October 20, 2025

THE REST IS LEGISLATION:

Born Equal: Remaking America’s Constitution, 1840-1920 By Akhil Reed Amar (Reviewed by Jonathan Sallet, October 20, 2025, Washington Independent Review of Books)

But atop the mountain stands “Abraham,” the constitutionalist, fusing the broadened ambitions of the Declaration of Independence with the textual provisions of the Constitution. President Lincoln thereby built a foundation for concluding that the principles underlying “a more perfect union” justified the abolition of slavery, the codification of civil rights, and universal voting rights for adult citizens.

Amar takes pains to emphasize his view that the most important originalists in U.S. history are not our right-leaning modern jurists. For example, he details Lincoln’s lawyerly analysis to support a constitutional vision that fulfils the implicit (if not the expressly worded) promise of the Declaration of Independence: moving toward equality for all.

This is inspiring stuff, but here’s the thing: Conservative jurists embrace key conclusions that Amar identifies with Lincolnian originalism — say, that Plessy v. Ferguson’s vindication of racial segregation was wrong (and, although his history does not reach into the 1950s, that Brown v. Board of Education was right). And, for instance, Justice Clarence Thomas’ self-styled originalist opinion in Students for Fair Admission v. Harvard, the case ruling that the university’s race-conscious admissions process was unconstitutional (in which Thomas quoted Amar’s earlier views approvingly).

Which leads to a pressing question in today’s constitutional moment: Does Professor Amar’s Lincolnian originalism differ from the prevailing conservative approach?

No.

THE FOUNDERS COULD NOT HAVE ENVISIONED A SUPINE BRANCH:

How the Framers Made the Presidency with Michael McConnell, (Richard M. Reinsch II, 4/02/21, Law & Liberties Podcast)

Richard Reinsch :

And then Congress seems unwilling or unlikely or too partisan, depending on who’s in the White House, to stand up for its own institutional power.

Michael McConnell:

Yeah, Congress is basically no longer interested in institutional questions. They are only interested in partisan questions. And given that the Congress is pretty divided, Senate’s 50/50, democrats are just barely in control of that. The democrats in Congress are not going to rein President Biden in, just as the republicans when they controlled both houses of Congress under Trump were unwilling to rein Trump in. There was a time not that long ago when Congress cared about its institutional prerogatives, and they would join together on a bipartisan basis to object when presidents did things that they believed cut into a congressional authority. And there is no authority that is intended by our Constitution to be so exclusively congressional as the power over the purse. There are actually two provisions of the Constitution that protects Congress’s exclusive power here. We’ve now had three presidents in a row that rather blatantly have been spending large sums of money on pet projects that Congress disapproved of, and have gotten away with it. Actually, Obama didn’t quite get away with it, because the court stepped in when he spent $7 billion on healthcare subsidies to insurance companies that Congress had refused to appropriate. The court actually stepped in and said that that was illegal.