Should We Abandon the Original Constitution?

Should we adhere to the original Constitution of 1789 or the Constitution of 1868?

You might be asking, “What is the difference?”

Last year, I talked about the rise of the “Progressive Originalists”, those who buttress their loose construction on a distorted reading of the 14th Amendment.

That is the Constitution of 1868, and there is no louder supporter of this position than Professor Randy Barnett.

Barnett is a “conservative/libertarian” who claims to be a “14th Amendment Originalist.”

Though Barnett does not explicitly say so, he designed his recent book on the topic to be a thorough take down of Raoul Berger’s Government of Judiciary and subsequent The Fourteenth Amendment and the Bill of Rights.

Leftist legal scholars hate both with a passion and let Berger know it throughout the 1980s. Why? Because if Berger was correct, and he was, then the entire basis of the modern civil rights movement was built on a house of cards.

In other words, these lefties don’t want to believe it because it was slaying their sacred cow. Barnett rides to the rescue, sort of.

Barnett unconvincingly argues that those who insist that the author of the Fourteenth Amendment, John Bingham of Ohio, really intended the amendment to incorporate the Bill of Rights and in the process provide the intellectual firepower for the expansive civil rights programs of the general government.

Bingham’s reputation has been revived in the last twenty years by people like Eric Foner, James Oakes, and others who insist that he was a “second Founding Father” who crafted an amendment that would transform the United States.

They are partially correct, but not because that is what the Fourteenth Amendment intended to do. It is only because that is how the federal courts have interpreted the Amendment.

Barnett calls this the correct position.

As a result, he urges “originalists” to reject the “original Constitution” in favor of the Constitution as altered by the Republican Party and the Fourteenth Amendment.

I get why. This takes the “racist” sting off the table, but it also creates its own fairy tale of interpretation.

Barnett wrote a long essay on this position and the “proslavery” or “antislavery” origins of the Constitution. It deserved a thorough review, so I will tackle it on the next THREE episodes of The Brion McClanahan Show.

Part 1, Episode 772, dropped today.