Richard Albert has a nice piece at the Huffington Post titled America’s Forgotten Founders. The article implores originalists to not only consider our nation’s first founding in 1787, but also our second founding in 1868 with the ratification of the majestic 14th Amendment.
One passage really stood out:
Just as the Supreme Court looks to the intentions of the constitutional drafters to uncover the meaning of the original Constitution, the Court should also look to those who wrote and inspired the Fourteenth Amendment to understand the meaning of today’s modern Constitution.
Frederick Douglass, Harriet Beecher Stowe, John Bingham — these and other draftspersons and drivers of the Fourteenth Amendment are Americans as great as the founding fathers. Only by learning from them may the Court help make real the promise of liberty and equality that America’s second founding augured for the nation and its people.
The Supreme Court would therefore do well to expand its sphere of constitutional authority beyond Madison, Hamilton, Jefferson and other founding fathers to also include America’s forgotten founders.
Interpreting the Second Amendment based on how people understood its text in any year other than 1791—the year of its ratification—would be similarly unhelpful. The Supreme Court faithfully executed this strategy in Heller. But what about the Interpreting theSecond Amendment based on how people understood its text in any year other than 1791—the year of its ratification—would be similarly unhelpful. TheSupreme Court faithfully executed this strategy in Heller. But what about the right to keep and bear arms as applied to the states? Federal protection against state encroachments on individual liberty began with the ratification of the Fourteenth Amendment. 1868 is thus the proper temporal location for applying a whole host of rights to the states, including the right that had earlier been codified as the Second Amendment as applied against the federal government. 259 Interpreting the right to keep and bear arms as instantiated by the Fourteenth Amendment—based on the original public meaning in 1791—thus yields an inaccurate analysis. The respondents make this mistake in their McDonald brief, however, recounting the history of the Second Amendment in 1791 as dispositive of the meaning of the right to keep and bear arms in 1868.260
Originalists need to consider the proper temporal location when construing the Constitution. We addressed this issue in the context of the Second Amendment, but it really applies to interpreting any constitutional provision that relies on the 14th amendment–whether it be the due process clause, the equal protection clause, the understanding of a right incorporated to the states, and dare I say the privileges or immunities clause.
Thanks to Ilya Shapiro, my Pandora co-author, for the pointer.