The American Spectator : Let's Get Original

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Let's Get Original

By Robert VerBruggen from the February 2010 issue

Thanks to conservative political and intellectual success, originalism as a guiding judicial philosophy is here to stay.

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SOME ON THE LEFT have had a very different reaction to modern originalism: They’ve not quite accepted it, but they have made it their own. These liberals often concede that the Court’s excesses in the ’60s and ’70s don’t square with the Constitution’s original meaning, but they add that the Court could have expanded citizens’ rights in a way that was constitutional. Specifically, they say that the Fourteenth Amendment’s “privileges or immunities” clause—“no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—provides a better excuse to do this than the guarantee of “due process” does.

Their main argument is that the Slaughter-House Cases (1873), decided soon after the Fourteenth Amendment passed, interpreted the “privileges or immunities” clause too narrowly. The majority decided that the clause “did not create additional rights, it merely required states to apply [their] laws equally to non-state residents as well as state residents.” Since then, the clause has been essentially meaningless. But correctly interpreted, these liberals say, the clause not only requires full incorporation of the Bill of Rights (as opposed to the “selective” incorporation achieved thus far under “due process”), but might protect things like abortion and gay rights too.

This reasoning, at least regarding the incorporation of enumerated rights, is far from implausible, and even some on the right share it. Justice Clarence Thomas implied such a view in a 1999 dissent, writing that “the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our 14th Amendment jurisprudence” and that he’d be willing to reconsider the clause’s meaning. Even when it comes to unenumerated rights, many libertarian-leaning originalists (such as Barnett, who would like to see the Court protect everything from sodomy rights to economic freedom) share the progressive-originalist view.

Which bring us to McDonald, the gun-rights case now before the Court. The case specifically asks the Court to consider the “privileges or immunities”- based case for incorporation. There’s no way to tell what, if anything, will come of this—it seems likely that the Supreme Court will incorporate the Second Amendment, but it could do so on familiar “due process” grounds (as the Ninth Circuit already did in a different case) rather than head in this brave new direction.

If the Court does reconsider the “privileges or immunities” clause on originalist grounds, it will likely have to do so over a series of cases, during which it will face many thorny questions. What economic and civil rights does the clause protect? Can one determine those rights by researching what the term of art “privileges or immunities” was commonly understood to mean when the Fourteenth Amendment passed, or must one simply guess? Should the Court overturn old “due process” decisions and replace them, when appropriate, with “privileges or immunities” ones? Or should the new rights just build on the old?

Perhaps what should concern conservative originalists most is that, even if these cases put the “privileges or immunities” clause back in its rightful place, future courts could stretch it the same way they stretched the due-process clause. “Privileges or immunities” could give a progressive court a whole new avenue to run down when it came to inventing rights.

VI.

HOWEVER THINGS PAN OUT, originalists will have much more sway than they had a few decades ago. Obama’s liberal appointees will likely replace other liberal judges. Liberal John Paul Stevens, born in 1920, is the Court’s oldest member by more than a decade; Ginsburg and Breyer were born in the 1930s (though so were Scalia and moderate Kennedy). Roberts and Alito were born in the 1950s, Thomas in 1948. It seems most likely that Obama will preserve liberalism on the Court— possibly for decades, if he replaces several more old liberals with young ones—but probably won’t be able to roll back the gains of originalism.

It’s also important to remember the lower federal courts, which to varying degrees have adopted the Court’s proclivity for ignoring the Constitution’s meaning. Lower courts have significant power, and could soon be home to some important battles. There is a push for courts to recognize gay marriage, though up to this point only state (not federal) courts have done so. It will probably fall to the lower courts to untangle some of the knots McDonald leaves. Obama’s appointments to lower federal courts could determine the policies governing entire regions.

Aside from filibustering particularly egregious nominees, there’s not much originalists can do about judges while the Obama administration is in office. They can be grateful, however, for the work various scholars and judges have done to bring the philosophy back.

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About the Author

Robert VerBruggen is an associate editor at National Review. You can follow his writing here.

Letter to the Editor View all comments (8) | Leave a comment

Mike| 2.26.10 @ 8:29AM

Privileges and immunities clause has no meaning, and cannot be interpreted in this way. It is a dead clause, that cannot be revived. See Bork's Tempting of America for a discussion.

