Wednesday, November 30, 2011

Bad Originalist Logic

Here's a kind of argument originalists tend to make about the Fourteenth Amendment that I just hate: "X was a long-standing tradition of the northern states prior to 1868, therefore the Fourteenth Amendment was clearly not originally intended/understood to prohibit X." Hello? The Fourteenth Amendment was a big, radical change to our Constitution. Arguably, as Thurgood Marshall said on the two-hundredth anniversary of the Declaration of Independence, "while the Union survived the civil war, the Constitution did not." The Fourteenth Amendment transformed our Constitution in the entirety. It is not to be presumed that a great many deeply traditional state practices were not outlawed by that Amendment, the first piece of the Constitution in history to substantively limit a state's general powers. It changed things! Its entire point was to change things!

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