Letter to the Editor: The Trouble With Fair-Weather Originalists
Justice Samuel Alito’s explanation of how originalism disciplines judicial decision-making is a refreshing answer to those who see the Constitution as an empty vessel to be filled by transient social values (“Even Originalist Judges Make Mistakes,” op-ed, Oct. 3). The document means what it says. All the more reason not to ignore the 14th Amendment’s Privileges or Immunities Clause, as the Supreme Court has since 1873, shortly after the amendment was ratified. Alas, that is precisely what the good justice accepts, citing precedent—the high court’s Slaughter-House decision that year, which most scholars today believe to have been wrongly decided—adding that reviving the clause “would have opened a can of worms.” Had that rationale prevailed in 1954, we would still be living with the court’s 1896 “separate but equal” decision in Plessy v. Ferguson, effectively overruled in Brown v. Board of Education, which also opened a can of worms we’re still wrestling with today.
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Justice Alito’s proper respect for originalism’s restraint on judicial mischief is ill-served by the court’s reliance on the 14th Amendment’s less substantive Due Process Clause to do the work the Privileges or Immunity Clause was meant to do. Not for nothing does the latter come first in the amendment. Still more, unlike with the former, there is precedent to guide the court: Justice Bushrod Washington’s ample explication of Article IV’s Privileges and Immunity Clause in 1823 in Corfield v. Coryell. If we are all originalists now, as Justice Elena Kagan remarked in her confirmation hearings, let’s not be fair-weather originalists. The text is there for a reason.
Source: https://www.cato.org/commentary/letter-editor-trouble-fair-weather-originalists
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