Sunday, July 16, 2017

Just "Amend the Constitution"

A lame response. 

I've been reading the comments here on Professors Randy Barnett and Bruce Ledewitz's debate on originalism. One mantra the right of center originalists there seem to repeat is, (me paraphrasing) "if you don't like the Constitution the way it was originally understood, simply amend it."

Yeah, easier said than done. And do we really want or need more amendments?

Why do I think it's a lame response? Put the shoe on the other foot. Don't forget, if we don't like the way the Supreme Court interprets the Constitution, we can always amend the Constitution to overrule said understanding. Similarly, we can amend federal statutory law when the Supreme Court interprets a federal statute in a way in which we disagree. And though it's not necessarily an easy thing to amend a federal statute, it's much, much easier to do that than to amend the US Constitution.

The US Constitution has been amended only 27 times!

Roe v. Wade and Obergefell v. Hodges are two cases with which socially conservative originalists strongly disagree. Well, just amend the Constitution. It was tried. How did that human life amendment or marriage amendment go down?

There is actually a much better answer. We don't see it because most socially conservative originalists don't seem interested in defending arguably the "rightest" original understanding of the 14th Amendment. And I understand why, this understanding holds Brown v. Board of Education to be wrongly decided.

And there an unwritten rule that any theory of constitutional interpretation that holds Brown to be wrong is not viable.

And by the way, this is not the kind of originalism that I defend. I don't trust majorities on matters of fundamental rights. I strongly value individual rights that are antecedent to majority rule and sympathize when majorities who might impinge on such are so frustrated.

So much of our constitutional law involves the 14th Amendment and the federal Constitution constraining state and local governments on matters of civil rights that relate to race, gender, religion and a bunch of other things thing.

The "rightest" original expectation of how the 14th Amendment's text was meant to apply is as follows: The Equal Protection and Due Process Clauses are entirely procedural. They were meant to grant no substantive rights whatsoever. The Privileges or Immunities Clause was meant to grant substantive rights. The Supreme Court's Slaughterhouse Cases were wrong. But it was Congress' role to define and guarantee those rights that constitute Privileges or Immunities.

Brown was wrong NOT because the framers of the 14th Amendment didn't think it would potentially outlaw government mandated segregation. But rather because it's Congress' role, not the Courts to outlaw such by means of statutory law which the 14th Amendment was meant to constitutionalize. Otherwise for Congress to attempt to do such would be an unconstitutional exercise of its powers pursuant to the doctrine of limited, enumerated powers.

So if we don't like the way the Supreme Court understands matters of fundamental rights, the proper response is indeed, "amend." But it's not the Constitution that needs to be amended. Rather it's extant federal statutory law relating to matters of fundamental rights that Congress has power over pursuant to the Privileges or Immunities Clause of the 14th Amendment. Much easier than amending the US Constitution.

Again, this isn't a constitutional world in which I endorse; but it's a better use of the "amend" response than telling your opponent to simply amend the US Constitution if you don't like the way the courts deal with matters of fundamental rights.

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