"Originalism and Original Exclusions"

Mark Stein chmyankel at live.com
Wed Oct 14 15:13:00 PDT 2009

I have posted the above-titled article on SSRN at

It is forthcoming in Kentucky Law Journal.  I welcome any comments.

Here is the abstract:

this article, I consider how the interpretation of today’s Constitution
should be affected by the antebellum Constitution’s accommodation with
slavery and by the limitation of the franchise, at the time of the
antebellum Constitution, to a small minority of the adult population. I
refer to these defects in the antebellum Constitution and the political
system that produced it as “original exclusions.” 

In view of
these original exclusions, the mere ratification of provisions of the
antebellum Constitution cannot imbue them with sufficient moral
legitimacy to override contemporary statutes. Thus, a justification for
originalism based on notions of popular sovereignty must fail. The
original exclusions also straightforwardly defeat the argument that
originalism achieves desirable results because the Constitution was
produced under supermajoritarian voting rules. In fact, as the
Constitution is so hard to amend, and as there has been moral progress
since the time of the antebellum Constitution, it makes sense to assume
that the original meaning of some remaining antebellum provisions is
morally retrograde and undesirable. 

The progressive
elimination of the original exclusions was accomplished, in part,
through nonoriginalist means and has increased the moral legitimacy of
the Constitution. As the moral legitimacy of the Constitution derives,
in part, from past nonoriginalism, future nonoriginalism should require
less justification.

There are some cases in which the text or
original meaning of a constitutional provision was plausibly affected
by an original exclusion. There are also cases in which application of
a constitutional provision specially affects a previously-excluded
class. If one or both of these conditions apply, the originalist
position becomes even weaker. 

Most fundamentally, originalism
is objectionable because it seeks to fix the meaning of antebellum
provisions in the legal and political culture that produced the
original exclusions. 


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