most prominent originalist, they want to return to the racist interpretation of the Constitution that prevailed in this country until quite recently. They want to annul the progress that we have made so painfully. They are turning the Supreme Court back into the racist institution that it once was.
