Do you support MarkD's proposed amendment?

[Adam_Trask]

This makes me think a lot about an exercise a professor of mine told me about that allegedly, Karl Llewlleyn, did with his law students. The purpose of the exercise was to try to get students to think about the differences between common law and civil law systems. He'd send one group out to write a statute to cover some crime. And then, he'd run through a dozen or so hypothetical cases with the other group about the same kind of problematic social behavior. He'd then, pull the groups together and pose each group a bunch of "edge cases" and ask how their statute or hypothetical "case-law" would deal with the case. The statute writers almost always found themselves with a more difficult task. They were prone to bigger disagreements because they didn't have any flexibility in their statute and found that they didn't always get the results they'd imagined if they were faithful to the letter of the law. Whereas the "common law" system was much more adept to handling the edge cases. It was easier for their group to find consensus through compromise.

There's a lot wrong with this, imo. But the biggest thing is thinking that we can solve our constitutional ills by doing away with the most pregnant and meaningful parts of our Constitution. The truth is, any new standard will eventually, produce new ambiguities and nuances. The court cannot avoid the "political thicket" (to borrow a phrase from Justice Frankfurter). It's been in that thicket from the day it was constituted. We may not like how it's used it's political power, but it's pointless (and frankly ill-advised) to try trim the brush. It will grow back, and it will grow back thicker and more mangled.

The doctrines of substantive due process and equal protection aren't perfect. But they remain important because they're flexible and open to change. For example, the kinds of discrimination MarkD wants to explicitly ban (with the notable open-season rule for any other kind of discrimination) aren't going to be the only kinds of relevant, harmful, and malicious forms of discrimination forever. And, there are certainly a number of ways to circumvent the bans (and move into open season land) by just changing the mechanism of discrimination. This should be troubling because it effectively gives the constitution a shelf-life and significantly reduces it's ability to adapt to new social problems and changed circumstances.

I think there's very little worth in this kind of utopian thinking. There is much more value in a common law approach because of it's ability to change and adapt to changing times. This value would be effectively destroyed by a monomaniacal obsession with clarity and consistency. In the end, the law will never be as clear as anyone would like because there are always unimagined ambiguities waiting in the wings, ready to surprise even the deafest drafter.

We have to remember that with something like a constitution, we must always keep our feet on the ground. We have to be realists. Courts are deciding real cases and controversies, and they need flexibility to do that well. A perfect system for today will be a broken, unusable system tomorrow. But a imperfect, functional system today may be a still imperfect – but better – system tomorrow.

[Adam_Trask]

And Mr. Jones still has no answer to the question I posed to him.
It's important to discuss this because if you understand the interpretation that the SCOTUS gave to the Bill of Rights in Barron v. Baltimore, you'll understand as well that the Ninth Amendment was not imposed on the states. And all I am proposing with the amendment I drafted is to keep the Ninth Amendment's original interpretation as the status quo. If you can't understand that, then you're the one who's crazy.


The First Amendment does indeed begin with the word "Congress," and the Tenth Amendment is a clear expression of the idea that the federal government has limited powers. The First and the Tenth are the bookends, and all of the rest of the Bill of Rights is sandwiched in between the bookends. Why is so hard to understand that all of the Bill of Rights were only intended to limit the federal government as well? Just because the words don't literally say so? Look at the first ten amendments as if they are a row of books on a shelf. The first book makes one point about the federal government's limited powers, as does the tenth book. There's nothing wrong with assuming that all eight of the other books were also intended to have the same limited meaning. And the historical context of WHY the Bill of Rights was proposed also supports that interpretation.


Hurray for Rep. John Bingham!! He changed his mind once he saw a persuasive legal argument that contradicted his original theory about the meaning of the Bill of Rights. He realized that he had erred, and that the original meaning of the Bill of Rights was precisely as Chief Justice John Marshall had explained it in the Barron opinion. He respected the original understanding of a crucial part of the Constitution once he saw it correctly explained, and that's remarkable! He was, in a sense, an Originalist. It's just too bad that he did not do a good job of writing an Equal Protection Clause that was particularly clear (instead of overbroad and impossible-to-take-literally).

I'd also like to point out something very interesting about your reasoning here. In paragraph two, you advocate (what I think is) an esoteric reading of the Bill of Rights. You invent the metaphor of a "book" with 10 volumes. Using that metaphor, you note that  the 1st and 10th seem to be concerned with the Federal Governments powers. From that observation, you conclude that the only interpretation of the rest of the Bill of Rights (2-9) that can stand is an interpretation that they are only binding on the Federal Government (citing Barron v. Baltimore).

But then, in the next paragraph, you denigrate the EPC because it's "impossible-to-take-literally." If we were to take amendments 2-9 literally, your interpretation above could not stand!

I'm not trying to disagree with your theory against the incorporation of the bill of rights (I do disagree, but that's another issue altogether). But, I do want to point out that your own interpretation, above, of amendments 2-9 is also not literal. You need an interpretive gloss. And it seems ultimately to me that you're reaching for the "rule of mischief" (i.e., you're looking to the intent of the founders by asking the question: what mischief were these provisions trying to remedy?)

That's all to say that all legal reasoning requires us to take a step away from the literal text. We use all kinds of arguments (historical arguments and arguments about legislative intent, i.e., originalism, structural arguments, textual arguments, arguments based on "natural law", etc.). Even in a utopia, you need these kinds of argument.

