Monday, January 5, 2009

The pesky 14th Amendment

From an article in Reason Magazine:
Does the U.S. Constitution protect individual rights against abuse by the states? For more than 130 years, the answer to that question has been clouded by the Slaughterhouse Cases (1873), a controversial Supreme Court decision that effectively gutted one of the Constitution's most important safeguards for individual liberty: the Privileges or Immunities Clause of the Fourteenth Amendment.

Earlier this month, the Constitutional Accountability Center, a liberal think tank and law firm "dedicated to fulfilling the progressive promise of our Constitution's text and history," published their version of this unfortunate story. Written by the legal scholars David H. Gans and Douglas T. Kendall, the result is an informative, though ultimately incomplete study that fails to acknowledge the essential role classical liberalism played in keeping the 14th Amendment alive. Given that a newly restored Privileges or Immunities Clause has the potential to impact both the Bill of Rights (including the Second Amendment) and various unenumerated rights (including privacy and sexual liberty), it’s no surprise that Gans and Kendall want to weigh in on the progressive side. Which makes it all the more important to get the story straight.
For their part, Gans and Kendall openly celebrate Meyer as a model for what the 14th Amendment should do, while at the same time denouncing Lochner as one of the Court's worst decisions. It's an incoherent position, to be sure, given that Lochner literally made Meyer (and Buchanan) possible. Take another look at McReynolds' majority opinion above, and you'll find liberty of contract right there at the top of his list.
Maybe Gans and Kendall don't like the fact that a laissez faire man like Field played such a leading part in the amendment's history. Whatever the explanation, bad feelings don't change the facts. As Field's accomplishments demonstrate, it's the Constitution's libertarian legacy that's worth studying and celebrating, not its alleged "progressive promise."

Article here. In D.C. v. Heller, Justice Scalia, writing for the majority, hints that the Supreme Court may get a chance to revisit its tortured Fourteenth Amendment "selective incorporation" jurisprudence in a future Second Amendment case. Hopefully one of the several Second Amendment-related lawsuits currently wending their way through the lower courts may provide just such as opportunity.

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