About that “Progressive Constitutional” Thing

With growing appreciation of Jack and Dahlia (and growing bewilderment at how any of us will keep up with our day jobs in a post- Convictions world), let me offer a few thoughts in response to Jack’s post on the Second Amendment and more broadly on constitutional interpretation by “progressive constitutionalists.”

Jack’s of course right that we should all know a lot more about the framers (and framing) of the 14 th Amendment. Count me in. I also couldn’t agree more with the general sentiment I take Jack to be expressing that those who continue to assert vigorous state rights-type arguments (in various contexts, most ridiculously perhaps when it comes to voting rights) are simply missing the reality that their side lost the Civil War.  Even on the more specific point, I would be willing to defer on grounds of comparative historical illiteracy to Jack’s account that one of the things the 14 th Amendment framers had in mind in passing the amendment was to make sure, I take it his historical argument would lead him to say to the Heller Court, that citizens would be able to carry guns with them pretty much anywhere, anyplace, for any reason.  For such is the result at least traditional strict scrutiny of regulation of a fundamental right would most likely bring.

But it is that last point that brings me back to the question my earlier post meant to be asking - namely, that however terribly inadequate (Charles Black said), ahistorical (as you would say), and otherwise laden with “baggage” (as Chief Justice Roberts would say) the Court’s fundamental rights jurisprudence has been in the past ~150 years, my naïve stare decisis-related assumption had been that those decided cases are entitled to at least some measure of “interpretive weight” as against the statements of the no-doubt-far-more-enlightened views of Senator Howard.  Of course it would’ve been better had Slaughterhouse been rightly (or even plausibly) decided, and we all hadn’t wandered off for the past century and a half down the less-than-perfect substantive due process road, and the associated imperfect road along which we incorporated some (but not all) of the Bill of Rights against the states.  But alas, that is the legal road we have traveled.  It is one thing for progressives to explore anew the heretofore untapped scope of the privileges of immunities clause.  It seems to me another thing to ignore, in any case in which any of that along-the-way jurisprudence seems inconvenient, everything else that might inform the modern Court’s understanding of what makes a right fundamental.