JWI Deputy Director Garrett Snedeker offers his thoughts on Profs. Randy Barnett and Evan Bernick’s recent book, The Original Meaning of the Fourteenth Amendment. He discusses their positivist approach to interpreting the Privileges or Immunities Clause and questions whether natural law reasoning can be divorced from the recognition of unenumerated constitutional rights.
We’ve included a few excerpts from the essay below.
“The Court’s 1997 decision in Washington v. Glucksberg, which asked whether a claimed right is firmly rooted in the nation’s history and tradition before securing its protection, has become the canonical case on substantive due process…The authors largely endorse the Glucksberg standard as a legitimate threshold for unenumerated rights due protection under the privileges or immunities clause, but with their own added twist to address the level of generality problem: ‘firmly rooted’ must mean that a right has been part of a ‘stable national consensus’ for at least a generation. According to Barnett and Bernick, such a right must be instantiated in positive law or judicial determinations and ‘be widespread for a lengthy period,’ or about thirty years.”
“Barnett and Bernick’s ‘flavor’ of originalism values ‘coordinating social activity,’ or creating expectations in interpretation, but, unfortunately, on the same level of, or above, testing whether or not a law has an ontologically true basis. They provide a great service to our understanding of the Fourteenth Amendment, and to get our constitutional house in order, but their proposed solution leaves them open to these criticisms. This does not tarnish their work so much as provides them fodder for further argument among friends.”
Click here to read the full piece.