Monday, December 30, 2013

Boyce on the Some Originalists

Bret Boyce, University of Detroit Mercy School of Law, has posted The Magic Mirror of 'Original Meaning': Recent Approaches to the Fourteenth Amendment, which appears in the Maine Law Review 66 (2013): 29.  Here is the abstract:    
The language of Section One of the Fourteenth Amendment, viewed in its legal and historical context, is replete with ambiguity. There is no scholarly consensus as to the amendment’s original meaning and its text and history do not permit us to choose with confidence among possible interpretations. Although there is wide agreement that the Privileges or Immunities Clause was Section One’s central provision, the original scope of that clause and its relation to Due Process and Equal Protection Clauses remain unclear. Recent interpretations literally run the gamut from the claim that the Privileges or Immunities Clause protected no new rights, to claims that it protected only a limited and relatively well-defined set of rights (variously defined by different interpreters), to the claim that it protected an open-ended set of rights that can never be completely specified or enumerated. A significant case can be made for and against each of these interpretations. In fact, the Fourteenth Amendment had not one but many “original meanings,” and to reduce its polyvalent text to a single “original meaning” is to traduce its history. Yet as the most important repository of individual rights in our Constitution, the Fourteenth Amendment must be given meaning by the people, their elected representatives, and the courts. The original understandings of its framers and ratifiers provide a point of departure for this interpretive endeavor, but can never fully specify the Amendment’s meaning for the present generation.
Boyce’s argument proceeds as a series of engagements with the originalisms of Philip Hamburger, Kurt Lash, Steven Calabresi, Jack Balkin, and Randy Barnett.

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