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Mark Pulliam and the Old Originalism

Mark Pulliam, who is a frequent contributor to our site, has written a new essay at American Greatness, entitled “The Pernicious Notion of ‘Unenumerated Rights,’” that attacks judicial activism from an originalist perspective. Mark sets his sights on various deserving targets and I agree with many of his criticisms.

Here is a taste of the essay:

Many Americans properly scoff at the idea that there are constitutional rights to things that are not actually set forth in the Constitution, such as the “right to a climate system capable of sustaining human life,” as Judge Ann Aiken, appointed by President Bill Clinton, ruled in Juliana. But once judges free themselves of the constraints of constitutional text, anything is possible.

But despite my agreement with some of the essay, I do take exception with the overall theory underlying it. Pulliam writes as an originalist and criticizes others as faux originalists. While I agree that we should be originalists and that some people are faux originalists, I don’t agree with Pulliam’s understanding of the idea. In fact, some people might regard Pulliam’s originalism as the false one.

One problem with Pulliam’s notion is that he builds constraint into originalism. While there are many versions of new originalism these days, Pulliam’s is a clear example of the old originalism. The old originalism rejects interpretations of the Constitution that it regards as conferring too much discretion on judges. But this is problematic and not real originalism.

The old originalism says: generally interpret the Constitution in accord with its original meaning, but do not follow the original meaning when it would confer excessive discretion on judges—that is, discretion that might allow “nonoriginalist” or “willful” judges to import their values into the Constitution. We can all understand why an originalist would be suspicious of such excessive discretion, especially in a world where such importation regularly occurs.

But that suspicion of excessive discretion, however reasonable, cannot justify an originalist ignoring the original meaning. That suspicion is a moral principle. If a “non-excessive-discretion principle” is not in the Constitution, then judges have no more right to follow it than they do to follow moral rights that are also not in the Constitution.

Let me take an example. The Slaughterhouse Cases misinterpreted the Privileges or Immunities Clause of the Fourteenth Amendment. Virtually every legal scholar, no matter of what viewpoint, believes the majority opinion in this case was mistaken. But Pulliam writes that the justices should not overturn the case because it would give willful judges the opportunity to make up rights.

That is not originalism. The Slaughterhouse Cases also raise another issue relevant to Pulliam’s essay. He talks of “enumerated” and “unenumerated” rights. That is an important distinction, but we should not ignore that the key distinction for originalism is something else—between rights that are protected by the Constitution and those that are not. The Constitution can protect rights without those rights being enumerated.

For example, the Constitution says “No State shall . . . abridge the privileges or immunities of citizens of the United States.” But the Constitution does not enumerate what those privileges or immunities are. Some of them may be enumerated by the Bill of Rights (and thus allow incorporation which Pulliam decries), but I believe that the privileges and immunities of citizens extended far beyond the Bill. Judges should protect those rights, even though they are not enumerated, because they are expressly protected by the Constitution.

If one wants to treat Privileges or Immunities Clause as an inkblot, one can certainly do it. The Supreme Court has largely done that for 150 years. But that ain’t originalism.

Reader Discussion

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on March 19, 2019 at 08:24:33 am

100% Agree. I was in fact planning to write an article saying something very similar but you beat me to it. Although mine would have also gone through the originalist sources as to why there are unenumerated rights in the Ninth Amendment which is fairly explicit about that. Maybe Pulliam's style constitution would be better, there are advantages and disadvantages to being explicit about which rights are protected rather than implicit. But that isn't the constitution we actually have, at least from an originalist perspective. The Founders wanted to limit the Federal Government to the maximum extent possible, and so they limited its powers to that which was enumerated, but left the rights unenumerated (which were understood as natural rights that only limited the power of government). They were not thinking of the implications of the Fourteenth Amendment because that didn't exist at the time. One could argue that the Ninth Amendment wasn't incorporated against the states through the 14th Amendment Due Process Clause or the P or I Clause. Its clear that many of the other individual rights were incorporated. I think it was given incorporated what was said at the time, but that is a much harder argument to make. But the argument in favor of unenumerated rights under the Ninth Amendment is easy.

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Devin Watkins
on March 19, 2019 at 09:16:38 am

Count me as one who agrees that "unenumerated" rights are not operational rights at all. The Court never picked up what Madison put down. From a recent article on this very subject: More than two centuries after its ratification, the Ninth Amendment has yet to constitute the primary basis of a single Supreme Court ruling. That some version or vision of natural law might have provided a primordial soup from which to extract additional rights is no longer of any practical significance. Judges today extract new rights from an entirely different pool, and our concern must be to impede them in that effort.

And at any rate, the 14th Amendment changed everything. The time for the 9th Amendment to have been utilized to install additional limitations on the power of the federal government was in the first 30 years or so of the Constitution.

