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Justice Jackson offered Democrats a road map for securing equal rights

Tying the fight for equal rights to the founders and the Constitution has worked before

Associate Justice Ketanji Brown Jackson poses for a portrait on Friday. (J. Scott Applewhite/AP)
7 min

On Tuesday, Supreme Court Justice Ketanji Brown Jackson made headlines and drew praise by invoking the 13th, 14th and 15th amendments to the Constitution — the Reconstruction Amendments — during oral arguments over Alabama’s alleged violation of the Voting Rights Act.

Drawing on 19th-century sources, including speeches and congressional committee reports, Jackson explained that, when she examined “what the framers and the founders thought,” it became evident that the authors of the 14th Amendment’s equal protection clause knew that securing racial equality did not necessarily mean legislating in a race-blind way. Alabama’s new congressional map, in short, did not match the intent of those who devised the amendment.

Jackson’s move surprised court watchers because originalism is usually associated with the contemporary conservative legal movement — an expanded Second Amendment, the rollback of women’s reproductive rights and more. One writer referred to her questioning as a rare example of “progressive originalism” — trying to divine the Constitution’s original meaning from the historical record to guide liberal policymaking and jurisprudence.

But in reality, such a version of originalism isn’t new. Instead, Jackson’s constitutional interpretation joins a storied tradition in the struggle for equal rights. First abolitionists and later the “Radical Republicans” who shaped Reconstruction — the very people whose ideas Jackson cited — tied their movement to the founders’ supposed original intentions. By resurrecting this tradition, Jackson isn’t simply co-opting a conservative legal philosophy. She’s also giving the Democratic Party a road map for effective constitutional politics.

Maybe the most enduring quotations about the Constitution’s relationship with slavery come from William Lloyd Garrison, who called the document a “covenant with death” and an “agreement with hell.” But while some abolitionists like Garrison scorned the Constitution, many others knew that they could not afford to cede the legacy of the founding to enslavers. The early 19th century was, according to historian Eric Foner, a time when people “cared deeply about constitutional interpretation.” Whatever flaws the founders had, these abolitionists understood that if their goal was to build power, they had to connect their efforts with the founding.

They took a variety of approaches. William Jay, son of founder John Jay and a prominent figure in New York antislavery politics, focused much of his writing during the 1830s on trying to wrest the legacy of the founders back from proslavery ideologues who had co-opted it for their political project. He argued that the founders had formed a government “to establish JUSTICE, and secure the blessings of LIBERTY” — goals that were incompatible with slavery.

It was only Jay’s enslaving contemporaries, he argued, who had tilted the government toward protecting and expanding slavery. When Jay wrote an influential biography of his father, he carefully cherry-picked evidence to make the elder Jay’s gradual antislavery beliefs align with the radical edge the movement had developed by the 1830s. Sure, this helped the Jay family legacy. More importantly, though, it gave the antislavery movement a story to tell about themselves — one where they were the true keepers of the founders’ legacy. This story gave them legitimacy, helped them win followers and led to vital political power.

While some like Jay looked to the founders as individuals, others grounded their case in an assessment of how the public understood the Constitution at the moment when they consented to its authority — what Justice Antonin Scalia helped define a century and a half later as the pursuit of original public meaning. This was particularly useful for abolitionists when, as scholar Simon Gilhooley has recently noted, they were forced to reckon with the fact that many of the founders themselves were enslavers. For example, abolitionist William Goodell argued that it did not matter whether the founders were evil men “bound by the wicked intentions” to expand and protect slavery. What mattered was the “righteous words they were obliged to employ, in order to make their document acceptable to the People.”

This attempt to tie their movement to the founders and the Constitution itself helped antislavery activists and politicians build power and shape policy. Frederick Douglass understood this well. In 1857, he told a crowd in New York that “The Constitution … give[s] us a platform broad enough, and strong enough, to support the most comprehensive plans for the freedom and elevation of all the people in this country, without regard to color, class, or clime.”

In the 1850s, the most effective messengers of that broad and strong platform quickly became the new Republican Party. When compared to many abolitionists, the new party’s platform was relatively moderate. Yet the Republicans adopted key aspects of the abolitionists’ message about the founding and used them to build power and eventually to win support for the Reconstruction Amendments to the Constitution.

Take, for example, Rep. James Mitchell Ashley (R-Ohio), who was elected to Congress in 1859. Ashley came of age in Ohio as a Jeffersonian Democrat committed to the rights of the working man, before abandoning the party over its connection to slavery. He held on to his admiration for Jefferson and his ilk, though. In the words of scholar Rebecca Zietlow, Ashley “was either unwilling or unable to imagine that the Founding Fathers, whom he so admired, had sanctioned slavery, which he so hated.” Ashley found solace in William Jay’s style of antislavery originalism. “If the government was organized for any purpose,” he told Congress in 1861, “it was to secure the blessings of liberty … and not to enslave any man, nor to become the defenders of slavery.” Ashley introduced a bill in 1863 to create what would become the 13th Amendment, abolishing slavery.

Same, too, with John Bingham, also of Ohio. Bingham was the chief author of the 14th Amendment, which established and protected birthright citizenship and its attendant rights, regardless of race. Justice Jackson cited Bingham’s words directly to capture the original intent behind the equal protection clause. Bingham also built his argument on originalism, though he adopted Goodell’s version, wrapping his effort in the collective public meaning of the Constitution. Because Black people were part of the nation at its founding moment, he told Congress in 1859, and because they worked “to achieve the independence of the country by the terrible trial by battle, it is not surprising that the Constitution of the United States does not exclude them from the body politic.”

These tactics, in the hands of Radical Republicans, played a major role in selling the expansion and protection of rights that came with the Civil War and Reconstruction. They allowed Republicans to frame the revolutionary changes underway as a vindication of the founding and to paint their opponents, the enslavers, as aberrations in the arc of American liberty. And, by rooting their movement in the Constitution’s authority, Republicans ensured that the gains they sought would be codified in durable constitutional amendments.

This tradition of using the founders’ intent and the original meaning of the Constitution to crusade for equal rights has been forgotten, swept aside by conservatives’ adoption of this philosophy over the past 40 years to undo the foundational liberal decisions of the Warren Court. Their efforts have produced significant scrutiny about originalism’s legal soundness. Any theory of jurisprudence will; at their essence, such philosophies exist to justify political decisions.

But what the conservative legal movement has known since the Reagan administration, and what the Republican Party knew nearly 170 years ago, is that originalism has the potential to make effective politics. It remains to be seen whether Democrats will recognize the value of Ketanji Brown Jackson’s powerful rhetoric, or if it will remain relegated to poignant but toothless 6-3 dissents. But she’s offering Democrats a road map to making liberal policy prescriptions far more popular.