1. Thanks to Carl and Paul for the thread comments below.
2. My point was, to begin with, that the true meaning of THE FOURTEENTH AMENDMENT in relation to abortion is above the pay grade of a campaign.
3. The idea that THE FOURTEENTH AMENDMENT completes the Constitution by allowing the national government–not only Congress, but the Court–to use the Declaration or engage in a kind of general natural-rights transformation of state law is a sort of polar opposite of the kind of new federalism promoted by some Republican candidates, some TEA PARTIERS, our PORCHER and TRADITIONALIST friends, and so forth. And Ron Paul’s libertarian federalism is incoherent, just as his foreign policy is incoherent for an analogous reason. There’s more than one understanding of the principle of letting people along to do what they want–one points to localism, the other to hyper-individualism or the extreme view of the presumption of liberty.
4. My objection to this kind of transformative view of THE FOURTEENTH AMENDEMENT is that it easily morphs into LAWRENCE v. TEXAS. There the Court says that the single word “liberty” in THE FOURTEENTH AMENDMENT was intended, by the Framers, to be used as a weapon to expand the individual liberties of Americans in every generation.
5. Robby George and others explain that this individualist momentum isn’t meant to decimate “traditional” marriage or create a right to same-sex marriage. But, given Locke’s famous nominalism in THE ESSAY CONCERNING HUMAN UNDERSTANDING (for example), it’s not clear to me why liberty, in his understanding of rights, is not a transformative principle that can be used to take out distinctions based on prejudices that we once thought were natural. The original Constitution protected state law from such Lockeanization through federalism. Does “completing the Constitution” means taking Locke out of that box? Surely it does with respect to race and slavery, but…
6. So I’m all for “the right to life,” and I appreciate Robby’s true suggestion that we know better than the Framers (of either the Constitution or the 14th Amendment) why a unborn baby should be regarded as a person with rights. The light of science burns brighter because of what we’ve discovered through the science of embryology. But I know for certain that we shouldn’t think that our Court is therefore authorized to declare all laws allowing abortion unconstitutional. For one thing, the various arguments that distinguish that enlightenment from similar enlightenment when it comes to gay Americans aren’t going to hold up. I’ll have to leave to later what I think can Congress should do, although I certainly agree that Congress should act according to its own understanding of its powers and duties, while only deferring to the Courts in terms of particular cases and not in terms of constitutional interpretation.
7. We can’t help but notice both good and bad effects of our creeping individualism or personalism: Young people, studies show, are more pro-life than their parents, but they’re also less interested in sustaining the legal integrity of “traditional marriage.” In both cases, they think they’re thinking on the basis of the latest understanding of rights.
September 7th, 2011 | 2:46 pm
Excellent blog Peter, but my concern is that the 14th Amendment is illegal.
As you know the states of Arkansas, North Carolina, Florida, South Carolina, Mississippi, and Virginia, following the ‘late unpleasantness’ while under military occupation of the general government, were required to pass the 14th Amendment (Reconstruction Act of 1867) in order to gain readmission into the Union.
It seems to me that by using the threat of force, coercion, and intimidation the general government engaged in an illegal act and violated the basic construct of the Constitution of the United States as a morally(spiritually) inspired document, by reducing it to a mere Machiavellian doctrine that proclaims, “Might makes right”.
September 7th, 2011 | 2:57 pm
Peter, a minor point: when Congress obeys a SC decision with respect to a single case, it is obeying the Constitution. It isn’t a matter for any question of deference to even enter in. We generally use the word “deference” in these questions to refer to the Court deferring to Congress when it’s some kind of “tie” situation in terms of interpretation. And if Congress, in its interpretation of the Constitution, chooses to “defer” to previous SC decisions that it is having a hard time making up its mind about, then what it is really doing is interpreting in a way that places a great emphasis upon stare decisis.
It’s been a while since I read that Zuckert piece, but Paul, I’ll take a look.
September 7th, 2011 | 4:12 pm
Carl, That’s a change worth making, but I can’t do it now. When the TEA PARTIERS say the 16th and 17tn amendments are unconst,, I’m confused. It’s true the case for the 14th being unconst (because of ratification irregularities) is marginally stronger. But somehow I don’t think that issue is going to be revisited. And properly understood, the 14th is a really good thing, after all.
