It might surprise some to learn that one of the most important debates going over the Constitution is not between the originalists and the judicial activists, but rather among those who seek fidelity to the Constitution’s words. Such was on display in arguments in the Chicago gun control case (McDonald v. Chicago) decided earlier this year by the Supreme Court. The vexing question there was whether the Constitution—and specifically the Privileges and Immunities clause of the 14th Amendment—protects unenumerated rights. To some in the originalist camp, trying to identify unenumerated rights protected by the Constitution will lead to just the sort of judge-made law that subverts democratic government. For those reasons, Justice Alito’s opinion for the Court affirmed that the Second Amendment applies to the states as well as to the federal government, but did so via the 14th’s Due Process clause rather than the Privileges and Immunities clause. The Court thus declined to revisit the 1873 Slaughter-House Cases in which the Court essentially read Privileges and Immunities out of the amendment.
But, says Claremont McKenna College professor George Thomas, sticking by Slaughter-House is a move aimed at limiting judicial discretion more than adhering to the original meaning of the 14th amendment. Thomas’s article in the recent issue of the Hoover Institution’s Policy Review will certainly provoke adherents of Justice Scalia’s thinking, for it raises the question of whether too much judicial modesty can also be a form of judicial activism. It is also well worth reading for its detailed discussion of how the 14th Amendment came to be and its relation to the overall structure of the Constitution. As Thomas points out, a Constitution that limits government’s powers by enumerating them necessarily implies that the people possess rights that are antecedant to the Constitution. Thomas’s conclusion, in part:
[T]urning to the original meaning of the Privileges or Immunities Clause is not an invitation for the judiciary to create rights. As is evident from a quick look at the history of the Fourteenth Amendment, there are a fairly clear set of rights that were understood as part of the “privileges and immunities” of citizenship. Turning to a historical understanding of “privileges and immunities,” in fact, is not so different from Scalia’s insistence that rights rooted in history and tradition might qualify as fundamental rights under due process analysis. The rub is that such an understanding would almost certainly include rights that Scalia, having digested the New Deal telling of history, is skeptical of – liberty of contract, for instance. Yet such “economic” rights were at the heart of the Fourteenth Amendment.
See: “Who’s Afraid of Original Meaning,” by George Thomas, Policy Review, December 1, 2010.