Legal Commentary

I want to thank Dan Markel and the Prawfsblawg gang for inviting me to guest-blog this month about my work on the historical understanding of the Bill of Rights and the Fourteenth Amendment.  It is likely that the Supreme Court will take up both issues when it considers whether to incorporate the Second Amendment.  Thus, the meaning of ?privileges or immunities? and the historical arguments for (and against) incorporating the Bill of Rights are once again the subject of intense judicial and scholarly debate.

In a series of posts over the next few weeks, I plan to blog about historical evidence-- some newly uncovered, some newly appreciated?regarding the original understanding of the Bill of Rights and the Reconstruction-era understanding of the relationship between the Bill of Rights and the Privileges or Immunities Clause of the Fourteenth Amendment.  Much of this evidence is explored in greater detail elsewhere, particularly in my recent book with Oxford University Press, The Lost History of the Ninth Amendment, and a paper I?ve recently posted on SSRN, The Origins of the Privileges or Immunities Clause, Part I: ?Privileges and Immunities? as an Antebellum Term of Art (forthcoming in the Georgetown Law Journal).

In my first substantive post, I?ll set the stage by discussing Originalism as an approach to constitutional interpretation.  In subsequent posts I?ll discuss the development of American constitutional privileges and immunities in a chronological manner, beginning with the Founding-era and ending at Reconstruction.  The overall project is one of synthesis?merging the federalist rights of the Founding with the libertarian rights of Reconstruction.  I will conclude that critical aspects of the Founding informed the construction and likely public understanding of the Privileges or Immunities Clause.  Federalism did not die in 1868?it was reconstructed.