Alan Brooks| 2.28.10 @ 1:31AM

it all hinges on compliance. Laws are nothing without relatively uncorrupted law enforcement-- state monopoly on violence doesn't work otherwise. Even libertopian airheads know that.

MBD| 2.26.10 @ 12:36PM

During the Warren Court era, the opinions of the liberal majority as well as the more conservative dissents were often laced with citations to the 'original' understanding of various Constitutional provisions. They did not coin the term 'originalism' at the time and the useage of the cited authority was, as the old cliche goes, often used much in the manner that a drunk uses a lamppost - more for support than illumination. It was not uncommon to see citations to the Congressional journal (particularly in respect to debates on the meaning and scope on the various Amendments - especially the Fourteenth which was the source for much in the way of expanded legal doctrines at that time in the criminal law and civil rights areas) and the early Constitutional debates, including, of course -but not limited to - the Federalist Papers. You will find that each new pathway in Constitutional interpretation in those years - and even in earlier Courts, but to a lesser degree - was cut with the aid of appeals to what were argued to be the intent of the drafters.
Original intent fell out of favor with the left when it found that its opponents were getting the better of the argument and was demonstrating the fallacies in its slipshod use of 'original intent' material.
It is interesting to note that there appears to be a revival of the notion that the Supreme Court does not - or, at least should not - have the power to overrule the actions of co-equal branches of the government. In the 60's the lone voice espousing this view was the late Willmoore Kendall, who argued that the notion first truly appeared in the Dred Scot decision ( Marbury v. Madison, he noted, involved only the judiciary's refusal to exercise the jurisdiction given it by Congress which - in the Marshall Court's view - exceeded the Constitution. It was thus simply that branch's self-limiting refusal to exercise the authority given it). While there may be much to be said in favor of Kendall's view in the abstract, it is - to use another cliche popular with the robed branch - probably too late in the day to change.

Vern Crisler| 2.26.10 @ 1:04PM

The writer says that adherents to “Old Originalism,” focused on original intent. He claims that the "obvious" counterargument is that it's not possible to read the minds of the Framers, and that they sometimes disagreed with each other.

In fact, originalists such as Berger followed the Framers' view, that interpretation is governed by the ratifiers of the Constitution -- i.e., how the people understood it in their ratifying conventions.

James Madison said, “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”
http://www.constitution.org/jm/18240625_lee.txt

Then, if meaning cannot be determined, we would go to the Congress who approved the document, then lastly to the original drafters of the document.

IOW it was a three-tiered process of interpretation.

obadiah| 2.26.10 @ 1:10PM

puffery. ignores problems with "originalism" such as the constitutional catastrophe of the civil war and radical changes embodied in Amendments XIII, XIV and XV. ignores important areas of law, like intellectual property law and criminal law, where originalism has nothing to say. some cases call for an investigation into the history of the law, even stretching back to the origins of the law. But the origins do not possess some molding power that projects forever into the future.

Sam| 2.26.10 @ 2:57PM

I want an update on the McDonald case. Have oral arguments been heard?

j.glynn| 2.27.10 @ 9:57AM

If Obama appoints two more Justices to the Supreme Court you can kiss originalism goodbye and say hello to the living, breathing constitution. It will take generations to return to what constitutional interpretation should be, if at all!

Yosemeti Sam| 2.27.10 @ 10:45AM

" ...This reasoning, at least regarding the
incorporation of enumerated rights, is far from
implausible, and even some on the right share it.
Justice Clarence Thomas implied such a view in
a 1999 dissent, writing that “the demise of the
Privileges or Immunities Clause has contributed
in no small part to the current disarray of our
14th Amendment jurisprudence” and that he’d be
willing to reconsider the clause’s meaning...."

Hmmmm. Constitutional dams dynamited - anyone?

Translation for us street people - the proverbial
camel's liberal judicial sacramental semantic nose
given consideration to not furtively but openly
pushing further and further into the tent of the
Originalists' common sense constructed Constitution; then when erotic penumbras were not the 'basest' of considerations.

Yet erotic penumbras are now to be entertained
because of a hedonistic value-driven society?

Coke - anyone?