by Akhil Reed Amar (Yale Law School)
***As this recent case, Pena-Rodriguez v. Colorado, illustrates, originalists must honor not just the original understanding of words ratified in 1787-88, but also the letter and spirit of language added by later generations of amenders. In Justice Kennedy’s words, the “imperative to purge racial prejudice from the administration of justice was given new force and direction by the ratification of the Civil War Amendments.”
This willingness to give due weight to the original vision of amending generations — Reconstruction Republicans in the 1860s, woman suffrage advocates and other Progressive Era crusaders in the 1910s, civil rights reformers in the 1960s — is what separates true originalists from false prophets. Justice Scalia, alas, frequently failed this test, especially in cases involving women’s equality and other birthright-equality claims.
Too often, Justice Scalia stopped reading. He failed to read the Constitution’s text all the way to the end — to give due weight to its transformative amendments added by post-founding reformers. ***