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.
Posted on 03/14/2009 9:18:11 AM PDT by Pharmboy
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.
(Excerpt) Read more at online.wsj.com ...
RevWar ping list plus a few...thought this discussion here was important for FR.
Interpreting the Constitution by reading it. How radical. It would appear that Constitutional law has gone full circle and is returning to a doctrine of the flagrantly obvious. For which the liberals will take credit, no doubt. No truth is so simple that a liberal can’t resist the temptation of straining it through a complex matrix of smoke and mirrors-it’s just their nature.
“Is this poorly written and hard to follow, or is it me?”
Its beautifully written, though the whole privileges and Immunities question/issue is arcane to say the least. This particular argument was actually advanced many years ago in a state case involving the extent to which towns could restrict the right to carry a concealed weapon. In the end the decision turned on state law.
Thank you...at least it was arcane and not poorly written so I am a bit saved. I never would have gotten through law school...
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.What is strange is to see some conservatives, like the founder of the Federalist Society, apparently agreeing with this notion of the "Second Founding" that the liberals are cooking up.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.
What it boils down to is liberal courts (as always) will interpret and stretch the constitution any way they see fit. If they can use the 14th amendment to their advantage they will. Obama feels the constitution does not go far enough in defining what the government MUST do FOR the people and that the courts have not done enough in the area of economic justice, ie, wealth redistribution. You can bet that the judges he appoints will be ultra liberals (Marxists) who will be gunning to undo the economic wrongs done to the masses, especially the poor and minorities. But of course they will ignore the thing about right to “life.” Hold on to your shorts!
“I never would have gotten through law school...”
After about half way through the second year, law school is both arcane AND poorly written! :)
He also supported the Second Amendment. So, this is complex...but ignoring the Founders and shifting to Reconstruction is a bit daft, IMO...
Tell your son all of us at FR wish him the best and thank him for his service. And may God Bless Him and keep him safe...
The left's innovation here is to read it selectively. Namely to place such a robust emphasis on the amendments passed right after the Civil War that they consititute a "Second Founding" that trumps the principles of the original. In particular it would dismantle the thoroughgoing federalism of the 1789 constitution and allow the federal government to overrule the states when it determined that a state was violating a right. Their goal is to create legal ground for the federal government to force such "rights" as gay marriage on the states.
What's a little confusing is that the first case to test this strategy is the DC handgun ban. It's a conservative win in the sense that it struck down a limitation on gun ownership rights. But the libs like it because the legal reasoning that was used was that of the "Second Founding", which means that in the future similar reasoning could be used for their purposes (gay marriage, etc.).
I think it is rather confused. It looks to me like an attempt to make the most of a trend which is not likely to be reversed. That is; a recognition that states may not violate unalienable human rights because of the Fourteenth Amendment.
It betrays a shallow understanding, however, with the following: The 13th Amendment frees the slaves and there's no compensation," he says. "It's the biggest redistribution of property in history."
A reading of the Fourteenth Amendment which is more consistent with our Founders approach, is that the Fourteenth Amendment recognizes that ex-slaves are "people" and not "property". Being "people" they are entitled to protection of their unalienable rights, and no compensation is necessary to those who had previously failed to recognize those rights.
Thus, there is no reason to read the Fourteenth Amendment as providing justification for "redistribution of property", regardless of who benefits.
And by the way...
I never would have gotten through law school...
Somehow, Pharmboy, I think you could've handled it.
:)
In a nutshell, it says that the 13th, 14th and 15th amendments “should have” reshaped the constitution to extend federally defined rights through the states but didn’t due to Northern fatigue during reconstruction. The Left feels more energetic now and would like to re-write 100 years of Supreme Court decisions on the basis of the “original intent” of the 13th, 14th and 15th amendments rather than the limited interpretation used today.
In a nutshell, the author is saying that since we on the right support the position that the Constitution must be read and interpreted as it was written, and thus recognizing the original intent of the Constitutions’ authors, that same idea must also be applied to the post-Civil War Amendments (13, 14 1nd 15, but most specifically the wide-ranging 14th), in that they should be read and interpreted in the light of what the authors of those amendments intended.
The 14th Amendment is by far the most expansive, as it seeks to carve in stone the federalist idea (as viewed by Lincoln and others of his stripe) that the states are subordinate to the federal government, and that the rights and privileges and immunities of the citizens of the United States cannot be infringed by state or local governments. The argument is that prior to the Civil War/Reconstruction amendments the restrictions on government as set forth in the Bill of Rights only applied to the federal government, and not to the states; but, the argument continues, those CW/Reconstruction amendments made it clear that those restrictions applied to all governments within the United States, from the federal down to the smallest village’s Board of Trustees.
Thus, the rights and privileges and immunities of the individuals were seen as vast, but were later chopped down in the Slaughter-house cases. Hence, the article’s over-riding posit that the Slaughterhouse cases, as precedent, set back the privileges and immunities of the individual citizens.
The main focus of this article is that on social issues such as gay rights, abortion, and other rights of privacy issues (there is no mention of any right of privacy in the Constitution, but later courts read it into the “privileges and immunities” element of the 14th Amendment), the original intent of the authors’ of that amendment must be taken into account, and the argument is that the intent of those authors was to recognize a wide and expansive application of such privileges and immunities.
This argument does not, then, harm our Second Amendment rights, but rather supports them; though, conversely, it also uses the consevatives’ reliance on original intent to buttress the argument that the liberals’ pet causes are also constitutionally protected under the privileges or immunities clause of the 14th Amendment.
what a novel idea. To actually use the meaning of what is written to help understand what the writer(s) was trying to say, is, well, revolutionary!
I don't recall that the Heller decision involved any reconstruction era considerations. It was solely a discussion of the meaning of the Second Amendment which dates from the original ratification of the Constitution.
However, many expect that the decision in the Chicago gun ban case WILL turn on the meaning of the Fourteenth Amendment, since it addresses the applicability of the Second Amendment to the states.
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