There are some provisions of the Constitution, describing with some specificity the rights of the people, that are worded in absolute terms, but the courts recognize that, for utterly practical reasons, that those rights cannot really be absolute, that there have to be, in terms of how far freedom of speech and so on, extend, so judges make some exceptions to enumerated rights. But when judges make subjective decisions such as those, they are not usurping legislative power, they are exercising a power that Benjamin Cardozo called "interstitial legislating," a.k.a. "legislating between the gaps."
But according to you, it is just as legitimate for the Justices to define the parameters of enumerated rights as it is for them to define any and all of the unenuerated rights that were supposed to be "protected" from legislative (or executive or judicial) abridgment by the state governments. In the first case, judges are only legislating between the gaps; in the second case they are not legislating between any gaps, not within the parameters enacted by any legislatures; they're just plain legislating -- outside of any legislatively created parameters.
That is a distinction without a difference — in both cases judges are making what you admit are subjective decisions about the extent of fundamental rights. When judges develop the complex, nuanced and context-dependent legal regime governing free speech, they are doing the exact same sort of legislating you are critical of in the context of unenumerated rights.
And the legislature has, in fact, enacted the Fourteenth Amendment, which protects the "privileges or immunities of citizens of the United States." Courts are "legislating between the gaps" when they make subjective decisions about how those privileges should be protected.
Don't think you can speak on behalf of everyone who has any knowledge about the purpose of the Fourteenth Amendment, or that my views are lonely, individualistic, and idiosyncratic. Don't you dare speak that way. I have been studying this topic from numerous sources, not just from Justice Hugo Black. It also seems as if Oliver Wendell Holmes felt the same way as Black (he was just saying it decades before Black did). I have been influenced on this topic by Judge Robert Bork, and Professors John Hart Ely and David P. Currie. I have found reinforcement about this from Judge Learned Hand (especially from his essay, "How Far Is A Judge Free In Rendering A Decision").
I am telling you your views are idiosyncratic because they are — that is a descriptive claim, not a normative one. The things you believe to be true do not line up with what contemporary academic historians know about the Fourteenth Amendment.
All of those authors wrote about separation of powers, but I am not sure why Oliver Wendell Holmes would be any help in studying the original meaning of the Fourteenth Amendment. Ditto Currie and Ely. Bork is at least interesting as one of the proto-originalists, but advancements in historical scholarship have made most of his objections to the Fourteenth Amendment irrelevant.
If you are interested in studying the actual history of the Fourteenth Amendment, well-researched and detailed historical articles by scholars like
Randy Barnett and
Christopher Green are readily available for free on the internet. But don't complain when I say your views are idiosyncratic or outside the mainstream if you haven't read what the mainstream is saying!
Long section that's not about the original meaning of the Fourteenth Amendment omitted; I don't really care what John Hart Ely thought about this. Lot of attempts to make this about generic separation of powers principles — boring! I am interesting in discovering what the Constitution was intended to mean, not reasoning backward from what twentieth-century thinkers thought a proper judicial role was. As one poster previously observed:
First of all, I almost always use Originalism as my guiding legal philosophy, not Gorsuch's alleged "Textualist" technique. I believe in discovering what statutes and constitutions were intended to mean, not just read the text and assume that I have no other choice than to take every word in those documents literally.
If the Fourteenth Amendment was
intended, in its true original meaning, to protect unenumerated rights, no amount of Ely or Holmes can change that — we are all just going to have to live with that. Originalism means living with that history instead of trying to force it into your construction of what the ideal balance between the branches is.
Incidentally, this is another difference between your political views and the original understanding of the Fourteenth Amendment; Jacob Howard explained that the "privileges and immunities" that are explicitly protected in the Fourteenth Amendment "are not and cannot be fully defined in their extent and precise nature." Seeking precise definitions and parameters, he recognized, was not Congress's role.
That line is from Jacob Howard's speech on the floor of the Senate — Cong. Glob, 39th Cong., 1st Sess. 2765 (1866) — defining the rights protected by the Privileges or Immunities Clause.
Howard stated that the privileges or immunities of U.S. citizens includes two categories of what he called "fundamental guarantees." The first category includes those rights protected by Article IV, Section 2, as defined in part by
Corfield v. Coryell; Howard then listed several "fundamental" rights protected by Article IV, Section 2, some of which are enumerated and some of which are not. He then explained: “To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution.” He listed the enumerated rights, then concluded by stating that the Fourteenth Amendment is meant to protect this "privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution."
The Amendment was necessary, in Howard's words, to "restrain the power of the States and compel them at all times to respect these fundamental guarantees." The function of the amendment, in other words, is to "restrain the power of the States" to abridge the
unenumerated rights it protects — to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, to travel between states, and so on.
Howard said little about the power of the legislative and judicial branches, but the fundamental concept of the judicial power is that citizens have the right to invoke the protection of the judicial power against the invasion of the rights. There is no evidence of anyone believing that this language served only to empower Congress, and post-ratification legislation (including the passage of the Civil Rights Act guaranteeing the right to access courts, and establishing courts via the Freedmen's Bureau in which people could seek relief) strongly suggests a belief that these fundamental rights were enforceable in court.
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