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Balkin on McDonald

By Lawrence Solum

Jack Balkin has a post entitled McDonald: More Important in Theory than in Practice. Here is a taste:

Although both Thomas and I are originalists, I don't necessarily agree with his brand of orignialism. In my view, Thomas's opinion repeatedly makes the central mistake in contemporary original meaning orignialism that I have identified and rejected in my own writings: He conflates original meaningwith original expected applications and original understandings. Most of the evidence he marshals does not tell us the original meaning of the Privileges or Immunities Clause. It tells us how the generation that framed and ratified it expected it would be applied. It also offers an understanding of the principles underlying the clause. That evidence is very important for deciding how to create constructions of the Fourteenth Amendment to realize its purposes. But we should not equate those initial constructions with the original meaning of the amendment. I thus reject Thomas's argument that the Privileges or Immunities Clause is limited to those fundamental rights that persons living in 1868 would have protected, protected in the way that they would have expected. This approach cannot possibly account for the modern civil rights revolution, including rights guarantees that Thomas himself would support.

Highly recommended.

Full post as published by Legal Theory Blog on June 28, 2010 (boomark / email).