Although conservatives generally embrace the original intent of the U.S. Constitution, while liberals see it as a living document, one legal scholar points out that a liberal read of the document constrains both left and right, while an interpretive one lends itself to exploitation by such political factions.
“When liberated from the original meaning of the Constitution, both left and right became free to use the courts, both to pursue their political agendas and to obstruct the political agendas of their opponents,” said Randy Barnett, a professor at Georgetown University Law Center. “This, in turn, has led to the politicization of the judicial selection process that we are experiencing today,” Barnett noted. “All these consequences and many more, are the prices to be paid for abandoning the original meaning of the Constitutions amended—the whole Constitution—each and every clause of it,” he added.
Against the backdrop of recent Supreme Court rulings and constant changes in government, the Chapman School of Law and the Federalist Society hosted an event recently at the American Enterprise Institute for Public Policy Research to discuss the future of federalism: scholars addressed tough Constitutional issues, as they debated over the appropriate level of judicial power and its role in deciding disputes over federal and state’s scope of authority.
“Debates over the importance of federalism are often obscured,” Barnet pointed out, while quoting a passage in a recent article he had written. “The fact is that there are not one, but three distinct versions of Constitutional federalism that have developed since the Founding,” he added.
Barnett, who is also the author of Restoring the Lost Constitution: The Presumption of Liberty, explained that the enumerated powers of federalism, the fundamental rights of federalism and the affirmative state sovereignty federalism are, at times, difficult to decide since they are of different origins.
“Each version of federalism developed during a different era in our Constitutional history: the Founding and afterwards, the Reconstruction and afterwards and the New Deal and afterwards,” Barnett explained. “One reason we do not distinguish each of these versions from the others is because we teach Constitutional Law by doctrine or topic rather than chronologically by era.” As a result, Garnett claimed there is considerable irony over the way the courts debate federalism.
Thus, Gonzalez v. Raich in 2005 has brought the age-old argument of federalism back to the forefront of modern-day cases and the Slaughter-House Case of 1873 has been a major reference point for the Supreme Court concerning Thirteenth and Fourteenth Amendment rights cases, Barnett noted.
“In cases beginning with the infamous Slaughter-House Cases, the Court effectively removed the Privileges or Immunities Clause,” which he says “was the operational heart of the Fourteenth Amendment.”
In his article, “Three Federalisms,” Barnett hits the nail on the head, as he explained the problem with the Reconstruction and After: Fundamental Rights Federalism Era, which is the focal-point of the Thirteenth and Fourteenth Amendment rights within the United States Constitution.
“The adoption of the Thirteenth and Fourteenth Amendments by the Thirty-Ninth Congress constituted a significant modification of the Enumerated Rights Federalism of the Founding,” Barnett reiterated, as also noted in his article. “Although preserving the enumeration of powers of Congress as a limit on federal power, the Reconstruction Amendments significantly altered the balance of federal power and the nature of federalism.”
Thus, “The Supreme Court is not without strong influence,” argued Jesse Choper, a professor at the University of California-Berkeley School of Law. “Should states make their own laws? Do the courts take a more active role?”
Choper argued, “The court should be very active in determining individual rights.” “I believe in aggressive enforcements of individual rights,” he added. “You need 51 percent of the Senate vote to get anything done in legislation.” “I think, the laws that exceed national power, require a large support of both the Congress and the Senate,” he added.
Barnett responded that the Thirteenth and Fourteenth Amendments are complex in nature, “suffice to say that the Thirteenth Amendment gave Congress and the courts the power to protect individuals from the badges and incidents of slavery.” “And, I would maintain that the Privileges or Immunities Clause of the Fourteenth Amendment amended the Constitution so as to adopt the abolitionist reading of the Privileges and Immunities Clause.”
Further, Barnett argued, “under this reading, states were prohibited from enacting laws that infringed upon the fundamental rights of any or all of their citizens.” “The Privileges or Immunities Clause prohibited legislation that either violated fundamental rights across the board or discriminated in their recognition and protection. Regrettably, this alteration of federalism by the Reconstruction Amendments was judicially repealed by the Supreme Court,” Barnett added.
In closing, Barnet rehashed the chief arguments that he had also highlighted in his article. “In my view, however, much is distorted by both back-door maneuvers. First, expanding clauses beyond their original meaning to compensate for previous misinterpretations is both under-and over-inclusive in ways too numerous and complex to identify here,” he argued.
“Second, the perceived need to expand the meaning clauses to reach the right results has delegitimated the idea of hewing to original meaning of the Constitution,” Barnet claimed.
Barnett rested his case with his third and final point, saying that “depriving Justices of the ability to base their decisions on a textual meaning that precedes and is independent of their own preferences, judicial review has been delegitimated as well.”
Irene Warren is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.