September 7th, 2011 | 9:19 pm
Let’s see if I understand? The 14th Amendment is illegally instituted because it is the work of immoral men who have coerced the occupied states, under force of arms, into ratifying the amendment. So we have an illegal amendment to the Constitution of the United States of America that is the work of men who, apparently believe that might makes right, and the best of all, the ends justifies the means.
And, the worst perjorative that comes to mind is that this is a case of “irregularities,” please!
Something is very wrong here!
September 8th, 2011 | 12:40 pm
The 14th Amendment is really an attempt to take the mystery out of the meaning of liberty (and property) that Robert’s ancestors said was contained in the 5th Amendment’s DP clause. THE question here seems to be whether the attempt to complete that natural rights meaning of human liberty (which is what the 14th’s now emasculated Priv/Immunities Clause meant to do too, by the way) is really comprehensive enough and so good for us today? I take it the pomocon view is that there’s something sorta true about the Court’s view of personal autonomy.
September 8th, 2011 | 1:14 pm
I don’t agree with the Court’s view of the 14th amendment, but I see how it could flow quite nicely from a Lockean view of the liberty protected by the DP clause. I guess I also prefer an interpretation of the 14th that begins its primary purpose was the protect the rights of black citizens.
September 8th, 2011 | 2:10 pm
That’s a boring, kind of living constitution interpretation. My point in suggesting that Kennedy’s view of liberty as autonomy is not all that unlike the pomocon/tocquevillian view about the mystery of human freedom is that neither is sufficiently political and so maybe not all that good in terms of the requirements of citizenship.
September 8th, 2011 | 2:20 pm
Boring of course doesnt mean wrong or by any means UNIMPORTANT in terms of protecting the rights of black citizens!
September 8th, 2011 | 2:37 pm
Kennedy’s view is the Lockean understanding of both freedom and citizenship as found, for example, in the conception of personal identity easily developed when the 2nd T. is read in light of the Essay on…–as Zuckert and Lee Ward (the latter with a new kind of precision) do. I understand you also to say, Brad, that he pomoncons are too Christian about freedom and don’t regard citizenship as the bottom line for any of us.
September 8th, 2011 | 3:16 pm
Can’t be too Christian. I’m just not ready to give teh founders (and Lincoln and maybe even Locke) to the liberals.
September 8th, 2011 | 3:21 pm
Brad, one’s theory of constitutional interpretation doesn’t always line up with one’s view of political philosophy proper. Christopher Wolfe might be exhibit A here: he’s for “Natural Law Liberalism,” but against “Natural Law Jurisprudence.” Most pomocons are less Thomistic and less Liberal than Wolfe, but the basic pattern holds…
Me, I’m an originalist, and while I’m a bit fuzzy on the p and i clause, I’m pretty staunch on “liberty” being a word that has to be interpreted according to the word’s intended/usual meaning at the time of the 14th’s adoption, as of course governed by its structural and grammatical placement. Perhaps the most obvious aim of the amendment, to protect the rights of blacks, helps us determine what the words were meant to mean, but it cannot determine it. There was a range of judicially accepted applications of what liberty (i.e., distinct liberty rights, such as that of travel) meant when Constitutionally guaranteed… …Harlan’s dissent in Plessy gives you a few examples of those. W. Wilson’s, W. Brennan’s, and A. Kennedy’s conceptions of liberty and how its definition in both theory and jurisprudence might develop totally violate that older conception, and arguably overthrow any conception of liberty.
Moreover, Due Process is Due Process. Let the economic libertarians and the privacy-advocates make their respective cases before legislatures, and let’s dump the whole Substantive Due Process charade, which grows ever-more more baroque with every decade.
That’s all I have energy for now…
September 8th, 2011 | 5:27 pm
But without substance, Carl, we’re back to the whole mysterious meaning of liberty thing. Forget DP, forget P/I. These additional safeguards for liberty, although practically necessary particularly in the case of black citizens, are really doing harm to our republican self-understanding, as Hamilton said they would. You even seem to be advocating, maybe because of the confusion, a kind of piecemeal originalism unlike the interpretation we find in The Federalist. My point again is maybe that’s what a pomocon wants to do (ie provide a kind of metaphysical defense for Scalia’s positivism and judicial self-restraint)
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