Will Lin-Manuel Miranda Transform the Supreme Court?

[SecularMotion]

It is hard to know which was less foreseeable: that a reality-TV star with no government experience would be the Republican nominee for president or that the smash hit of Broadway would be a rap opera about the man behind the Federalist Papers. But there is a reason why the two phenomena arise at the same time, and there is a reason why that time coincides with the end of America’s first nonwhite presidency. The birther-in-chief’s campaign for high office and Lin-Manuel Miranda’s Hamilton: An American Musical speak to the same deep issues about American identity at a time when the nation’s demography increasingly resembles that of the larger world. They just approach the subject from different perspectives. One seeks to protect an America that is still mostly white and Christian against Mexicans, Muslims, and other outsiders deemed dangerous. The other is so confident in the multiracial future that it rewrites the American past in its image. The passions that each one inspires are rooted in part in the desire to reject a vision of America that the other one represents. They are, in short, the same national transition but from opposite sides of the looking glass, and the year 2016 is a struggle between the two. History has its eye on them.

The result of this contest will shape the future of constitutional law. If Donald Trump is elected, the Republican Party may extend its hold on the Supreme Court into the indefinite future. If he loses, the Court will have a majority of Democratic appointees for the first time since 1970. But that prospect, momentous enough on its own, understates the transformation that may be coming. To see the larger possibility, one must imagine not just a majority-Democratic Supreme Court but a majority-Democratic Supreme Court in a world after Miranda’s Hamilton.

The writing of the Constitution is part of America’s origin story. Not coincidentally, judges as well as other Americans commonly read the Constitution through their assumptions about the Founding generation. And if the history of constitutional law shows anything, it is that the “original meaning” of the Constitution changes over time. Not the actual original meaning, of course. To the extent that the Constitution has an actual original meaning, that meaning is fixed by historical facts. What shapes constitutional law, however, is not the actual original meaning of the Constitution. It is the original meaning of the Constitution as imagined by judges and other officials at any given time. And how judges imagine the original meaning of the Constitution depends on their intuitions—half historical, half mythical—about the Founding narrative. If you can change the myth, you can change the Constitution.

Hamilton is changing the myth. For decades, originalism in constitutional law has had a generally conservative valence. Now, week by week, the thousands of patrons who pack the Richard Rodgers Theater and the hundreds of thousands more who listen obsessively to Hamilton’s cast album or download the viral videos are absorbing a new vision of the American Founding. And so the balance shifts. With the Supreme Court on the brink of moving leftward and Hamilton electrifying audiences from the Grammys to the White House, the lawyering class’s intuitions about the Founding are poised to change. The blockbuster narrative of this election year retells the nation’s origin story as the tale of a heroic immigrant with passionately progressive politics on issues of race and on issues of federal power. The audience is on its feet. So to all those Americans who expect original meanings in constitutional law to support mostly conservative outcomes, here is your Miranda warning: Within the foreseeable future, a jurisprudence of original meanings may fuel the most progressive constitutional decision making since the days of Chief Justice Earl Warren. Just you wait.

http://www.theatlantic.com/politics/archive/2016/06/lin-manuel-miranda-and-the-future-of-originalism/485651/

[scarletlib]

1. I hope more people read this.

I am one of those hundreds of thousands who are obsessively listening to the sound track.

First, it is a work of genius. The music is wonderful and the story it tells is incredible. I study history, and this musical has already given me a different perspective on the founding fathers and the beginning of our Constitutional government.

I absolutely love the story as presented in this musical. And I agree with it. I (white southern female) love the multicultural society that I believe the USA is evolving to be.

[tanyev]

2. I sure hope so.

Thanks for posting--it's reminded me to set my DVR to record the Tony Awards.