So this morning, I’m reading the Hoover Institution’s Policy Review on the treadmill at 24 Hour Fitness, “Who’s Afraid of Original Meaning?” by George Thomas of Claremont McKenna College. I won’t pretend that I understand the twists and turns of his argument about why Scalia’s interpretation of Original Meaning isn’t as original as it should be. Part of the argument is about the incoherence of the Court’s concept of “fundamental” rights. I care about this, because the opponents of natural marriage want to say that marrying the person of your choice is a “fundamental right.”
George Thomas (no relation, I assume to Clarence) sees the incoherence of the Court’s position on “fundamental” rights.
Consider, for a moment, the right to travel. This right is not enumerated in constitutional text and yet it has been held to be a fundamental right. Curiously, the Court held it to be a privilege of citizenship under the Fourteenth Amendment in one of the few cases that rested on that clause since the Slaughter-House Cases. But the Court showed little interest in breathing life into privileges and immunities, or situating the right to travel in a larger context. Rather, the Court’s protection of the right to travel was more consistent with selectively protecting rights it deems fundamental. Rights that are as deeply rooted in history and tradition as the right to travel, but that touch on economic issues, for instance, have been erased from constitutional protection. And other rights, such as the right to privacy, have been deemed to be fundamental, but with little explanation of the scope or foundation of “privacy.” Thus private choices that deal with contraception or abortion are said to be fundamental. But it turns out that some private choices are not constitutionally protected. A union, for instance, may extract money from a non-union worker because in some indirect capacity the union “represents” his or her interests. Here we have an intimate relation — the private choice of who speaks for you — that does not, for reasons that go unexplained, fall under the right of privacy. This places the judiciary in the position of selectively protecting the rights it happens to be concerned with — whether they are held to be enumerated, part of ordered liberty, rooted in history and tradition, or simply fundamental.
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The bulk of the article deals with the recent Second Amendment case, McDonald v Chicago. This case dealt with a Chicago gun control ordinance. The Court held that the Second Amendment protected an individual right to bear arms. I take it that George Thomas approves of the outcome, the ordinance was overturned, but not the reasoning.
I happen to have read Clarence Thomas’s concurring opinion in McDonald. (Thomas’ opinion begins of pg 67 of the pdf.) My husband is a big Second Amendment guy, and wanted me to see Thomas’ ringing defense of the historical need for blacks to defend themselves, and the racist origin of early gun control legislation. When I read Thomas’ opinion, I saw all these Legal Magic Words, which I couldn’t quite make sense of. But I also saw that Clarence Thomas seemed to be trying to sweep away some of the nonsense that has been written about “fundamental rights,” and their grounding.
I get that the reasoning behind opinions is important, and that keeping new law in line with old law is important. But honestly, I have trouble understanding why the right to keep and bear arms, which has its very own amendment, needs to be “incorporated” under any grounds. The right is sitting right there, enumerated and the whole thing. You would think that would be adequate grounds under any even remotely originalist Constitutional interpretation.
But this article means to revisit New Deal jurisprudence, and give a firmer anchor to the concept of Original Meaning. He quotes a New Deal jurist as saying: “The problem for all of us became: How can we defend a judicial veto in areas where we thought it helpful in American life — civil liberties area, personal freedom, First Amendment, and at the same time condemn it in the areas where we considered it unhelpful?” I take it that this is the kind of thinking George Thomas wishes to revise.
So my question for my pro-life, pro-marriage legal friends is this: is there any hope of creating at least a somewhat clean slate on the question of which rights count as fundamental and why?
If you were starting from scratch, with the Constitution, the 14th Amendment and Original Intent, what would be the best doctrine for protecting rights that are actually fundamental without inventing new ones?