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QET
on March 19, 2019 at 10:15:36 am

Devin:

"The Founders wanted to limit the Federal Government to the maximum extent possible, and so they limited its powers to that which was enumerated, but left the rights unenumerated (which were understood as natural rights that only limited the power of government). "

True, BUT...that does not necessarily imply that government COULD NOT restrict those "unenumerated rights. More importantly, it DID NOT mean that the States were powerless to limit those unenumerated rights - ONLY that one State could not disadvantage a sojourner from another State.

"Madison's Federalist No. 42. Madison stated: "Those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State . . . ."

What this demonstrates, to my mind, is that a) State level P&I is not coextensive with Federal P&I, b) State P&I may indeed be greater, but never less than Federal P&I, c) P&I may, and in Federalism theory was exzpected to differ from State to State, d) that State A may not impose its version of P&I upon any other State and, finally that States may under their Police Powers limit, to the extent they deemed proper some of the unenumerated P&I, provided however that such exercises of State Police Power did not infringe upon any of the rights guaranteed by COTUS and the BOR.

Consider Alaska's Petroleum revenue sharing to citizens or any State with "In-State" Tuition benefits as evidence of these differences in todays world. Is the Court to mandate that Washington, without petroleum reserves (or brains for that matter) should be compelled to issue me a check?

Why do I go on about this?

For the same reason that I have critqued Pullima's essay (and in private correspondence).
Because, I view the "untimely" death of the P&I Clauses to be both a lost opportunity to rejuvenate State police Powers AND an opportunity to LIMIT the rather broad discretion of the Black Robes whose tendency to "divine' new rights is well established as well as the Black Robes arrogance in asserting such a right (see Footnote Four and Four Plus).

Were P&I still recognizable in both fact and theory and further were it understood that a) States may reasonably limit some of those privileges / immunities AND b) that the Crafters did not intend to immanentize the Colonial eschaton, c) that they well understood that utopian schemes were destine to rather abrupt failure and d) consequently that some behaviors OUGHT to be PROscribed.

Look only to the so-called "virtue" codes of the time to sense this. While Bushrod Washington in Corfield v Coryell saw fit to list a rather expansive list of P&I, it does not follow from THAT listing that ALL P&I were to receive full guarantee nor that the States were powerless to restrict some of them.

Consider if certain aspects of privacy were to be subsumed under P&I. Could we not then have varying regimes by state respecting abortion, SSM, tranny right to paid gender surgery, etc etc. Indeed, in todays NRO, John Yoo and James Phillips have a nice essay on "privacy" and how the Black robes have made a complete and utter bollocks of it by judicially legislating their own policy preferences.
But what if this was (again, within reason and without infringement on the BOR) were left to the States to *police* libel, to ascertain whether electronic searches are / are not reasonable - would we still have "judicial legislation" passing as interpretation governing us? Would it still be necessary to rely upon substantive due process, as Pulliam rightly decries?

Debatable - but clearly, it seems to me, that resuscitation of P&I and the consequent re-recognition of State Police Power may well serve to RESTRICT the ambitions of the Black Robes. P&I IS real, was real and ought to be recognized - or are we to accept that parts of COTUS are simply surplus baggage.

BTW: Am currently reviewing Tocqueville's "Ancien Regime and the Revolution". Even Tocqueville recognizes Privileges and Immunities in pre-Revolutionary France.

Hey, if it is good for [Tocqueville] then it is good enough for me. (to be sung to the tune of "Inherit the Wind").

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gabe
on March 19, 2019 at 10:20:36 am

Oops, boy I am getting forgetful):

Pulliam is correct to be concerned about how far P&I will take us on this ever rapidly expanding road of "rights." However, recently we find that the Court is willing to review the historical record AT THE TIME of COTUS in order to determine meaning. It may easily be done with regard to P&I. what were those P&I's? How were they recognized? AND YES, some interpolation will still need to bne done to apply them in todays digital world - BUT it is a start. And it is not impossible to both limit some of the more exotic claims to P&I that may eventuate and to recognize that we simply cannot have all that we may envision.

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gabe
on March 19, 2019 at 12:19:08 pm

Congress could no more limit the rights protected under the Ninth Amendment then the freedom of speech. Now some regulation (such as time, place, manner restrictions), that do not limit or abolish the fundamental natural right would be permissible for many of the Ninth Amendment rights.

The Ninth Amendment, on its own, has nothing to do with states. It applied only against the Federal Government. Now we can argue if the Fourteenth Amendment incorporated the Ninth against the states, but first we need to define what the Ninth Amendment rights were before the Fourteenth Amendment.

