Wednesday, April 10, 2019

Still Searching for the Judicial “Holy Grail”

Perhaps no provision of the Constitution has received as much scholarly attention in recent years as the “privileges or immunities” clause, with a feverish pursuit to revisit—and overturn—the Slaughter-House Cases.

When I made light of this trend in a recent piece in American Greatness, I was surprised by the intensity of the reaction, from both originalist legal scholars and West Coast Straussians—both camps ostensibly conservative but increasingly resembling libertarians who favor an activist role for the judiciary.  I responded to Mike Rappaport in this space (“The Many Flavors of Originalism”), which triggered replies from both Rappaport and his co-author, John McGinnis.  Rappaport followed up with a full-blown critique of the Slaughter-House Cases, “The Unbearable Wrongness of Slaughterhouse.”  The reaction of Harry Jaffa’s disciples (here and here) was predictable, given their wont for endless disputation, but the movement in the originalist camp—from “old” to “new”—warrants examination.  


Rappaport is right, BTW.

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