May 10, 2026
By Stephen Stofka
Last week, I wrote about the Supreme Court’s cutting away key portions of the Voting Rights Act. This week, I want to understand the conservative attempt to keep the country imprisoned in the sentiments and prejudices of the 19th century.
Three-quarters of the states must vote in favor of an amendment to the Constitution. It takes only a plurality of Supreme Court justices to amend the Constitution through reinterpretation. Throughout our history, the Court has acted as a second Congress, limiting or amending statutes using some judicial theory invented by one or more members of the Court. The Congress must jump a high hurdle to make substantial constitutional changes. The Court has only to step a bit higher to have the same effect.
At the Constitutional Convention, the framers underestimated the power of the judiciary so badly that they left it up to the first Congress to draft the rules. What if the Constitution had set the same three-quarters threshold for substantial changes to the Constitution? Today’s court would need seven justices to set new precedent, amend or overturn a former precedent. Key decisions of the Roberts’ court would not have met the minimum threshold.
Marbury v Madison and Roe v Wade (abortion) would have passed the test. Dobbs v Jackson Women’s Health Organization, which overturned Roe, would not have passed the test. Infamous rulings like Dred Scott v Sandford and Plessy v Ferguson would have passed the test. The 13th and 14th Amendments overturned the Court’s decision in Dred Scott. Brown v Board of Education overturned Plessy and was a unanimous decision.
Conservatives on the court often refer to customs or precedents mentioned in 18th and 19th century text. In District of Columbia v Heller, Justice Antonin Scalia used 18th century dictionaries, English common law and practices in the American colonies to understand what the words “bear arms” meant in the Second Amendment. What was the notion of self-defense in colonial times? He used this historical foundation to justify his interpretation of the Second Amendment as an individual right to carry a gun. Scalia declared that the First, Second and Fourth Amendments were pre-existing rights. The Constitution could only recognize then, not create them. Thus, it could not diminish or take away those rights.
Scalia was a proponent of Originalism, a judicial analysis which insists that modern opinions rely on the meaning of texts when a law was written, and the historical practices and statutes prevalent in that period. Originalism has a central conflict. The Constitution, the Bill of Rights and statutes written during the decades before the Civil War were based on a different understanding of rights than we have today. In the 18th and early 19th century, rights depended on each person’s status in society, their race, gender or property. Different people had to play by different rules. A historical analysis of the law must struggle to overcome those multiple standards and reach a precedent that is consistent with modern sensibilities.
The problem was that different people had different sets of rights. White people had rights that black people didn’t. A shop owner had rights that his workers did not have. Women had few rights. Under the common law custom of coverture, a married woman’s legal status was merged with her husband. She could not make a contract, own property or sue in court. The English jurist William Blackstone wrote that a husband and wife were one person in the eyes of the law.
The Declaration of Independence stated that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” In America, unlike Britain, official titles of class and nobility were forbidden, but people understood that there were roles in society, and roles were not equal. This was especially true in the southern states whose economies were founded on agriculture. Their social hierarchies were more static than those in the northern states. My maternal great-great-great grandfather was a farmer in S. Carolina, and three succeeding generations of sons were farmers. Rights varied by one’s role in society. The responsibility of a state was to manage the roles and rules within that society.
It’s important to understand that, prior to the ratification of the 14th Amendment, the protections contained in the Bill of Rights applied only to the Federal Government, and not to the states. The founding states were concerned that the central government not interfere with the sovereignty of the states in how they dealt with their citizens. The protection of the rights of their citizens was the main responsibility of the states. In fact, the constitutions of some states afforded far better protections of individual rights than was contained in the Bill of Rights.
By the time of the Civil War, Americans recognized that the southern states had managed those roles and rules to segregate or exclude black Americans in private and public life. After the Civil War, the Equal Protection and Due Process clauses of the 14th Amendment promised to equalize the rights and freedoms that people enjoyed. Following the passage of the Civil War amendments, several Supreme Court decisions reduced their scope by drawing distinctions between civil and social rights, and enacted double standards for government and private business.
In 1875, Congress passed the Civil Rights Act to ensure the equal treatment of black Americans in hotels and inns, in theaters and on public transportation. In The Civil Rights Cases(1883), the Court ruled that the Fourteenth Amendment allowed the federal government to regulate discriminatory behavior by state and local governments, not private businesses. This was an 8 – 1 decision, reflecting the normal understanding of rights as they were understood at the time the 14th Amendment was ratified. If Justice Scalia’s Originalist approach is correct, then today’s justices should apply that same distinction between government and private parties.
In Plessy v Ferguson(1896), the court ruled that segregated but equal accommodations enacted by state law did not violate the equal protection of the law. This was a 7-1 decision, reflecting the dominant understanding of equal protection at the time the 14th Amendment was ratified. The lone dissent, authored by Justice Harlan, did not reject the distinction between government and private parties but noted that a private institution like a railroad serves a public function and is subject to the protections contained in the 14th Amendment. In Brown v Board of Education (1954), the Court overturned that precedent of “separate but equal.” If Justice Scalia’s Originalist approach is correct, then today’s justices should apply that same understanding of “separate but equal,” and overturn the precedent set in Brown. Do you think that is not coming? Just wait.
In fact, the inevitable outcome of Originalism, consistently applied, is to resurrect these 19th century understandings, the sentiments and prejudices of that age. Both the Originalism and Textualism projects will rationalize stratifications in our society because of the roles that people play. Six of the current Court’s justices are involved in one or both of these projects.
In Trump v United States (2024), the Court gave former Presidents “absolute immunity for actions within his conclusive and preclusive constitutional authority,” and “at least presumptive immunity from prosecution for all his official acts.” This is 19th century court jurisprudence that sets out different rules and rights depending on one’s role in our society.
In Dobbs v Jackson Women’s Health Organization, Justice Samuel Alito concluded that the Constitution did not “confer a right to abortion.” He based his reasoning on 18th and 19th century abortion regulations and English common law, all of which regarded women as functions, as roles in our society. Women bore the children, kept the house and cooked the meals. Society did not recognize a woman’s personal boundaries. With that understanding as a foundation, it is no wonder that Alito could find no sense of privacy, of personal sovereignty for a woman who was performing a role similar to a brood cow.
The 18th century philosopher, Immanuel Kant (1724 – 1804) formulated a rule of ethics that we should treat people as ends, not just as means. In other words, people were more than the roles, the functions they played in society. That ethical rule ran counter to 18th and 19th century legal jurisprudence which regarded people as functions, not beings in their own right. In fact, much of English common law and Blackstone’s Commentaries, used frequently by conservative justices on the court, regard people as functions within society. By basing their reasoning on that ancient jurisprudence, the conservative justices on the Court reject Kant’s rule.
Three of the six conservative justices might serve another 20 – 25 years, so we can expect more of this type of jurisprudence in the future unless Congress changes the number of seats on the Supreme Court just as it did after the Civil War. That is quite an undertaking but the Originalism and Textualism projects were big undertakings that began in the 1970s with the establishment of the Federalist Society, ALEC and Heritage Foundation.
We can be a nation rooted in the present and looking to the future, or we can be a nation trapped in the birdcage of historical prejudices. The conservative court constructs a cat’s cradle of confusing opinions and unexplained shadow docket rulings that the lower courts have struggled to apply. The court itself has little to no checks on its power to interpret the Constitution and we must correct that. We can open the bird cage. I hope to see you next week.
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Photo by Enrique Chagoya on Unsplash
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