The Privileges and Immunities Clause did apply against the states under the original constitution. But this clause only says that what natural rights and positive rights a state recognizes, must apply to citizens from other states as well. It is not, in and of itself, a mandate for a specific set of rights, merely equal rights for citizens from other states. Yes things like the “in-state” tuition benefits should be included in this. They could provide a citizen tuition benefit, but should not be able to provide benefits for their own state’s citizens higher than other state’s citizens.

The Privileges or Immunities Clause on the other hand may impose additional rights on states. It says whatever positive and natural rights the federal government recognizes that citizens have (such as those in the first ten amendments), are also applied to the states.

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Devin Watkins
on March 19, 2019 at 17:24:32 pm

"They could provide a citizen tuition benefit, but should not be able to provide benefits for their own state’s citizens higher than other state’s citizens."

Did you mean to say that a State may not favor its own citizens over a non-resident student. surely, that can NOT be - or else just about every State in the Union is in violation. In-state tuition IS not a guarantee under COTUS and thus whether "incorporation is a) proper or b) if it has ever been recognizable as under FEDERAL Legislative purview is beside the point. Clearly, a State may favor its own citizens in some matters and under the police Powers of the State, it may provide certain types of benefits to those who are citizens of that State.

to argue otherwise is to1) enhance the power of the Federal Government,2) accommodate the Black Robes noted tendency to arrogate to itself ever more authority under the guise of interpreting / constructing the Constitution and 3) eliminating any possibility of State discretion / initiative in the provision of privileges / immunities with respect to its own citizens.
Clearly, the State may not tax a non-resident at a higher rate for the same source of income BUT to deny to the State the ability to prefer its own in matters such as tuition is exemplary of the "centralizing' tendency of the federal branches - all three, BTW.

Again, consider Alaska. It does not provide the petroleum payments to those in-state non-citizen residents UNTIL they qualify for state citizenship.

(Alternatively, in my state, an out of state resident need not pay sales tax in certain instances. Under your conception, that out of state resident should pay sales tax as the State has no power to advantage or disadvantage its citizens.

The effect of this overly broad *intrusion* by the Judicial is to centralize ALL control of P&I at the Federal level and to a corresponding level diminish the power of the states to "police* its own affairs and to shut down the 'laboratories of democracy."

Is that what you intend?

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gabe
on March 20, 2019 at 14:24:15 pm

The Articles of Confederation said: “The free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.”
James Madison in Federalist #42: “Those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State.” For which Hamilton in Federalist #80 said forms the “basis of the union.”

Joseph Story described it as: “It is obvious, that, if the citizens of each state were to be deemed aliens to each other, they could not take, or hold real estate, or other privileges, except as other aliens. The intention of this clause was to confer on them, if one may so say, a general citizenship; and to communicate all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances.”

Or as the dissent said in Dred Scott (not the majority which were idiots): “this clause of the Constitution does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities. They are entitled to such as belong to citizenship, but not to such as belong to particular citizens attended by other qualifications. Privileges and immunities which belong to certain citizens of a State by reason of the operation of causes other than mere citizenship are not conferred. Thus, if the laws of a State require, in addition to citizenship of the State, some qualification for office or the exercise of the elective franchise, citizens of all other States coming thither to reside and not possessing those qualifications cannot enjoy those privileges, not because they are not to be deemed entitled to the privileges of citizens of the State in which they reside, but because they, in common with the native-born citizens of that State, must have the qualifications prescribed by law for the enjoyment of such privileges under its Constitution and laws. It rests with the States themselves so to frame their Constitutions and laws as not to attach a particular privilege or immunity to mere naked citizenship. If one of the States will not deny to any of its own citizens a particular privilege or immunity—if it confer it on all of them by reason of mere naked citizenship—then it may be claimed by every citizen of each State by force of the Constitution”

It was designed to prevent any state from giving rights or privileges to its own citizens over other citizens. Yes this means in-state tuition is unconstitutional (without any incorporation needed), nor can Alaska constitutionally provide a tax and then give that money back to its citizens but not citizens of other states who live in Alaska. Yes, many states violate this because the Supreme Court precedent has allowed them to do so, but it is still wrong under the P&I Clause. A state can discriminate between citizens and non-citizens, but not which state they are a citizen of. In my opinion.

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Devin Watkins
on March 21, 2019 at 05:52:08 am

[…] as a source of unenumerated constitutional rights.  In a response posted in this space, Professor Mike Rappaport insists that “[t]he Slaughterhouse Cases misinterpreted the Privileges or Immunities Clause of the […]

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The Privileges or Immunities Clause and Unenumerated Rights
on March 25, 2019 at 05:57:10 am

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on April 09, 2019 at 06:02:12 am

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.