Progressive Originalism

The March 14 edition of the Wall Street Journal carries an interesting story regarding efforts to use “progressive originalism” in upcoming precedent-potential cases. The Journal reports that the Center for Constitutional Accountability, a progressive public interest law firm run by Doug Kendall, and several liberal-leaning legal academics have undertaken a sustained effort to revive the Privileges or Immunities Clause of the 14th Amendment. The Journal reports:

So-called progressive originalism departs from the conservative strain by shifting focus from the 18th-century constitutional text to the three Reconstruction amendments ratified after the Civil War. . . . Viewed through the Reconstruction prism, the “Constitution turns out to be way more liberal than conservative,” says Yale law professor Akhil Reed Amar, a leading proponent of progressive originalism. . . . By applying methods blessed by conservatives to the neglected texts and forgotten framers of the Reconstruction amendments, liberals hope to deploy powerful new arguments to cement precedents under threat from the right and undergird the recognition of new rights.

The Journal’s report struck me as particularly interesting when juxtaposed alongside an article authored by Marquette alumnus Keith Alexander (BA ’98, MA ’00) and published recently in the Texas Review of Law and Politics. In developing an argument regarding the federal partial birth abortion ban, Alexander focuses on the original meaning of the 14th Amendment’s Equal Protection Clause:

Historical evidence suggests that the government’s duty to provide such protection was precisely what the framers of the Equal Protection Clause had in mind. In the aftermath of the Civil War, many newly freed slaves and Union sympathizers suffered from private acts of violence in the South — acts of violence that the former Confederate states would often fail to redress. Reports of the unpunished violence in the South outraged northerners, many of whom demanded a Congressional response.  Congress responded by creating the Joint Committee on Reconstruction (the “Joint Committee”), which reported that in the South there were “acts of cruelty, oppression, and murder, which the local authorities are at no pains to prevent or punish.” The local authorities’ failure to protect blacks and white Union sympathizers was not necessarily the result of discriminatory laws, but the failure of state officials to enforce “facially neutral laws . . . such as homicide laws when the victims were blacks or Union sympathizers.”

Alexander, 13 Texas Review of Law & Politics 105, 125-26. For this history, Alexander relies primarily on Rosenthal, “Policing and Equal Protection,” 21 Yale L. & Pol’y Rev. 53 (2003), Harrison, “Reconstructing the Privileges and Immunities Clause,” 101 Yale L. J. 1385 (1992), and Avins, “The Equal ‘Protection’ of the Laws: The Original Understanding,” 12 N.Y. L.F. 385 (1966).  (See also Chris Green on SSRN, citing these and several other authors and developing his own historical argument).

“Progressive originalism” sounds like an interesting project. If its goal is for certain rights liberals love to “simply be transplanted to a different home,” a clause that provides a better textual grounding, then at least it will focus more attention on the original intent and meaning of the Constitution. However, I’ll look forward to the day when Doug Kendall et al. file briefs arguing that we ought to get rid of the tiers of scrutiny and almost all the rest of our current equal protection analysis.

This Post Has One Comment

  1. Mike Zimmer

    If I am not mistaken, the Center has filed a brief in the case pending in the Seventh Circuit challenging the Oak Park, IL, ordinance banning handguns. The issue is the incorporation of the Second Amendment to become applicable to the states, a point not addressed in last Term’s Heller decision. The brief argues that the Privilege or Immunities Clause is a better basis than the Due Process Clause.

    While gun rights are not typically a progressive issue, the expansion of individual rights is.

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