Two Visions for the Constitution Stand Before Us, But It’s Not a Hard Choice
It has been roughly one year since two seismic events in the history of the U.S. Supreme Court: Justice Ketanji Brown Jackson (“KBJ”) became the first Black woman confirmed to be a justice on the Supreme Court and, just a few weeks later, Justice Samuel Alito’s leaked opinion revealed to the nation the Trump Court’s plan to eliminate a constitutional right to abortion.
Because of the Court’s ruling in Dobbs v. Jackson Women’s Health Organization, a disproportionate number of Black women would soon be forced, without recourse, to carry pregnancies to term against their will — in many cases, by the very same states that fought a war to defend their right to hold KBJ’s ancestors in bondage. To many of us, the expression “it was the best of times, it was the worst of times” never rang truer.
But, that staggering contrast also presented a choice to this nation: Do we want to follow Alito’s lead and bind our government to the past, prohibiting new understandings from ever taking hold? Or do we want to embrace Jackson’s vision of a Constitution that recognizes all of the people, including those who were not given the right to self-determine? These two events force us to reckon with which vision for the Constitution we want to embrace.
Alito’s eventual opinion in Dobbs was the first time that the Court removed a right from the Constitution’s protection since the anti-Black Civil Rights Cases. To reach this holding, Alito transported Americans to a time before even the founding generation and looked to the wise expertise of one Sir Matthew Hale. Hale was an English judge whose 17th century understandings of civil rights and bodily autonomy were so evolved that he invented what’s known as the “marital rape exception,” ensuring no husband could ever be punished for raping his wife. He also sentenced at least three women to death for being witches. In other words, originalism’s time machine took us to an even more absurd place than anyone could have imagined.
A sensible majority on the Court would have distanced itself from such noxious appeals to history, as Chief Justice John Roberts tried to do in his concurrence. But the Trump Court is beyond the bounds of decency as well as responsible constitutionalism. Justice Clarence Thomas urged greater extremism, preparing the Court to leverage Dobbs to undo much of the 20th century’s progress: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [consensual sexual acts], and Obergefell [same-sex marriage].” In other words, Thomas wants us to take originalism’s time machine and never return.
Jackson points us in a different direction.
In two different sets of cases this year, Jackson has seized the opportunity during oral arguments to emphasize an inclusive reading of the Constitution. In the first case, Alabama defended its decision to redraw its maps to only have one majority-Black congressional district instead of the appropriate proportion of two — a clear violation of the Voting Rights Act. The state asserted that the law must be enforced in a color-blind way, insisting that paying close attention to race, discrimination and history violated the Constitution.
Not so, countered Jackson. The 14th Amendment, she explained, was specifically written to protect Black citizens who were newly freed from slavery but being crushed by discrimination and hate. “The Framers themselves adopted the Equal Protection Clause, the 14th, the 15th Amendment, in a race-conscious way,” she reasoned. “[T]hey were, in fact, trying to ensure that people who had been discriminated against, the Freedmen…during the Reconstruction period were actually brought equal to everyone else in the society.” To claim that the 14th Amendment’s promise of equal protection must somehow be blind to race, Jackson intimated, would gut the clause of all its meaning and power — and undo the very progress it was designed to advance. After former President Abraham Lincoln and the Reconstruction Era, we would no longer bend to slave power and states’ rights; instead, we would take all necessary steps to ensure that “We the People” meant ALL the people.
Though she made reference to history, Jackson’s approach was neither originalist, nor even progressive originalism. Originalists believe that only the legislators who drafted the law and the authorities on whom they rely matter in interpreting that law. In other words, for most of our history, only the voices of land-owning, white men have anything to tell us about constitutional tradition and practice — hence, Sir Matthew Hale. Jackson, by contrast, calls on us to adopt an interpretive method and constitutional vision that looks to include all of the voices in our constitutional tradition.
In one of the cases challenging higher education affirmative action policies, Jackson again invoked the freedmen and women. She stressed how enforcing color-blind constitutionalism would prevent a Black student from sharing his story (and those of his enslaved ancestors) given that his story “is in many ways bound up with his race and with the race of his ancestors.” Again, emphasizing the presence and moral worth of otherwise hidden figures was not accidental. Not since former Justice Thurgood Marshall sat on the Court have the experiences of the freedmen and freedwomen been so plainly and powerfully evoked in the defense of their descendants — and all those who were silenced in previous generations.
This is where the battle lines are drawn. In deciding whose history and voice matters, we are also contesting whose constitutional vision will prevail. Do we prefer to hear from the likes of Hale to determine our constitutional future or do we look to who we are as a people now and follow the Constitution in the direction it pointed us in the wake of the atrocity of racial slavery and a brutal civil war?
Jackson’s preference is clear. At a White House celebration following her confirmation, she quoted the poet Maya Angelou: “Bringing the gifts that my ancestors gave, I am the dream and hope of the slave.” She is proving to be the dream and hope of every person who believes in a Constitution by and for all of us.
Rakim Brooks is the president of Alliance for Justice and a public interest appellate lawyer. As a contributor to Democracy Docket, Brooks writes about issues relating to our state and federal courts as well as reforms to our judicial systems.