“Diverse Originalism” [?]

That is the title of this thought-provoking paper by Christina Mulligan, a professor at Brooklyn Law School. Some background: “orginalism” refers to a common sense method of interpreting the Constitution. Broadly speaking, constitutional originalists believe that the meanings of the provisions in the Constitution are fixed and stable, unless and until those provisions are amended under Article V of the Constitution. Now that we finally got around to reading Mulligan’s excellent paper, we want to say a few things about Mulligan’s important paper before we proceed with our review of Randy Kozel’s new book on stare decisis (“Settled Versus Right”). First, we think Professor Mulligan’s paper should be required reading in any law school course on constitutional interpretation. Here is the abstract:

Originalism has a difficult relationship with race and gender. People of color and white women were largely absent from the process of drafting and ratifying the Constitution. Today, self-described originalists are overwhelmingly white men. In light of these realities, can originalism solve its “race and gender” problems while continuing to be originalist? This Article argues that originalists can take several actions today to address originalism’s race and gender problems, including debiasing present-day interpretation, looking to historical sources authored by people of color and white women, and severing originalism and the Constitution’s text from their historical associations with racism and sexism. Taking these steps will not only make originalism more inclusive, but also help originalists become better at accessing the original meaning of the Constitution.

In her paper, Professor Mulligan provides several examples of what a more diverse originalism might look like, including an anti-federalist pamphlet published in 1788 by Mercy Otis Warren (pictured below) as well as a 1799 petition to Congress by the Reverend Absalom Jones (also pictured below) calling for the repeal of the Fugitive Slave Act. Her point is well taken. If we are going to be intellectually honest originalists, we need to search for and listen to a more diverse and inclusive chorus of constitutional voices. But this approach is risky … (And that’s why we love it!) Why is it risky? Because once we embrace a theory of diverse originalism, we may begin to see that the Constitution meant many things to many people. Different factions may have competing understandings of the meanings of various provisions in the Constitution …

Image result for Mercy Otis Warren    Image result for Absalom Jones

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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