New body politic requires courts to look through a different lens

Samuel Damren

This is the third and final commentary in a series on Roger Taney and the Dred Scott decision.

The first commentary focused on Supreme Court Chief Justice Roger Taney’s selective and misleading findings of historical “facts” in the Dred Scott opinion. Taney used those findings to justify his originalist interpretation of the Constitution to conclude that persons of “negro African descent” were forever “unfit” to become “citizens” of the United States.

The second commentary discussed actions by Taney and President-elect James Buchanan to co-opt the checks and balances between the judicial branch and the executive and position the highly partisan Dred Scott opinion, coincident with Buchanan’s inauguration, as a full and final resolution of the slavery controversy.

That commentary referenced attempts by former President Trump to co-opt state election officials and legislators, the Vice President, the Department of Justice and others leading up to the January 6 insurrection so that Trump could remain in office despite losing the 2020 presidential election.  

In the recent 2022 election cycle, Trump opposed Republican primary candidates who had previously voted for his impeachment or who refused to support his false claim that the 2020 presidential election was rigged.  In so doing, Trump ended up supporting a number of Republican candidates who were unqualified to serve in the elective positions they sought.

Trump was criticized by some Republicans for these tactics. However, the tactics reveal another methodology to neutralize the checks and balances of democracy. By promoting candidates who are pure Trump loyalists, candidate Trump hoped to “pre-position” these operatives to overturn the results of the upcoming 2024 presidential contest if he loses again.

This commentary addresses the legitimacy of originalism as applied to the present-day “body politic.” 

This criticism is not dependent on the existence of a “bad actor” judge, such as Taney.  The argument flows from the building blocks for originalism itself.

Originalism is premised on its “reach back” to the purported “fixed” meaning of the Constitution in 1787-89. The question is whether this reach back remains a legitimate methodology for Constitutional interpretation given significant changes in the composition of the American body politic after the Civil War. The focus here is on two of those changes.

No one disputes that the function and purpose of a constitution is to serve as a framework for government, rather than an all-encompassing legal code. As a result, constitutions typically contain many statements that are more aspirational than others.  

The most important requirement for any constitution is for it to be approved.  From that perspective, aspirational phrases, omissions of particular sub-topics and wording which allows more than one interpretation act to accommodate differing interests, regional views and other concerns among the body politic.

The American Constitution was no different than other founding document in this respect.  

In his 2022 book, “Worse Than Nothing,” law professor Erwin Chemerinsky provides an example of this process based on his experience on a commission to revise the City Charter for Los Angeles.  

Chemerinsky persuasively discounts the notion that there is a single meaning fixed by the drafters’ varied intents or by so-called “public meaning” that can attach to a document negotiated in this fashion.

There is nothing surprising in this observation to lawyers who have drafted governing documents for multiple parties with competing and conflicting interests.

The historical narrative set forth by Taney in the Dred Scott opinion is an instance where it was necessary to look to information outside the “four corners” of the Constitution to determine the meaning of “citizenship.” The document itself did not provide the answer. 

Taney’s southern perspective of the relevant historical facts to answer this inquiry is not directly at odds with specific language in the Constitution. However, the wording in the Constitution could equally support a dramatically different factual narrative and conclusion by Founders and constituents from northern states. 

Unlike competing and differing meanings for citizenship under the Constitution, there was no dispute regarding the composition of the body politic that established the Constitution. The body politic was defined by who could vote. 

Women and Black slaves were excluded. They resided in the country, but were subject to white male rule.  

The 13th, 14th, and 15th Amendments to the Constitution changed the composition of the body politic to include, rather than exclude, Black men; and then it changed again when the 19th Amendment provided women’s suffrage.

After those Amendments, the legitimacy of originalism’s reach back to 1787-89 to interpret the meaning of the Constitution was severed.  

In 21st century America, it is abhorrent and inconceivable that such contradictory concepts as “life, liberty and the pursuit of happiness,” on the one hand, and the ability to lawfully enslave people because of the color of their skin or treat people unequally because of their gender, on the other hand, can co-exist. 

That abhorrent and inconceivable perspective, a fundamental part of the societal and worldview of the “old body politic” at America’s founding, was subsequently rejected by Amendments which created the “new body politic” by adding new classes of members who had previously been excluded.

It is impossible for anyone to reach back in time and convincingly assess how these now irreconcilable beliefs permeated and corrupted other perspectives of the old body politic. No poultice a court might devise can credibly isolate and remove these collateral prejudices. 

To suggest otherwise is indulging in “fictional” history. One cannot pretend that the judiciary can reach back to re-construct a “repentant” old body politic to guide present-day interpretation of the Constitution.

Subjecting new members of the body politic and the new body politic itself to the worldview and societal prejudices of the old body politic is contradictory to every sense of democracy. Yet, that is precisely what the methodology of originalism requires.

Think about it from the perspective of the new classes of members in the electorate, who now comprise close to 60 percent of the body politic and comprised 0 percent of the body politic in 1787-89 and from the perspective of the entire membership in the new body politic, who by passing the Amendments rejected fundamental parts of the societal and worldview of the old body politic.

Should the existence or extent of Constitutional liberties for the new body politic, be decided solely by reference to persons whose perspectives are fixed in the now rejected racist and sexist attitudes of 1787–89, who approve the enslavement of Black persons at the option of the states, who approve second-class citizenship for women everywhere and who never learned any better?

Think about it from a judicial perspective. Should a judge empanel a juror in a present-day civil rights case who unrepentantly holds the fundamental prejudices of the old body politic?  Sit an entire panel of such jurors? Require a plaintiff to accept such a panel?  

Should a judge who unrepentantly holds the fundamental prejudices of the old body politic be disqualified from presiding in a present-day civil rights case?  Should that judge be disqualified from hearing any case in the 21st century?

Think about it from a societal perspective. If judicial decisions about personal liberties in the 21st century are decided by reference to the long ago rejected worldview of 18th century individuals then why should those decisions, or the court making them, be entitled to respect?

In deciding personal liberties, the new body politic requires the judiciary to look through changed lens and adopt a method of Constitutional interpretation consistent with the principles and values underlying the rejection of past prejudices, not their perpetuation.


Samuel Damren is an attorney and author living in Ann Arbor.