Academic

Ho on Progressive Originalism & the Due Process Clause

By Lawrence Solum

Dale Ho (NAACP Legal Defense Fund) has posted Dodging a Bullet: McDonald v. City of Chicago and the Limits of Progressive Originalism (William & Mary Bill of Rights Journal, Vol. 19, p. 369, 2010) on SSRN. Here is the abstract:

The Supreme Court?s decision in last term?s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that ?we are all originalists now.? Surprisingly, many progressive academics were disappointed. For ?progressive originalists,? McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of new unenumerated rights in subsequent cases. This Article argues that progressives should be relieved by rather than disappointed with the outcome in McDonald. Practically speaking, the purported gains that would have accrued from a revitalized Privileges or Immunities Clause were largely illusory. The Clause was unlikely to be a fountain for new unenumerated rights. Moreover, progressive originalists? concerns about substantive due process tend to overestimate the role that academic debates play in the broader public conversation about the meaning of the Constitution. But most importantly, a doctrinal shift away from existing Due Process jurisprudence towards a new reliance on the Privileges or Immunities Clause could have resulted in an unintended rollback of civil rights. Although the Fourteenth Amendment is undoubtedly radically egalitarian in spirit, there can be little doubt that the range of substantive protections that it was originally understood to afford is more limited than what is protected under current Supreme Court precedent. Moreover, reliance on the Privileges or Immunities Clause could have dire consequences for noncitizens, who may fall outside of the Clause?s scope. Although progressive originalists have made valuable contributions to constitutional discourse, McDonald illustrates that a conscious decision by progressives to adopt the language of originalism wholesale is unlikely to be a winning strategy in the long-term. More than any other area of constitutional law, the Court?s Fourteenth Amendment jurisprudence demonstrates the tremendous value of modes of interpretation other than originalism. Progressives should not shy away from a tradition of constitutional interpretation that has produced the finest moments in the Court?s history.

Recommended.

Full post as published by Legal Theory Blog on January 26, 2011 (boomark / email).