A Stitch in Haste

There were two very good posts today on what I call “Inkblot Jurisprudence,” referring of course to Robert Bork’s famous description of the Ninth Amendment and the Fourteenth Amendment’s Privileges & Immunities (P&I) Clause.

De Novo discusses the Ninth Amendment:

In short, those who want to guarantee certain social liberties, but not economic ones, should look at who supports renewing the 9th Amendment — most prominently of late, Randy Barnett — before deciding that it’s their new best friend. If the 9th Amendment is not an inkblot, it appears to have the potential to be a can of worms.

MY TAKE: Of course, someone who advocates “social liberties, but not economic ones” is a political and philosophical schizophrenic, but that’s a side issue. I’ll vote for the “can of worms” any day.

Dispatches provides an outstanding primer on the Incorporation Debate and the travesty of the Slaughterhouse Cases, 83 U.S. 36 (1873):

There can be no doubt, then, that those who wrote and adopted the 14th amendment intended for it to give to the Federal government the authority to prevent the states from violating the provisions of the Bill of Rights, as they stated so many times during the debate over ratification. And as one scholar has noted, those were precisely the arguments used in the press to explain and defend the amendment to the American people, so the public’s understanding of the amendment would have been the same. Those who opposed the 14th amendment agreed that it gave the Federal government the authority to overrule state actions which violated the US Constitution, and they argued against it precisely on that basis. So the historical record is clear that the 14th amendment did in fact incorporate the bill of rights against the states. Unfortunately, that clear meaning was distorted almost immediately by the Supreme Court in the Slaughterhouse decision in 1873.

MY TAKE: As I’ve said repeatedly about both the Ninth Amendment and Fourteenth Amendment P&I –It’s permissible to argue that a provision of the Constitution “doesn’t mean that,” but it is not permissible to argue that it “doesn’t mean anything.” Everyone who has done so, from the five Slaugterhouse justices in 1873, to Robert Bork and beyond, is intellectually dishonest.

Similar Posts:

• Can the Second Amendment Revive the Ninth and Fourteenth?
• When Your Constitution is Missing a Page or Two
• What Part of “Unenumerated” Is Unclear?
• I’m Glad I’ve Already Seen New Orleans…
• Rice on Domestic Spying: “Just Trust Us”

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