Over the last few decades, the powerful impact of Conservatism on jurisprudential reasoning, both in law school publications and in judicial opinions, has caused progressives reluctantly to deal with original intent in Constitutional Law.
Jess Bravin, in the Wall Street Journal, reports on a fascinating new development, in which some liberals are considering a positive embrace of Constitutional Originalism philosophically.
A progressive originalism would reject the ruling of the Slaughter-Houses Cases of 1873 which limited the impact of the 14th Amendment’s guarantee of the “privileges or immunities” of individual citizens against the states.
The libertarian potential of such a move could be tremendous, and the conflict within the legal community on the left between an inclination to suppress States’ Rights while enhancing individual rights claims on the basis of the post-Civil War Amendments versus their love of regulation and generally enthusiastic embrace of the cult of Statism will be absolutely fascinating to watch unfold.
A must read.