Civil and Human Rights

Rethinking Original Intent


The debate over the Constitution’s meaning takes a surprising turn; a pivotal gun-rights case

Art Resource, NY
The nation’s founders in ‘The Signing of the Constitution,’ a 1940 painting by Howard Chandler Christy. A debate is building over how to interpret the document.

After the Supreme Court struck down the District of Columbia’s handgun ban last June, gun-rights advocates trained their sights on similar restrictions in Chicago and Oak Park, Ill. Last month, the National Rifle Association received ammunition from an unlikely source: the Constitutional Accountability Center, a liberal litigation shop.

In a brief filed with the federal appeals court in Chicago, the center not only argued that gun ownership is a constitutional right, it also employed the legal method popularized by such conservative icons as Supreme Court Justice Antonin Scalia. That method is originalism, which seeks to apply the law today according to the text’s meaning at the time of its adoption.

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.

Viewed through the Reconstruction prism, the “Constitution turns out to be way more liberal than conservative,” says Yale law professor Akhil Reed Amar, a leading proponent of progressive originalism. “The framers of the 14th Amendment were radical redistributionists. The 13th Amendment frees the slaves and there’s no compensation,” he says. “It’s the biggest redistribution of property in history.”

By applying methods blessed by conservatives to the neglected texts and forgotten framers of the Reconstruction amendments, liberals hope to deploy powerful new arguments to cement precedents under threat from the right and undergird the recognition of new rights.

That upends Justice Scalia’s technique, which focuses on the initial 18th-century constitutional text to find narrow individual rights and limited federal power to protect them.

The conservative originalism that rose to power in the 1980s began as a critique of liberal decisions the Supreme Court delivered in the 1950s and ’60s under Chief Justice Earl Warren. Conservatives argued that some Warren Court rulings — such as the 1965 decision striking down a ban on contraceptives for violating privacy rights — weren’t adequately supported by constitutional text.

Today, some conservative scholars agree that Reconstruction framers are on a par with America’s founders.

“The Reconstruction amendments are of unique importance and I think in many ways they do constitute a second founding of the country,” says Northwestern University law professor Steven Calabresi, a founder and board president of the Federalist Society, the conservative lawyers’ network whose members dominated legal policy in the George W. Bush administration. To apply constitutional rights, he says, “the period you should look to to find out the original understanding is 1868, not 1791.”

Central to the progressive originalists is the 14th Amendment, whose Section 1 lets no state “abridge the privileges or immunities of citizens of United States,” “deprive any person of life, liberty, or property, without due process of law” or “deny any person…the equal protection of the laws.”

Written by Lincoln’s political heirs shortly after his assassination, the amendment was intended to fix in the Constitution the “new birth of freedom” the president had promised in the Gettysburg Address, says Mr. Kendall, the Constitutional Accountability Center’s founder and president.

Before the Civil War, courts held that most provisions of the 1789 Constitution and the Bill of Rights only limited federal action — and states were free to recognize or ignore many rights as they chose. The theory was essential to reconciling slavery with a country founded on the Declaration of Independence’s claim that “all men are created equal.”

John Bingham, an Ohio congressman who served on the military commission that tried the Lincoln assassination conspirators, drafted Section 1 to correct what he considered fundamental flaws in the Constitution.

During ratification debates, House Speaker Schuyler Colfax said the 14th Amendment would become “the gem of the Constitution,” because “it is the Declaration of Independence placed immutably and forever” there.

What’s more, the Second Founding’s framers saw their amendments as paving the way for new rights as society develops. A citizen’s privileges or immunities “are not and cannot be fully defined in their entire extent and precise nature” in a single document, said Sen. Jacob Howard at the time.

Mr. Amar says these men deserve even greater veneration than the Revolutionary framers. “Thomas Jefferson and James Madison lived and died as slaveholders,” he says. “The generation that redeemed us from that deserves more credit.”

But the egalitarian fervor that followed the Union victory soon fell victim to Southern defiance and Northern fatigue, historians say.

The Supreme Court, which had battled Lincoln during much of the Civil War, soon restricted the Reconstruction amendments’ impact. In an 1873 ruling known as the Slaughter-House Cases, a 5-4 Supreme Court effectively nullified the Privileges or Immunities Clause. Rather than applying the Bill of Rights to the states or requiring them to recognize fundamental freedoms, the court found that the clause covered only a handful of relatively minor privileges that fell specifically under federal control, such as “the right to use navigable waterways.”

A series of decisions followed that limited federal power to protect civil liberties. An 1886 decision, Presser v. Illinois, held that the Second Amendment didn’t touch the states’ powers to restrict weapons.

After Justice Hugo Black fell one vote short of reviving Privileges or Immunities in a 1947 case, liberals turned to other theories to protect civil rights.

“Black was the great progressive textualist, and once he lost the battle, the court decided that avenue is closed,” says Mr. Kendall. Other justices of the 1950s and ’60s, including William Brennan and William O. Douglas, “were less concerned with having the correct test as getting the right answers,” he says.

The Warren Court struck down school segregation in 1954, upheld freedom of the press in 1964 and ended bans on interracial marriage in 1967.

While few question those results today, many conservatives and some liberals disparage some of the legal rationales behind them. The Warren Court often turned to another 14th Amendment provision, the Due Process Clause. The court typically found certain rights to be so fundamental that there could be no lawful way to abridge them without violating due process of law.

