Notes From Babel

Getting the Constitution Right

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Tim Sandefur’s amicus brief in McDonald v. Chicago—the case that will review the Slaughterhouse Cases decision that rendered the Fourteenth Amendment’s Privileges or Immunities Clause a nullity—provides a very nice analysis of the disparate constitutional and political theories behind the Fourteenth Amendment, the Privileges or Immunities Clause, the Congress that crafted and ratified it, and the Supreme Court that promptly emptied it of all meaning.  It demonstrates what happens when ideas are separated from their proper, underlying philosophical framework, why proper constitutional and political theory is so necessary to our political order, and why a judge who adheres to the wrong theory of constitutional interpretation subverts democracy.

It is exciting that there are still so many scholars and practitioners of constitutional law who continue to honor the primacy of the history of ideas that give substance to the words in our founding documents.

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Written by Tim Kowal

November 26, 2009 at 12:05 am

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