This post answers the question that ended my last one, which is how seriously to take something Justice Kennedy wrote about the Fourteenth Amendment in judicially promulgating a federal constitutional right to same-sex marriage. But the post also does more: it points toward a general framework for thinking about the relationship between the Constitution and constitutional law.
What could be more amusing, quaint really, in the minds of many than meeting in New York City for two days to discuss tradition and law?
The modern conservative legal movement grew up in response to the Warren Court’s activism in the 1960s. In opposing the decisions of Justice Brennan and the rest, conservatives made use of the same arguments that liberals had used during the New Deal, when the Supreme Court had a conservative majority resistant to the Roosevelt program. In essence, the conservatives during the Warren years called liberals hypocrites for not deferring to the legislature, since deference was the claimed reason for the 1937 overturning of Lochner v. New York (1905). When the conservatives finally did get a majority on the Court in the 1980s, it was under a Republican president, and deference to the Reagan administration made a lot of sense for conservatives.
In a previous post, I argued that the Fourteenth Amendment protects economic liberties. One concern often expressed about such protection is that the courts would become “a perpetual censor” of all legislation. But the best evidence of the originalist standard of review shows that concern is misplaced. The standard forbids economically protectionist legislation directed against citizens within a state, but is otherwise relatively modest.
Here Justice Field’s dissent in Slaughterhouse is again instructive both about which rationales justify trenching on economic liberties and which do not. (While his opinion relied on the Privileges or Immunities Clause, two justices who would have also relied on the Due Process Clause concurred on these standards). Fields, of course, would have invalidated the Louisiana monopoly that made it impossible for other butchers within the state to compete in New Orleans. Thus, it is not a justification under the Fourteenth Amendment to prefer one group of citizens to another. Economic protectionism, which is the essence of a state granted monopoly without public regarding considerations, is thus unconstitutional.
Indeed, no Supreme Court case has ever clearly stated that state regulation based on economic protectionism or on favoring one class of citizens over another is constitutional. The fact that the Court at the height of the New Deal was unwilling to say that states were justified in preferring one class of citizens over another because of politics shows how unpersuasive it the attempt to conclude that purely protectionist legislation meets even the most lenient standard of review.
The harder question is how courts are to proceed, assuming that the defense of the legislation can be rooted in a putative police power objective.
Candidate Donald Trump’s recent proclamation that he is opposed to so-called “birthright citizenship” for the offspring of illegal aliens born in the United States has, like many of his campaign statements, set off hysterical paroxysms of outrage and protest. I do not support Donald Trump for President, but much of his appeal lies in the fact that he is willing to address taboo subjects in a way that the public—tired of candidates and elected officials cowed by rigid protocols of political correctness—finds refreshing. The topic of “birthright citizenship” is a perfect example.
Recently, I critically reviewed Damon Root’s new book, Overruled: The Long-War for the Control of the Supreme Court (see Part 1 and Part 2). In response, Root and others have now taken to the blogosphere in defense of the book and of libertarian constitutionalism. Unfortunately, Root just digs a deeper hole and his defenders only illustrate the problem with libertarian readings of the Privileges or Immunities Clause.
In his last public address, April 11, 1865, President Abraham Lincoln defined the problem of Reconstruction as how to end the war, re-inaugurate the national authority, and get the seceded states back into “their proper practical relation with the Union.” No provision in the Constitution explained how this should be done. There was no government to make a treaty with as in a war between independent nations. Lincoln observed: “No one man can give up the rebellion for any other man. We must simply begin with, and mould from, disorganized and discordant elements.” In Statesmanship and Reconstruction: Moderate Versus Radical Republicans…