Columbia University historian Eric Foner was a guest this week on Fresh Air. He discussed his new book, The Fiery Trial: Abraham Lincoln and American Slavery. Towards the end of the interview Terry Gross asked his opinion of the originalist interpretation of the Constitution:
The originalists try to go back to the original Constitution, but they have little to say about the Civil War amendments, 13th, 14th and 15th, which actually fundamentally changed the Constitution by wrenching slavery out of the Constitution and trying to put this principle of equality in it. Many recent Supreme Court decisions by these so-called originalists completely misunderstand the original purposes of the 14th Amendment. They’ve adopted a very cramped view of it.
As I said, the Congress at that time was looking toward a broad principle of equality. But to these originalists what the 14th Amendment means to them is color blindness, which is not at all what the Congress intended back in 1866. So, in fact, the Supreme Court has been much more solicitous of the claims of white people who claim to be discriminated against by Affirmative Action or things like that, than African-American seeking greater social justice, which is what the 14th Amendment was intended to do. The greatest non-originalist point of view, which we see now, a lot in the Supreme Court, is this idea that corporations are entitled to the protections of the 14th Amendment.
We just saw this in the case about, you know, corporations being allowed to contribute as much money as they want to political campaigns because they enjoy the freedom of speech of individuals, et cetera. There’s no evidence, whatsoever, that the Congress in 1866 was thinking of corporations. That idea was tacked on 20 years later, to the 14th Amendment. If you really are an originalists, let’s get rid of the idea of corporations being protected by the 14th Amendment. But I don’t expect Scalia and these others to do that at any time soon.
Stephen Colbert calls it what it is: Original Spin…