Originalism: Historic and Philosophic Roots

So one mistake often that sometimes Originalists make and is often attributed to Originalists is that Originalists are really only interested in the Constitution of 1789 and the Bill of Rights. And that can't be good Originalism. The 13th, 14th, and 15th Amendments are extraordinarily important Amendments. Unfortunately, one of the reasons that I think they were not given their full weight was the sense that they really weren't quite as important as the original Constitution. But Amendments can fundamentally change structures and we need to read the Constitution with that in mind. The Constitution of 1789, even as amended by the Bill of Rights, which showed that many people thought it initially needed to be amended almost immediately, had many grave defects. The greatest of those defects, of course, was that it didn't eliminate slavery. The original sin of the American polity. So it's crucial that the Constitution was amended by the 13th, 14th, and 15th amendments and these were, in some sense, a second founding of the nation that gave African Americans the rights that had been denied to so many of them. Then of course the 19th Amendment, which gives women the right to vote, makes the polity a more inclusive polity. And the other amendments as well. The technological change and other kinds of changes led to important changes in the 16th, and 17th Amendments, the direct election of senators, the income tax and when some people who are conservatives complain about the greater power of the federal government, they're really complaining about the Constitution. Because the federal government was given a lot of greater authority through having a lot more money to spend. And that needs to be recognized. That was a decision of the Amendment processes is a decision now encoded in our Constitution.