That allowed the court to avoid precedents such as Slaughter-House, but conservatives ridiculed the logic as tortured. “It’s a pretty impossible concept to explain because the Due Process Clause was not the vehicle by which the 14th Amendment founders thought they were safeguarding fundamental rights,” says Mr. Kendall.

He says several modern decisions could have turned out differently under a stronger reading of Privileges or Immunities. In 1997, the Supreme Court upheld Washington state’s ban on assisted suicide, saying it didn’t violate the rights of terminally ill patients. In 2005, the court ruled that a Colorado woman had no right to sue local authorities for failing to enforce a restraining order against her estranged husband, who murdered their three children. Both the right to control one’s fate, and the state’s duty to protect citizens, could have been recognized through Privileges or Immunities where they fell short under Due Process, Mr. Kendall argues.

Goodwin Liu, a law professor at the University of California, Berkeley, says the Slaughter-House opinion impoverished constitutional law. “If Slaughter-House had come out the other way, we would have had 100-some years of jurisprudence on the concept” of Privileges or Immunities, says Mr. Liu, chairman of the liberal American Constitution Society. The society, whose leaders have included Attorney General Eric Holder, has joined with Mr. Kendall’s center to sponsor forums on the Second Founding.

New rights would not “flood in” if Slaughter-House were reversed today, Mr. Liu says. “It would be case-by-case, and people would argue over the meaning.”

Some liberals say, however, that since the Warren Court accomplished much of the 14th Amendment’s promise, there’s little practical benefit in reviving the Privileges or Immunities Clause. Even that clause, they note, doesn’t specify rights such as privacy, which the court has read to strike down laws banning abortion and sodomy.

“The underlying objections [of conservatives] would simply be transplanted to a different home,” says Laurence Tribe, a Harvard law professor who once taught President Barack Obama and remains an adviser to his former student. Mr. Tribe’s “American Constitutional Law” argues that the Slaughter-House Cases were wrongly decided, but he says progressives have better ways to direct their energies.

“When something is sewn into the fabric…as deeply as the Slaughter-House Cases are, the effort to tear them out may not be worth the result,” he says.

Other liberals say it’s a mistake to adapt originalism, which they consider less an academic method than a political slogan. “It’s being defined by your opponents,” says Yale law professor Robert Post.

On the conservative side, Paul Clement, a former Scalia clerk who served as solicitor general in the recent Bush administration, agrees. “You could go through this elaborate exercise of overturning the Slaughter-House Cases…and at the end of that whole upheaval you might end up basically in the same place,” he says.

Still, there are hints that the court could be open to reconsidering the Privileges or Immunities Clause.

In 1999, a 7-2 court cited the clause to strike down a California law that limited welfare benefits for newcomers to the levels they would have received in their former state, if those benefits were lower.

Writing for the court, Justice John Paul Stevens observed that “the word ‘travel’ is not found in the text of the Constitution,” yet the right “is firmly embedded in our jurisprudence.” Justice Stevens, among the court’s most liberal members, explained that it stems in part from “the opening words of the 14th Amendment.”

Although he dissented, Justice Clarence Thomas wrote that “the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our 14th Amendment jurisprudence.” To clarify things, “I would be open to re-evaluating its meaning in an appropriate case.”

That case could be the gun-control lawsuit in Illinois. Although the Supreme Court struck down the District of Columbia’s handgun ban, the capital’s federal status leaves unclear the implications for the states. A robust reading of the Privileges or Immunities Clause would likely extend the decision’s force.

Mr. Kendall’s center argues in its brief that the Reconstruction framers “wanted the newly-freed slaves to have the means to protect themselves…against well-armed former rebels.”

Alan Gura, the conservative lawyer who won the gun case at the Supreme Court and brought the challenges in Illinois, raised the Privileges or Immunities argument at the district court, only to see it rejected because of current precedent.

He welcomes his liberal allies. “This is an issue that actually unites the left and the right,” he says.

“Where the left and right might diverge in the future might be the content of unenumerated rights,” Mr. Gura says. Conservatives would focus on undermining government restrictions on economic liberty such as environment and land-use laws, he says, while liberals might emphasize “social issues or gay rights.”

More from Civil and Human Rights

Civil and Human Rights
June 20, 2024

RELEASE: Supreme Court decision keeps the door open to accountability for police officers who make false charges

WASHINGTON, DC – Following this morning’s decision at the Supreme Court in Chiaverini v. City...
By: Brian R. Frazelle
Civil and Human Rights
June 11, 2024

The People Who Dismantled Affirmative Action Have a New Strategy to Crush Racial Justice

Last summer, in Students for Fair Admissions v. Harvard College, the Supreme Court’s conservative supermajority struck...
By: David H. Gans
Civil and Human Rights
April 12, 2024

TV (Gray TV): CAC’s Frazelle Joins Gray TV to Discuss Fourth Amendment Case at Supreme Court

Gray TV Washington News Bureau
Civil and Human Rights
April 22, 2024

RELEASE: Justices grapple with line-drawing but resist overturning important precedent in Eighth Amendment homelessness case

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in City of...
By: Brian R. Frazelle
Civil and Human Rights
April 19, 2024

Will the Supreme Court Uphold the 14th Amendment and Block an Oregon Law Criminalizing Homelessness?

Nearly 38 million Americans live in poverty. In some areas and among some populations, entrenched economic...
By: David H. Gans
Civil and Human Rights
April 18, 2024

DEI critics were hoping that the Supreme Court’s Muldrow decision would undermine corporate diversity programs. It does no such thing

The Supreme Court just delivered a big win for workers and workplace equality–but conservatives are...