I typically look to a different kind of hermeneutic than you do. I like background common-law doctrines liked the doctrine of changed circumstances or the "golden-rule" (i.e., void b/c contrary to public policy). Even noted originalists like Justice Scalia made arguments about "constitutional culture" to get results he wanted that we're aligned with the literal text of the Constitution (See Lucas v. South Carolina Costal Council: "In the case of land, however, we think the notion pressed by the Council that title is somehow held subject to the "implied limitation" that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become part of our constitutional culture.")

[Adam_Trask]

I am merely trying to narrow the power of judicial review and to push federal courts towards exercising more judicial restraint. ...  I think my proposal will make constitutional law BETTER, and I certainly am not stupid enough to think it will end up being perfect. I drafted this proposal because I have high anxiety about how the SCOTUS is using the due process and equal protection clauses of the Fourteenth Amendment. (And apparently some Justices think the Ninth Amendment justifies interpreting the Fourteenth the way they do.) Here's some high anxiety I read about a long time ago:

If you treated my argument fairly, you'd see that I'm mostly skeptical that attempting to narrow and clarify the 14th amendment will actually limit the power of the federal judiciary. The truth is, the justices will find any excuse whatsoever to achieve the ends they want. Take for example a recent case that does not involve substantive due process or the equal protection clause – 303 Creative. There is nothing about the text of the 1st amendment that should invalidate non-discrimination laws as applied to market actors. But the S.C. can do tons of mental gymnastics to reach the result, namely by finding that website creation is "expressive." This is very, very far from anything intended by the text of the first amendment (which I'd argue, has very little to do with commercial activity of this kind – see background common law principles on common carriers and places of business open to the public generally – and see more specifically Blackstone on Inns and Taverns).

I don't like the 303 Creative decision. I think it's wrong. But, that never going to stop the justices from making their decision, in this case, effectively limiting the power of many state's non-discrimination laws. Thus, I don't think "narrowing and clarify" the language of the 1st amendment will stop them from doing any of this non-sense. The problem isn't with the language of the constitution, it's the Justice's utter lack of regard for principle in seeking a desired end.

In truth, I think your proposal will do one thing – help conservative justices further decimate the advances of the Warren Court. I do think it's telling that you're inspiration is the dissent in Griswold. But, taking a step back into history, I'm going to argue that various uses of substantive due process are different and principled in a way the current court is not.

First, let's start with the fact that our founding documents demonstrate a reverence for the rights of individuals – with particular references for rights relating to self-definition and individual autonomy (as opposed to rights as market place actors). What is line from the Deceleration of Independence that every school child knows: that we possess unalienable rights to "life, liberty, and the pursuit of happiness" (notice that the Continental Congress actually replaced Locke's right to property with a "right to happiness). From there, the Constitution through the 9th amendment establishes a zone of certain unalienable personal rights (I'd argue that could be summarized with the Deceleration's words above).

Moving from here to Griswold :It's hard to argue against the fact that Griswold was a major step-forward for women's rights in this country. Furthermore, Griswold is consistent with this country's "constitutional culture" (see above) that values individual freedom and autonomy – especially over major life decisions. Yes, legislatures – like Connecticut's – passed laws to ban contraception and that is part of the democratic process. But, the Court exists precisely because democratic majorities sometimes infringe the rights of individuals. In this arena, the Court does check the other branches of government against majoritarian abuses.

Moving back to the economic substantive due process which Mr. Holmes was so worried about :Yes, I'll readily admit that substantive due process was used to invalidate quite a lot of New Deal proposals – and while I think they were wrong, I do think their methodology wasn't totally flawed. Up to that point, Americans had a tradition of free trade and New Deal proposals were a bit alien to Americans understanding of the proper role of the Federal Government in regulating the economy. But the truth is, ultimately, this economically libertarian part of American political culture was throughly transformed by the Great Depression and the New Deal. Ultimately, it's telling that as Roosevelt continued to win elections, the Courts views on these matters changed as well – reflecting the major change in American political/social values wrought by that period in our history.

Moving to the present day : Ultimately, it's only the most radical in our country that want to be rid of substantive due process entirely. Note that the Dobbs opinion expressly did not intend to upset other areas of substantive due process: such as the right to direct your child's education, the right to make certain medical decisions (albeit, abortion not included because, in the opinion of the court, regulating abortion requires balancing the child's right to life and the mother's right to liberty – however fraught I think that reasoning is, it doesn't totally dismiss the value of our "right to liberty."). And I think this makes sense because literally all (but the most radical) Americans would be very, very upset if the other rights protected by substantive due process were thrown in the trash.

P.S. on Constitutional interpretation :Furthermore, man, the fact that you want to abandon common-law methods of constitutional interpretation and invent – idk what – other methods for constitutional interpretation shows demonstrates a lack of understanding of how our constitutional system works (both historically and currently). First of all, almost all of the drafters of the U.S. Constitution were common law lawyers who imagined – and declared – that the constitution would be interpreted by background common law principles (see The Original Understanding of Original Intent, H. Jefferson Powell, Harvard Law Review, V. 98, N.5). Second, originalism, a judicial philosophy you seem to subscribe to is quite literally the same as the rule of mischief.