Justice Peckham was *not* an originalist

January 13th, 2012

Gerard Magliocca (whom I met recently at AALS) links to Justice Peckham’s (you know, the guy that wrote Lochner) opinion in Maxwell v. Doe, holding that the Privileges or Immunities Clause does not incorporate the bill of rights.

Counsel for plaintiff in error has cited from the speech of one of the Senators of the United States, made in the Senate when the proposed Fourteenth Amendment was under consideration by that body, wherein he stated that among the privileges and immunities which the committee having the amendment in charge sought to protect against invasion or abridgment by the states were included those set forth in the first eight amendments to the Constitution; and counsel has argued that this court should therefore give that construction to the amendment which was contended for by the Senator in his speech.

What speeches were made by other Senators and by Representatives in the House upon this subject is not stated by counsel, nor does he state what construction was given to it, if any, by other members of Congress. It is clear that what is said in Congress upon such an occasion may or may not express the views of the majority of those who favor the adoption of the measure which may be before that body, and the question whether the proposed amendment itself expresses the meaning which those who spoke in its favor may have assumed that it did, is one to be determined by the language actually therein used, and not by the speeches made regarding it.

What individual Senators or Representatives may have urged in debate, in regard to the meaning to be given to a proposed constitutional amendment, or bill, or resolution, does not furnish a firm ground for its proper construction, nor is it important as explanatory of the grounds upon which the members voted in adopting it.”

Peckham was the anti-originalist. So I wonder where he got the 14th Amendment’s liberty of contract from?