Note: this is our third and last post reviewing Larry Solum’s new paper “Surprising Originalism.”
Thus far, we have assessed the strengths and weaknesses–both “the good” and “the bad”, so to speak–of Larry Solum’s defense of constitutional originalism. Today, however, we survey “the ugly”. Don’t get me wrong. Professor Solum’s “Surprising Originalism” is an excellent paper overall, but he commits a cardinal sin. He neglects to mention the infamous “Three Fifths Compromise” enshrined in the original Constitution [look it up!], a constitutional provision that should give all good faith originalists like Solum some pause. (To his credit, Solum addresses the constitutionally-problematic case of Brown v. Board of Education, the most famous “Living Constitution” case in U.S. history, and his arguments are actually pretty persuasive.)
But let’s return to the Three-Fifths Clause. In short, if the meaning of the Constitution is fixed for all time, and if judges are bound by this fixed meaning, then what are we to make of the peculiar provision in Article I, Section 2 of the Constitution that counted the total number of slaves in a State as three-fifths the number of free inhabitants of that State? One could certainly argue that this odious provision was amended out of the Constitution by the post-Civil War Reconstruction Amendments–the Thirteenth Amendment (ending slavery) and the Fifteenth Amendment (giving all citizens the right to vote)–, but what about Native Americans or today’s second-class U.S. citizens in Puerto Rico and in other insular possessions of the United States? If you are an originalist, doesn’t the Three-Fifths Clause still apply to them?
Or to use a different (i.e. less racially-charged) example, consider NASA, the U.S. space exploration agency created in 1958. NASA was officially created when President Dwight D. Eisenhower signed the National Aeronautics and Space Act into law, but does the Congress have the enumerated power under Article I of the Constitution to create a space agency? After all, the text of the Constitution creates a national government with defined and limited (i.e. enumerated) powers, and none of the powers set forth in Article I, Section 8 even remotely refer to space exploration! If the meaning of Article I is fixed (based on its public meaning in 1789), then the unconstitutionality of NASA is a huge embarrassment for originalism!