Posted by Randy Barnett:
Is Originalism Crossing Over?
http://volokh.com/archives/archive_2009_03_15-2009_03_21.shtml#1237481063
Next week, I will be giving my talk on "Was Lochner Right? Natural
Rights and the Fourteenth Amendment" at Georgetown Law on Tuesday at
noon and at GMU Law on Thursday at 5pm. In my talk, I explain the
original meaning of the Privileges or Immunities Clause and its
connection to the Ninth Amendment. In response, people are very
curious as to whether whether I think there is any chance for a
revival of the Privileges or Immunities Clause in the Supreme Court.
My answer is that we stand poised on the threshold of a possible shift
when the constitutionality of state restrictions of the right to keep
and bear arms is confronted by the Court in the wake of DC v. Heller.
The evidence is overwhelming that the Privileges or Immunities of
Citizens of the United States included a personal right to keep and
bear arms. Indeed, the evidence that the right protected by the
original meaning of the Fourteenth Amendment was personal and
individual is even stronger and less impeachable than it is with the
Second Amendment. And all the historical evidence concerning a right
to keep and bear arms that exists concerns the Privileges or
Immunities Clause, not the Due Process Clause.
Moreover, since the path breaking work by Michael Kent Curtis appeared
in the 1980s, there has formed a remarkable scholarly consensus among
those familiar with the historical record, and this consensus is
entirely nonideological. Indeed, on February 4, 2009, the
self-described "progressive" [1]Constitutional Accountability Center
filed a brief in the consolidated case of McDonald, et al., and
National Rifle Association of America, Inc., et al., v. City of
Chicago, et al., and Village of Oak Park, now pending in the Seventh
Circuit, arguing that the individual right to bear arms recognized in
District of Columbia v. Heller, is �incorporated� against state action
via the Privileges or Immunities Clause of the 14th Amendment. CAC�s
brief (available [2]here) was filed on behalf of professors Richard
Aynes, Jack Balkin, Michael Kent Curtis, and Michael A. Lawrence.
Their brief speaks only to the incorporation issue and did not argue
that the challenged gun regulations are unconstitutional.
The CAC maintains that a close attention to "text and history" leads
to progressive results and that conservative renditions of original
meaning have been too cramped. There is much to be said on behalf of
this stance, which I anticipated in my 1999 article entitled, "[3]An
Originalism for Nonoriginalists." While some may object that this is
not "really" originalism, in my experience at least part of this
objection is based on results not method. I do think some conservative
readings of the original meaning of the text have been distorted to
reach certain results. And where inconvenient original meaning is
conceded--for example, with the Ninth Amendment--the argument then
immediately shifts to nonoriginalist claims about judicial "role." If
a commitment to originalism means anything, however, it should mean
letting the chips fall where they may with respect to results.
With all this in mind, it was noteworthy to see a lengthy feature
article on originalism in the Wall Street Journal's weekend section.
Entitled [4]Rethinking Original Intent, the subtitle is: "The debate
over the Constitution's meaning takes a surprising turn; a pivotal
gun-rights case." The article is well worth reading. Here is a taste:
This new twist on originalism is gaining momentum, and its
proponents hope it will lead courts to take a more expansive view
of individual rights. Although nurtured by liberals -- including
some with close ties to the Obama administration -- some
conservatives are backing the broader application of the
originalist method. In uniting some unusual allies, the Illinois
gun-rights case could be the vehicle to correct what scholars on
the left and right say is a 136-year-old constitutional wrong.
The Constitutional Accountability Center brief served in effect as
an intellectual loss leader for liberals frustrated by conservative
success in the battle over the Constitution's meaning. Douglas
Kendall, the center's head, says he personally supports gun
control, but if courts embrace his arguments, the door could open
to a new era of liberal jurisprudence.
So-called progressive originalism departs from the conservative
strain by shifting focus from the 18th-century constitutional text
to the three Reconstruction amendments ratified after the Civil
War. The 13th, 14th and 15th amendments radically altered the
structure of American federalism, elevating federal power over that
of the states, and giving individual rights pre-eminence.
Whatever its weaknesses, the article is important evidence that the
Privileges or Immunities Clause may indeed rise from the grave that
was dug for it in The Slaughter-House Cases. Indeed, I don't think the
Court would have to reverse Slaughter-House to enforce a right to keep
and bear arms; it would only have to reverse the vile U.S. v.
Cruikshank. (For why Cruikshank is vile see [5]The Day Freedom Died:
The Colfax Massacre, the Supreme Court, and the Betrayal of
Reconstruction )
I have procrastinated about blogging about this because the subject
quickly gets complex. for example, is this a good or a bad thing for
originalism? Many conservative originalists would find this
development loathsome. But I think that any shift to a focus on the
original meaning of the text can only be a good thing. Consider the
originalist debate between Justices Scalia and Stevens in Heller. This
is far preferable to interpreting the Constitution according to the
sort of allegedly pragmatic considerations of Justice Breyer in
Heller.
Of course, any assertion of original meaning must be confined to
original meaning. Moving to the "original principles" underlying the
text and then using these principles to decide cases is a tried and
tested way of avoiding rather than adhering to the original meaning of
the text. But the purpose of this post is merely to report the news of
progressive originalism and the increasing likelihood of reviving the
Privileges or Immunities Clause in the context of gun rights. We
report, you decide.
References
1. http://theusconstitution.org/index.php
2. http://www.theusconstitution.org/page_module.php?id=12&mid=9
3. http://www.randybarnett.com/pdf/originalism.pdf
4. http://online.wsj.com/article/SB123699111292226669.html
5.
http://www.amazon.com/gp/product/0805083421?ie=UTF8&tag=randyebarnetbost&linkCode=as2&camp=1789&creative=390957&creativeASIN=0805083421
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